New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 565728 - NYC: 221121

FINDINGS OF FACT AND DECISION

Case Number: 221121

Students Name: REDACTED

Date of Birth: REDACTED

Date of Hearing: 12/22/21

02/17/22

03/21/22

04/28/22

Home District: REDACTED

Service District: REDACTED

Hearing Requested by: Parent

Hearing Officer: Tina Millman

Record Close Cate: June 6, 2022

NAMES AND TITLES OF PERSONS WHO APPEARED 12/22/21

FOR THE DOE

REDACTED, DOE Attorney

FOR THE PARENT

REDACTED, Legal Assistant

NAMES OF PERSONS WHO APPEARED 02/17/22

FOR THE DOE

REDACTED, DOE Attorney

REDACTED, Special Education Teacher

FOR THE PARENT

REDACTED, Parent Attorney

REDACTED, Parent

NAMES OF PERSONS WHO APPEARED 03/21/22

FOR THE DOE

REDACTED, DOE Attorney

FOR THE PARENT

REDACTED, Parent Attorney

REDACTED, Parent

REDACTED, Asst. Head and Math Coordinator- REDACTED School, REDACTED REDACTED, Head Teacher, REDACTED

NAMES OF PERSONS WHO APPEARED 04/28/22

FOR THE DOE

REDACTED, DOE Attorney

FOR THE PARENT

REDACTED, Parent Attorney

REDACTED, Parent The matter of REDACTED (hereinafter " the student “or REDACTED came before me for determination on December 22, 2021, February 17, 2022, March 21, 2022, and April 28, 2022, in accordance with the provisions of the Individuals With Disabilities In Education Act (IDEA), Section 504 of the Rehabilitation Act, and Article 89 of the New York State Education Law, for the failure of the New York City Department of Education to provide a Free Appropriate Public Education to “the student” for the 2021-2022 school year.

PROCEDURAL HISTORY

The proceeding was initiated at the request of the parent by correspondence dated November 8, 2021. (Ex A) I was appointed as the Impartial Hearing Officer on November 9, 2021.

The compliance date was extended as a result of requests by both parties in light of the possibility of settlement and witness availability. Appended to the record are lists of persons in attendance and of documents submitted into evidence The DOE CASE The DOE submits 9 documents into and calls one witnesses. The DOE attorney asserts that a FAPE was offered to the student and that the 10/8/20 IEP recommending the student be placed in a 12:1:1 class for Math, SS, ELA and Science along with SETSS, Direct-Group service 5 periods per week and the related services of Counseling 1 x 30 individual, 1 x 30 group and OT 2 X 30 individual was designed to address the students’ educational needs and would enable REDACTED to make meaningful progress during the 2021-2022 school year.

The DOE attorney maintains that it is the IEP that is in effect at the time of the unilateral placement that is controlling. Here at the time of the unilateral placement and at the time the Parent signed the contract for the 21-22 school year, the October 8, 2020 IEP was still in effect and that is the IEP the DOE will be defending. (Tr. 21-22, IHO Exhibit I)

In their closing brief the DOE attorney notes when a parent seeks tuition funding for tuition at a private school, the IDEA mandates that a student’s IEP at the time of the enrollment controls. As such, the Student’s October 2020 IEP must be reviewed because it was valid at the time the Student was enrolled at the Unilateral Placement for the 2021-2022 school year.

The evidence presented demonstrated that the October 2020 IEP provided the Student with a FAPE for the 2021-2022 school year. The IEP team complied with the procedural requirements of the IDEA and New York State Regulations. Furthermore, the IEP recommendation was reasonably calculated to allow the Student to obtain meaningful educational benefits.

The Parent failed to present sufficient evidence to demonstrate that the instruction offered at the Unilateral Placement was specifically designed to meet the Student’s needs.

As the Department offered the Student a FAPE for the 2021-2022 school year, the Parent’s rejection of the IEP was unreasonable. Further, the Parent failed to provide the Department with a ten-day notice containing the Parent’s challenges to the October 2021 IEP (an IEP that was not effective at the time of the Student’s enrollment at the Unilateral Placement for the 2021-2022 school year). Therefore, the equities favor the Department.

If an award of tuition funding is granted, the award must exclude any cost associated with religious instruction.

