New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Student's Name REDACTED ^[1]

Date of Birth REDACTED

District REDACTED

Hearing Requested By Parent

Date of Hearing October 19, 2022

January 18, 2023

February 14, 2023

March 28, 2023

Hearing Officer Sharyn Finkelstein Esq.

Record Close March 31, 2023

NAMES AND TITLES OF PERSONS WHO APPEARED

OCTOBER 19, 2022

For the Student:

REDACTED Attorney

REDACTED Attorney

For the Department of Education:

REDACTED School Psychologist

Committee on Special Education

NAMES AND TITLES OF PERSONS WHO APPEARED

JANUARY 18, 2023

For the Student:

REDACTED Attorney

REDACTED Parent

For the Department of Education:

REDACTED Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRRUARY 14, 2023

For the Student:

REDACTED Attorney

REDACTED Parent

REDACTED Director of Alternative Programming

REDACTED Program

REDACTED CEO Clinical Director

REDACTED

REDACTED Assistant Director of Education

REDACTED

FOR THE DEPARTMENT OF EDUCATION

REDACTED District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

MARCH 28, 2023

For the Student:

REDACTED Attorney

For the Department of Education:

REDACTED District Representative

I was appointed, to conduct an impartial hearing pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f)(1), concerning the special education of REDACTED (hereinafter referred to as "Student") for the 2021-2022 school year.

The parties moved to extend the compliance date on several occasions, initially for settlement, for witness availability, for personal emergencies, and to allow time for Parties to prepare for hearings and submit closing briefs. In considering the requests, I weighed the cumulative impact of the relevant factors and found that the need for the extensions was greater than any delay in the resolution in this matter.

Attached is a list of persons who attended the hearing and evidence that was submitted. The record was closed on March 31, 2023.

DEPARTMENT OF EDUCATION'S CASE

The Department of Education (DOE) was initially represented by their attorney REDACTED and at later hearings, by REDACTED. It is their position that the DOE offered a FAPE to Student for the 2021-2022 school year. They maintain that DOE did not fail to meet their child find obligations. It is their position that Parents failed to meet their burden to establish the appropriateness of the three unilateral placements. They maintain that the equities favor the DOE and all requests for relief should be denied. (Tr. 56. ) They submitted evidence and presented one witness. They submitted a closing brief in support of their position.

PARENTS' CASE

Parents were initially represented by their attorney REDACTED and at later hearings by REDACTED. It is their position that DOE failed to provide a FAPE to Student for the 2021-2022 are entitled to reimbursement for their independent evaluation and for Student's attendance at REDACTED program as a remedy. It is their position that the three unilateral placements during the 2021-2022 were appropriate. They argue that the equities favor Parents. In summary, it is their position that tuition reimbursement/funding and various transportation costs should be awarded for the unilateral placements. They submitted evidence and presented evidence in support of their position.

BACKGROUND

Student was born "REDACTED" and now identifies as a transgender woman. Student is REDACTED years old.

Student is diagnosed with a generalized anxiety disorder and unspecified mood disorder. (Exhibit D)

Student had attended REDACTED (REDACTEDD) a NYC DOE public high school.

In REDACTED grade, Student started to get more and more depressed.

Student had experienced depression, low self-esteem, struggles with dysphoria.

On August 4, 2021 (after the completion of ninth grade) Student attempted suicide.

On August 6, 2021 Student was admitted to REDACTED where she remained until August 23, 2021.

On August 26, 2021 Parent emailed school advising that Student was at REDACTED and headed to REDACTED in REDACCTED. (Exhibit G) She attended for approximately three months.

Parents were advised to disenroll Student from REDACTED. At that time Student was at REDACTED. In response, Parents disenrolled Student from REDACTED. (Exhibit GG)

Parents had a psychological evaluation conducted while Student was at REDACTED. (Exhibit D) The evaluator recommended the continuation of a therapeutic setting. (Tr. 66)

Everyone agreed that Student needed a therapeutic residential school upon leaving REDACTED.

Parents consulted with an educational consultant who informed Parents that they should request an IEP meeting.

On November 6, 2011 Parents emailed DOE requesting an IEP meeting. (Exhibit 16)

They signed and completed all consents and forms that were requested. (Exhibits 12, 13, 14 and 15).

An IEP was developed and Student was classified with an Emotional Disturbance.

They recommended a NYSED NPS Residential Program. (Exhibit 7) Everyone was in agreement with the recommendation.

They recommended an interim placement of District 75. Parents did not agree with the interim placement. (Exhibit 1)

No residential placement was secured.

Parent enrolled Student at REDACTED, a therapeutic residential boarding school in REDACTED.

Parent advised DOE that Student would attend the REDACTED program in REDACTED on December 2, 2021. (Exhibits A and Q)

Student began attending REDACTED and completed her 2021-2022 school year.

FINDINGS AND CONCLUSIONS

CHILD FIND

The purpose of the "child find" provisions of the IDEA are to identify, locate, and evaluate students who are suspected of being a student with a disability and thereby may be in need of special education and related services, but for whom no determination of eligibility as a student with a disability has been made (see Handberry v. Thompson, 446 F.3d 335, 347-48 [2d Cir. 2006]; E.T. v. Bd. of Educ. of Pine Bush Cent. Sch. Dist., 2012 WL 5936537, at *11 [S.D.N.Y. Nov. 26, 2012]; A.P. v. Woodstock Bd. of Educ., 572 F. Supp. 2d 221, 225 [D. Conn. 2008], aff'd, 370 Fed. App'x 202 [2d Cir. Mar. 23, 2010]; see also 20 U.S.C. § 1412[a][3][A]; 34 CFR 300.111; 8 NYCRR 200.2[a][1], [7]). The IDEA places an affirmative duty on State and local educational agencies to identify, locate, and evaluate all children with disabilities residing in the State "to ensure that they receive needed special education services" (20 U.S.C. § 1412[a][3]; 34 CFR 300.111[a][1][i]; Forest Grove, 557 U.S. at 245; K.B. v. Katonah Lewisboro Union Free Sch. Dist., 2019 WL 5553292, at *7 [S.D.N.Y. Oct. 28, 2019]; E.T., 2012 WL 5936537, at *11; see 20 U.S.C. § 1412[a][10][A][ii]; see also 8 NYCRR 200.2[a][1], [7]; New Paltz Cent. Sch. Dist. v. St. Pierre, 307 F. Supp. 2d 394, 400 n.13 [N.D.N.Y. 2004]). The "child find" requirements apply to "children who are suspected of being a child with a disability . . . and in need of special education, even though they are advancing from grade to grade" (34 CFR 300.111[c][1]; see 8 NYCRR 200.2[a][1], [7]; D.K. v. Abington Sch. Dist., 696 F.3d 233, 249 [3d Cir. 2012]; J.S. v. Scarsdale Union Free Sch. Dist., 826 F. Supp. 2d 635, 660 [S.D.N.Y. Nov. 18, 2011]). To satisfy the requirements, a board of education must have procedures in place that will enable it to identify, locate, and evaluate such children (34 CFR 300.111[a][1]; 8 NYCRR 200.2[a][1], [7]).

Because the child find obligation is an affirmative one, the IDEA does not require parents to request that the district evaluate their child (see Reid v. District of Columbia, 401 F.3d 516, 518 [D.C. Cir. 2005] [noting that "[s]chool districts may not ignore disabled students' needs, nor may they await parental demands before providing special instruction"]; see also Application of the Bd. of Educ., Appeal No. 11-153; Application of a Student Suspected of Having a Disability, Appeal Nos. 11-092 & 11-094). A district's child find duty is triggered when there is "reason to suspect a disability and reason to suspect that special education services may be needed to address that disability" (J.S., 826 F. Supp. 2d at 660; New Paltz Cent. Sch. Dist., 307 F. Supp. 2d at 400 n.13, quoting Dep't of Educ., State of Hawaii v. Cari Rae S., 158 F. Supp. 2d 1190, 1194 [D. Haw. 2001]). To support a finding that a child find violation has occurred, school officials must have "overlooked clear signs of disability" and been "negligent in failing to order testing," or have "no rational justification for deciding not to evaluate" the student (Mr. P v. W. Hartford Bd. of Educ., 885 F.3d 735, 750 [2d Cir. 2018], quoting Bd. of Educ. of Fayette County, Ky. v. L.M., 478 F.3d 307, 313 [6th Cir. 2007]; see A.P., 572 F. Supp. 2d at 225,). States are encouraged to develop "effective teaching strategies and positive behavioral interventions to prevent over-identification and to assist students without an automatic default to special education" (Los Angeles Unified Sch. Dist. v. D.L., 548 F. Supp. 2d 815, 819 [C.D. Cal. 2008], citing 20 U.S.C. § 1400[c][5]). Additionally, a school district must initiate a referral and promptly request parental consent to evaluate a student to determine if the student needs special education services and programs if a student has not made adequate progress after an appropriate period of time when provided instruction in a school district's response to intervention program (8 NYCRR 200.4[a]), see also 8 NYCRR 100.2[ii]).