The DOE attorney asserts there were no challenges to the October 2020 IEP in the parents DPC and therefore any such challenges made after the filing cannot be considered. In their brief the DOE asserts “The scope of the impartial hearing is limited to the issues raised in the DPC. 8 NYCRR 200.5 (j)(l)(ii), 20 U.S.C. 1415F)(3)(b), B.P. v. New York City Dep’t of Educ., 841 F. Supp. 2d 605, 611 (E.D.N.Y. 2012); R.C. ex rel. M.C. v. Byram Hills School Dist., No. 11 Civ. 3938, 2012 WL 5862736, p. 11 (S.D.N.Y. Nov. 2012). Any issues or allegations not contained within the four corners of this complaint are not to be considered. Id. Similarly, any claims set forth within the DPC that was not addressed at hearing should not be considered as they are deemed abandoned. Application of the Dep’t of Educ., Appeal No. 09-037 at 14.”

They maintain that, the Parent failed to raise any challenges to the October 2020 IEP in the DPC. Although the Parent may have raised challenges to the October 2020 IEP in her ten-day notice, these challenges were not raised in the DPC. As such the challenges cannot be considered.

The DOE witness, REDACTED testified as to what the DOE viewed as the student’s most significant needs based on its review of the evaluations and how the goals in the IEP addressed those significant needs. She testified as to why the IEP will allow the student to make meaningful progress. (Tr. 41-53)

The DOE’s witness believed that the recommended program of a 12:1:1 class with SETSS and related services was appropriate for the student. (Tr. 55 )

The DOE asserts they met their Prong I burden, the Parents failed to establish the appropriateness of the Unilateral Placement and that the equities favor the DOE. They maintain the Parent’s rejection of the program recommendation was unreasonable and that the Parent never intended to enroll the Student in a public school as evident by the Parent signing the enrollment contract with the Unilateral Placement in April 2021, many months before the 2021-2022 school year commenced.

Additionally, they claim the Parent did not file a ten-day notice to advise the Department of the Parent’s challenges concerning the October 2021 IEP (Parent Exhibit E), an IEP developed long after the Parent had already enrolled the Student at the Unilateral Placement for the 2021-2022 school year. Since the Parent did not provide the Department with notice of her concerns with the October 2021 IEP, the Parent must be barred from challenging the October 2021 IEP in this matter.

Thus, the relief request must be denied because the equites favor the Department.

See (IHO EX I)

THE PARENTS CASE

The Parent offers 22 documents into evidence (A-V) and in lieu of direct testimony enters the affidavits of Dr. REDACTED (Exhibit T) having him available for cross-examination by the DOE. REDACTED assistant head of the lower school and the lower school math coordinator, REDACTED and the Parent REDACTED were called to testify.

The parents maintain that the record shows that the Department did not – for the 2020-2021 or 2021-2022 school year – offer the student an appropriate plan and placement. Per the October 2020 IEP, the Department recommended that REDACTED attend a 12:1 classroom with 5 sessions of SETSS per week. They maintain the program could not have possibly provided the individualized support recommended in REDACTED neuropsychological report.

They assert the unilateral placement has been providing REDACTED with the individualized instruction and support that REDACTED needs to make educational progress and that the Parent has cooperated with the DOE, participated in the special education process, and given adequate notice. The Parent is seeking a determination that the Department failed to provide REDACTED with a free, appropriate public education for the 2021-22 school year, that REDACTED is an appropriate placement reasonably calculated to result in educational progress, and that the equities do not bar reimbursement.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Two purposes of the IDEA (20 U.S.C. sect. 1400-1482) are (1) to ensure that with disabilities have available to them a free appropriate public education (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. sect. 1400 (d) (1) (A)-(B); see generally Forest Grove v. T.A., 129 S. Ct. 2484, 2491 (2009); Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 (1982).

A FAPE is offered to a student when (a) the Board of Education 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 206-207; Cerra v. Pawling Cent. Sch. Dist., 427 F. 3d 186, 192 (2d Cir 2005) ). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally in adequate under the IDEA. ( A.C. v. Bd. of Educ., 553 F. 3d 165, 172 (2d Cir. 2009); Grim v. Rhinebeck Cent. Sch. Dist., 346 F 3d 377, 381 ( 2d Cir. 2003); Perricelli v. Carmel Cent. Sch. Dist. 2007 WL 465211, at 10 (S.D.N.Y. Feb 9, 2007) ).