The DOE was on notice as of August 26, 2021 that Student who was at one of its public schools had attempted suicide. They were aware that student spent two weeks in a psychiatric hospital and was recommended for continued intensive therapeutic programming. (Exhibit G)

In early September DOE staff had a call with Student's Parent to discuss Student's situation. Parent described DOE's response as well-meaning but not informative. (Tr. 140)

DOE never conducted any evaluations. (Tr. 140)

DOE never brought up the possibility of getting Student an IEP. DOE never made a referral. (Tr. 141)

Parents were unaware of such an option and were unfamiliar with the process. (Tr. 141)

On September 23, 2021, DOE's response to Parents' concerns consisted of a suggestion that they disenroll Student in order to avoid excess absences. (Tr. Exhibit GG)

Parents requested an urgent IEP meeting and an IEP meeting was convened on November 17, 2021. (Exhibit 7)

DOE points out in closing that they acted very quickly once Parents put in the referral. I find that this does not excuse DOE's affirmative obligation to evaluate Student when they learned of her situation.

DOE had more than one contact with Parents about Student's state of mind and did not arrange to have her evaluated. Parents are not responsible to make the referral. I find that DOE violated their child find obligation.

As a direct result of DOE failing to evaluate Student, Parents had Student independently evaluated. I find that it was certainly appropriate for Student to be evaluated. Parents shared the evaluation with the DOE. The DOE acknowledged the evaluation was used at the IEP meeting. I find DOE should fund the evaluation that should have been arranged by them in the first instance.

In Parents' closing, they request that as remedy for violation of child find, DOE should be fund the cost of REDACTEDD. I find that this is not an automatic appropriate remedy for Child Find. As discussed below, I agree with DOE that any request must be analyzed under Burlington/Carter analysis. Parents have the burden to establish the appropriateness of the unilateral placement.

It is well-established that a district may be required to pay for private educational services for a student with a disability, if the services offered by the DOE are inadequate or inappropriate, the nonpublic school is appropriate to meet the student's unique educational needs, and there is no equitable bar to recovery. Sch. Comm. of the Town of Burlington v. Dep't of Educ., 471 U.S. 359 (1985); Florence County Sch. Dist. Four v. Carter, 114 S. Ct. 361 (1993); 20 U.S.C. § 1415(e)(2).

The purpose of the IDEA is to ensure that students with disabilities have a free, appropriate public education that emphasizes services designed to meet their unique needs, and prepare them for further education, employment and independent living. 20 USC 1400(d)(l)(A)-(B).

A FAPE is offered to a student when (a) the Department complied with the procedural requirements set forth in the IDEA, and (f) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. (Bd. Of Educ. v. Rowley, 458 U.S. 176, 206, 207 [1982]).

An appropriate educational program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services. (Application of a Child with a Disability, Appeal No. 04-046; The IDEA requires that the CSE include not less than one regular education teacher of such child (if the child is, or may be, participating in the regular education environment) and not less than one special education teacher, or where appropriate not less than one special education provider of such child (20 U.S.C.§ 1414[d][1][B).

Not all procedural errors render an IEP legally inadequate and result in the denial of a FAPE. The procedural error must either 1) impeded the student's right to a free and appropriate public education, 2) significantly impeded the parents' 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., 2007 WL 210093, at *2 [S.D.N.Y. Jan. 9, 2007]). Application of a Child with a Disability, Appeal No. 07-007.

The appropriate education mandated by the IDEA does not require states to "maximize the potential of handicapped children". Walczak v. Florida Union Free School District, 142 F. 3d 119 (2d Cir. 1998) (citing Rowley), An appropriate public education under IDEA is one that is "likely to produce progress, not regression" Id. (citing Cypress-Fairbanks Indep. Sch. Dist. v. Michael F. 118 F. 3d 245 248 (3d 245, 248, (3d Cir. 1997).

The burden of proof is on the school district during an impartial hearing, except that parents seeking tuition reimbursement for unilateral placement have the burden of proof regarding the appropriateness of such placement. Educ. Law 44049l09c); M.P.G. v. New York City Department of Education (SDNY 2010).

The Parent must establish that the proposed parental placement is appropriate under the IDEA, i.e., that the private school is offering an instructional program that meets the child's special education needs. The fact that the facility selected by the Parent to provide special educational services to the child is not State approved as a school for children with disabilities is not dispositive of the Parent's claim for tuition reimbursement. (Florence County School District Four v. Carter by Carter. 114 S.Ct. 361[1993]). The parent must prove that the student will receive an appropriate educational benefit from the program. The Second Circuit framed the legal standard for the second prong in Frank G. v. Board of Education 459 F. 3d 356 (2d Cir.

2006) and Gagliardo v. Arlington Central School District. 489 F.3d 105 (2d. Cir. 2007). Under Frank G the Court held that "to qualify for reimbursement under the IDEA, Parents need not show that a private placement furnishes every special service necessary to maximize the student's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handclapped child, supported by such services and are necessary to permit the child to benefit from instruction" (Id.).

The parents must show that the educational program met the student's special educational needs Burlington supra at 471 M.S. v. Board of Education, 231 F.3d 96, 104-105 (2nd Cir 2000). The private school need not employ certified special education teachers, nor have its own IEP for the student. Application of the New York City Department of Education, Appeal No. 06-037; Application of a Child with a Disability, Appeal No. 02-111.

Plaintiff's burden is to show that the program was properly designed for the student to progress and is not required to show that the student in fact progressed significantly. G.R. v. New York City Department of Education, 07 CIV 4711 (TPG) (SD NY Decided August 7, 2009).

The SRO has determined as a matter of law that a parent's unilateral placement of a child in a school that does not provide the necessary related services a student needs renders the placement inappropriate under Prong II of Burlington. See, Application of a Child with a Disability, Appeal No. 11-057 (SRO denied tuition because the private school did not provide adequate related services to meet the child's needs)

Courts consider the "totality of the circumstances" and parents "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." Frank G., 459 F.3d at 364-65;

The IDEA requires that educational instruction must be provided to the child in the least restrictive environment, with the child participating to the maximum extent possible in the same classrooms and activities as non-disabled children. See 20 U.S.C. § 1412(a)(5)(A); Rowley, 458 U.S. at 203-204. While parents are not held as strictly to the least restrictive environment standard as school districts, "the restrictiveness of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement." Application of a Student with a Disability, Appeal No. 08-130 (denying reimbursement where unilateral placement "did not provide the student with special education services in the least restrictive environment")

The third and final criterion for an award of reimbursement is that the claim be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA, Burlington supra at 471 U.S. At 374.

New York courts consider whether the parent has "failed to cooperate with a school district or otherwise frustrated a district's attempt to offer a FAPE" and whether the parent attended IEP meetings and school visits, and communicated with the DOE. D.A v. N.Y.C. Dep't of Educ, 769 F. Supp 2d 403, 419020 (S.D.N.Y. 2011). under the IDEA, Burlington supra at 471 U.S. At 374.

With respect to prong one, School psychologist who currently works at the Committee on Special Education(CSE) provided testimony.

Witness conducted an initial IEP meeting for on November 17, 2021, for Student to determine her eligibility for special education services. (Exhibit 7)

Team had a social history that was conducted a few days prior to the meeting. Parent provided a neuropsychological report and a vocational assessment. (Tr. 68)

They provided management needs and created goals centered around Student's socialemotional functioning. (Tr. 76)

Team recommended a New York State-approved residential program with a 12:1:1 class size ratio, to be deferred to the Central Based Support Team to seek a residential program.

They recommended a small structured setting because of Student's prior difficulties in large class setting. (Tr. 65) They recommended a 12 -month program with four sessions a week of counseling. (Tr.67)

They considered other programs including a community public school, general education, with counseling but they felt Student needed a lot of therapeutic support on a twenty-four -hour basis.

Student had been in a REDACTED program and parents were concerned about her having to return home. (Tr. 79)

At the time Student was receiving a significant amount of therapeutic support, for her mental health needs. She was shortly going to be exiting a wilderness program. (Tr. 81)

Team recommended an interim District 75 placement pending the availability of a residential placement. (Tr. 65)

A residential placement was never secured.

A school location letter was generated by placement officer for an interim District 75. Student would have been living at home and attending a 12:1:1 setting.

In this case, the issue centers around placement. Everyone including the Parents agreed with the recommendation of a residential placement. (Tr. 87) Student was suicidal which was another factor considered in Student's requirement for 24- hour support. (Tr. 87) No one at the meeting thought Student was ready to return home. (Tr. 92) The problem is that there was no offer of a residential placement. Everyone agreed that Student should not be at home and required 24 hour -support. DOE did not put on a school placement witness for D75. Even had they had a place for Student, I find it would be totally inappropriate.

I find DOE failed to meet their burden under prong one. I find DOE failed to offer Student a FAPE for the 2021-2022 school year.

With respect to prong, two Student attended three different placements during the 2022-2023 school year.

REDACTED

The director of REDACTED programming and therapist testified. (Tr. 198-233) They are a licensed residential treatment center located in the wilderness in REDACTED. She described them as an intensive intervention for students around learning life skills, taking care of basic needs and with a lot of interpersonal skills.