Under the IDEA, if a procedural violation is alleged, an administrative officer may find that the student to not receive a FAPE only if the procedural inadequacies(a) impeded the students’ rights 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. sect. 1415 (f)(3)(E)(ii); 34 CFR 300.513 (a) (2); 8 NYCRR 200.5 (j)(4)(ii); Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-526 (2007); A.H. v. Dep't.. of Educ., 2010 WL 3930028, at *2 (2d. Cir. Aug. 16, 2010; E.H. v. Bd. of Educ., 2008 WL 3930028 at *7 (N.D.N.Y. Aug. 21, 2008); Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 (S.D.N.Y. 2007) aff'd, 2008 WL 3852180 (2d Cir. Aug. 19, 2008)). 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 (20 U.S.C. sect 1415 (f)(3)(E)(i) ). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak v. Florida Union Free Sch. Dist., 142 F. 3d 119, 130 (2d Cir. 1998); see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education" not one that provides everything that might be thought desirable by loving parents " (Walczak, 142 F. 3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F. 2d 563, 567 ( 2d Cir. 1989) (citations omitted); see Grim, 346 F. 3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189,199; Grim, 346 F. 3d at 379; Walczak, 142 F. 3d at 132). Nonetheless, the school district must provide "an IEP that is "likely to produce progress, not regression, and.....Affords the student with an opportunity greater than mere "trivial advancement" (Cerra, 427 F. 3d at 195, quoting Walczak, 142 F. 3d at 130 ( citations omitted); seeP. v. Newington Bd. of Educ., 546 F 3d 111, 118-19 ( 2d Cir. 2008); Perricelli, 2007WL 465211 at *15). The IEP must be " reasonably calculated to provide some meaningful benefit " (Mrs. B v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see Rowley, 458 U.S. at 192).

The students recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. sect 1412(a)(5)(A); 34 CFR 300.114 (a)(2)(i), 300.116 (a)(2);8 NYCRR 200.1 (cc), 200.6 (a) (1); see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F. 3d 105,108 (2d Cir. 2007); Walczak, 142 F 3d at 132; E.G. v. city Sch. diet. of New Rochelle, 606 F. Supp. 2d 384,388 (S.D.N.Y. 2009); Patskin v. Bd. of Educ., 583 F. Supp. 2d 422,428 (W.D.N.Y. 2008) ). An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the students’ needs (34 CFR 300.320 (a)(1); 8 NYCRR 200.4 (d)(2)(i); Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3,2008), establishes annual goals related to those needs (34 CFR300.320 (a)(2); 8 NYCRR 200.4 (d)(2)(iii)), and provides for the use of appropriate special education services (34 CFR 300.320 (a)(4); 8 NYCRR 200.4(d)(2)(v); see Application of the Dep't. of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't. of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for unilateral placement has the burden of proof regarding the appropriateness of such placement (educe. Law sect 4404 (l)(c); see M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256 at *7 (S.D.N.Y. Aug. 27, 2010) ).

Under the second criteria of the legal standard, the Parent bears the burden of showing that the private school placement selected is appropriate. (Application of a Child with a Disability, No 95-57, Application of a Child with a Disability, No. 94- 29,Application of a Child with a Disability, No. 93-34) The Parents must show that the private school placement offers an educational program that meets the student’s special education needs. (Burlington, 471 U.S. at 370, Application of a Child with a Disability, no. 94-20) The private school need not be approved by the state educational agency to provide instruction to children with disabilities. Florence County School District Four et. Al. v. Carter, 510 U.S. 7 (1993)). It is also not required that the private school employ certified special education teachers, or have its own IEP for the student. (Application of a Child with a Disability, No. 94-20)

Finally, the third criterion of the Burlington standard requires a balancing of the equities in determining whether reimbursement should be awarded.

I begin by noting that I credit the testimony of all the witnesses who appeared at the hearing. The Decision as stated below is based on the testimony and evidence presented at the hearing, which is detailed above with appropriate citations to the record.

Prong I The first step is to determine whether the DOE offered to provide the student a FAPE. (Mrs. C. v. Voluntown, 226 F. 3d 60,66 (2nd Cir. 2000) (1982)).

After review of all evidence and testimony I do not find that a FAPE was offered to the student for the 2021-2022 school year. The evidence does not support that the 10/8/20 IEP recommending the student be placed in a 12:1:1 class for Math, SS, ELA and Science along with SETSS, Direct-Group service 5 periods per week and the related services of Counseling 1 x 30 individual, 1 x 30 group and OT 2 X 30 individual was designed to address the students’ educational needs and would enable REDACTED to make meaningful progress during the 2021-2022 school year. The Oct 2021 IEP was created after the start of the 21-22 school year.

The DOE asserts that the Parent failed to raise any challenges to the October 2020 IEP in the DPC. They assert the Parent raised challenges to the October 2020 IEP in her ten-day notice, but not in the DPC and claim such challenges cannot be considered. After reviewing the DPC I do not concur with the DOE’s claim. The DPC clearly challenges the appropriateness of the October 2020 IEP and as such any challenges to the October 2020 IEP will be considered.

“A Prior Written Notice and School Location Letter sent to the Parent on June 28, 2021, recommended P.S. REDACTED, which is the same school that the Department had recommended for the 2020-2021 school year. The Parent had previously tried to reach out to this school in order to determine its appropriateness for the 2020-2021 school year, to no avail. The Parent contacted the parent coordinator at P.S. REDACTED for the 2021-2022 school year, and was informed that there would be no school tours but that the principal would call her back. To date, the Parent has not received a call back from the school.”

“Our office sent a letter on behalf of the Parent on August 25, 2021, informing them of the Parent’s concerns with the October 2020 IEP which was the latest IEP the Parent had. Our office informed the DOE that, unless the Parent was provided with a program and placement by the start of the school year, she would enroll REDACTED at the REDACTED and seek funding for tuition and transportation.”( Ex A)

It is evident that the Parent challenged both the October 2020 as well as the October 2021 which was created after the start of the school year.

The student was evaluated by Dr. REDACTED from the REDACTED. According to Dr. REDACTED, the student needed evidence based instructional programming by trained providers who would be able to support REDACTED language based and attentional needs in a small, specialized setting. According to Dr. REDACTED’ report and observations, the student struggled even with the 2:1 literacy reading support and “When engaged in schoolwork with heavy reading or writing demands, in particular, REDACTED attention span is more limited, and REDACTED needs support from an adult to stay on task.” The DOE’s witness Ms. REDACTED was asked why the 12:1 classroom setting was appropriate? She answered it was the “least restrictive environment” where the student could interact with more of REDACTED peers. The evidence shows the student requires a lot of individual support to make academic progress. The DOE’s witness, Ms. REDACTED testified that the Team recommended SETSS for ELA as they were aware the student required more support than REDACTED would receive in a 12:1:1 class. Although the Team recognized the students need for more individualized support she testified the SETSS could be in a grouping ranging from individual service to a group of up to 8 students as determined by the provider. Although the student was recommended for SETSS for ELA, REDACTED may not have had the support REDACTED required. Ms. REDACTED testified she recommended SETSS 5 times per week “because we wanted to make sure REDACTED had the extra support” in reading and writing. However, the student is reading and writing throughout the day, not just for one period a day.

At the time of the October 2020 IEP, the student was receiving instruction in groups of 6 or 8 students with two teachers. Although the record shows the student made progress it was progress made receiving the support of the smaller class.

The October 2021 IEP was not defended by the DOE as they contend the October 2020 IEP was the operative IEP at the time the student was unilaterally placed. It is noted the October 2021 IEP offers less support for the student as SETSS was removed. It is also noted the October 2021 IEP was not drafted until after the start of the 21-22 school year.

For the aforementioned reasons, I find a FAPE was not provided to the student for the 2021-2022 school year.

Prong II

Having found that a FAPE has not been offered I will look to the appropriateness of the Parent’s unilateral placement.

The DOE in their closing brief alleges

“Here, the Parent failed to present sufficient evidence to demonstrate that the instruction provided by the Unilateral Placement was appropriate for the Student. Thus, the relief requested must be denied. “

Although the DOE challenges the appropriateness of the parents’ unilateral placement they fail to state a reason why.

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement. No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents 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, 489 F.3d at 112; see, Frank G., 459 F.3d at 364-65.

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 this 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 Parents have sufficiently supported their burden of the appropriateness of REDACTED.

The Parent’s witness REDACTED, Assistant Head of the REDACTED School and REDACTED Math Coordinator testified that REDACTED had 200 students enrolled and the average classroom size was 13 students with two teachers and one assistant teacher. For reading, groups are even smaller (3-8 students). And the student received 2 sessions of SLT per week and once per week OT.

According to Ms. REDACTED, the student was placed in a classroom of 13 but REDACTED reading group is made up of four students and REDACTED math group consists of five students. Ms. REDACTED credibly testified on cross that the school utilized multi-sensory instruction and a flexible approach to teaching. She notes that REDACTED required both to make progress. A flexible approach is utilized as the teachers along with their supervisors needs to “find the individualized pacing and supports each student needed”. (Tr. 111) Clearly instruction was individualized for the student based upon his unique educational needs.

When Dr. REDACTED was asked whether a classroom of 13 students would be appropriate for the student? He testified it would depend on the “type of instruction” For phonics-based instruction, more of an individualized approach, like what REDACTED does, would be warranted” The Parent testified that she opted to keep the student at REDACTED for the 21-22 school year because they provided small classrooms, related services and had qualified professionals. The evidence and testimony support the student has made progress for the 2021-2022 school year.

Based upon the evidence submitted, testimony and affidavit testimony I find that REDACTED was an appropriate placement for the student for the 2021-2022 school year.

Prong III The DOE maintains that the Parent’s rejection of the program recommendation was unreasonable and the Parent never intended to enroll the Student in a public school as evident by the Parent signing the enrollment contract with the Unilateral Placement in April 2021, many months before the 2021-2022 school year commenced.

They assert that the Parent did not file a ten-day notice to advise the Department of the Parent’s challenges concerning the October 2021 IEP (Parent Exhibit E), an IEP developed long after the Parent had already enrolled the Student at the Unilateral Placement for the 2021-2022 school year. Since the Parent did not provide the Department with notice of her concerns with the October 2021 IEP, the Parent must be barred from challenging the October 2021 IEP in this matter.

Ultimately, they believe the relief request must be denied because the equites favor the Department.

Although the Parent enrolled the student prior to the 2021 -2022 school year commencing, the Parent was aware that she would have had the opportunity to withdraw the student from REDACTED without financial penalty if the DOE had offered an appropriate public placement that she had accepted no later than September 15, 2021. ( Exh. G )

Nothing in the record suggests that the Parent failed to cooperate with the Department or obstructed the special education process in any way. The Parent participated in the IEP meetings in October 2020 and 2021 and timely informed the DOE of her concerns about the program developed for the student. The equities support an award of tuition reimbursement.

FUNDING 2021-2022 School Year

Although I find tuition reimbursement is warranted I do not concur that the 11.96% of the non-secular portion of the students’ program should be reimbursed.

I concur with the Doe’s position that the Department is not required to fund the religious instruction offered at the Unilateral Placement. Therefore, any award for the cost of the tuition at the Unilateral Placement must not include the portion of the school day devoted to religious instruction.

“School districts are prohibited from funding religious instruction. 34 C.F.R § 76.532 (a)(1). School districts are not required to fund religious instruction pursuant to the IDEA. M.L. Smith, 867 F.3d 487, 492-99 (4th Cir. 2018); see also, Mitchell v. Helms, 530 U.S. 793, 840-41 (2000) (O’Connor, J, concurring in judgment) (“[a]lthough [o]ur cases have permitted some government funding of secular functions performed by sectarian organizations, our decisions provide no precedent for the use of public funds to finance religious activities”) (internal citation and quotation marks omitted); Bronx Household of Faith v. Bd. of Educ. of City of New York, 650 F.3d 30 (2d Cir. 2011) (school district’s decision to exclude “religious worship services” from public school did not violate the First Amendment); J.G. ex rel. N.G. v. Kiryas Joel Union Free Sch. Dist., 777 F. Supp. 2d 606, 657-58 (S.D.N.Y. 2011) “(in opting unilaterally to place N.G. at B'nai Yoel, though he was otherwise entitled to receive a free appropriate public education, R.G. and J.G. must accept that public monies will not fund it”) (internal citation omitted).” The Parent is seeking reimbursement for monies paid for the students’ tuition at REDACTED for the 2021-2022 school year in the amount of $ 68, 300 as evidenced in Exhibit G and H. After reviewing documents submitted by the Parents more particularly Exhibit K, it would appear that approximately 12% of the school week is devoted to Religious studies. 12% of $68,300 equals $8,196. The Parent should be reimbursed in the amount of $60,104.00 which represents the non-religious portion of the tuition for the 2021-2022 school year.

ORDER

For reasons indicated herein, it is ORDERED

• • that the Department of Education failed to Provide the student with a FAPE for the 2021-2022 school year.
• • The REDACTED school was an appropriate placement for the student for the 2021-2022 school year.
• • There are no equitable considerations that would bar the Parent from the requested relief.
• • Upon proof of payment, The DOE is to reimburse the parent for the cost of REDACTED tuition and placement for the 2021-2022 school year at the REDACTED School less amounts dedicated to religion, in a total amount not to exceed $60,104.00.

June 17, 2022

Tina Millman Esq.

Impartial Hearing Officer

PLEASE TAKE NOTICE

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 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 parties' petition 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

EVIDENCE ENTERED INTO THE RECORD

IHO EXHIBIT

• • 4/25/2022, DOE Closing Brief, 25pp
• • 4/25/22, Parent Closing Brief, 15pp

DOE EXHIBITS

REDACTED

PARENTS EXHIBITS

REDACTED