Students are in a maximum group of seven with two staff members. Students receive group therapy twice a week. They receive additional support on a 24/7 basis.

Students receive individual and group therapy. Witness was Student's therapist during the duration of her stay. Student was in the all-gender adolescent group with an age range from REDACTED to REDACTEDD. There were six to seven students in her group. (Tr.203-204)

Student came into the program with rigid thinking and had just been stabilized at the hospital. They worked on emotional communication and Student's understanding of her desire for self-harm. (Tr 204) Emotional regulation was the prominent aspect for Student. She was provided with gender-affirming care. (Tr. 208)

Students live in the forest, backpacking between locations for ten days at a time and then four days stay at one site. The cycle is repeated every two weeks. (Tr. 209-210)

Students work on getting ready for properly leaving the site and on setting up the next camp. (Tr. 210-211)

Field staff have a Bachelor's degree and have a week of training prior to going out in the field. (Tr. 212)

Student received four academic credits for the completion of the program. They work with a third -party accrediting body to provide credits to students. Parents submitted the transcript. Student was completely engaged and fully participated. (Exhibit K)

In discussing progress, Witness included stabilization around safety, decrease around self-care, and awareness of self. Student increased her ability to relate to Parents in a healthy manner. (Tr. 220)

Parent chose REDACTED because of their clinical training and experience in working with transgender youth and in the unique ways they created a safe and therapeutic program. (Tr 199-203)

Parents in closing state that Witness testified to the ways in which academics were addressed. (Tr. 225-230)

On cross-examination Witness testified that there are multiple hours for homework or assignments. Physical education is based on the physical elements of work during the day.

Witness acknowledged that program focused more on the therapeutic than on academics. (Tr. 224)

There is no designated course or credits for math. (Tr. 236) Math is supervised by their field staff. They are not licensed teachers and have no degrees in mathematics. (Tr. 256-227)

There is a course of psychology of daily living. Witness described the course work as consisting of participation and engagement from students in therapy, in order to obtain credit.

Work is not graded but based upon participation in group therapy. (Tr. 229)

Environmental science consists of an in - person quiz with Witness or field staff to identify plants and trees. (Tr. 230)

When asked about actual coursework or grading of coursework in psychology, Witness again discussed participation and engagement. (Tr. 128)

I credit testimony and evidence that Student made progress in her emotional well being. I would never minimize such progress especially when Student arrived after being discharged from a hospital after attempting suicide. I recognize and appreciate Parents' difficulty in locating a proper setting for Student. I understand that the education aspect may not have been their paramount concern. However, DOE is not responsible to fund a program that does not offer an educational component that is likely to confer a benefit to Student.

I find that the evidence establishes a lack of a sufficient educational component. I find that there are no structured courses taught by teachers. I find that credits are based on participation and not on the academic component. I find the lack of math course or credit is indicative of insufficient academics. Student was in high school. I find that her ability to recognize plants and trees is not adequate progress in science. When asked about actual coursework or grading of coursework in psychology, Witness again stressed participation and engagement. (Tr. 128) When Witness described Student's progress, there was no mention of academics. I agree that progress is not necessary, but I find that academics were not considered an important piece of the program.

I find that there was no adequate educational component and that REDACTED was not appropriate. I find Parents failed to meet their burden under prong two.

REDACTED

REDACTED is the clinical director and co-owner of REDACTED. He described it as a shortterm therapeutic boarding school. Students are in school five days a week coupled with individual, group family therapy, parent work and home visits. (Tr. 238)

Student attended from December 2021 to the middle of April 2022.

Student had arrived from REDACTED, a REDACTED program. They had recommended a therapeutic residential program and small school to meet Student's needs. (Exhibit N, T)

They specifically address students' ability to transition to home. It is specifically built into the program to bring kids out of the wilderness into a type of structured educational environment with the ultimate goal of going home (Tr 171) They try and have students move to a less restrictive environment.

They have weekly family therapy; family visits and they have a full-time parent coach.

Student's groups were all-gender with a 2:1 or 3:1 student to staff ratio.

Student had a primary therapist.

Student lived in a cabin with up to seven others.

Student shared similarity with other students who came in struggling with depression.

The bulk of the day is spent in academic building attending school. (Tr. 245)

Students come in for different periods of time and different lengths of time

They have an on-line curriculum provider called Imagine Learning. They provide an accredited curriculum with a remote teacher (Tr 254)

Students are in a traditional classroom engaged with the curriculum on a computer. There are live teachers in the classroom. Students are on different years in math. They are in class with a math teacher and have an individualized treatment plan. Student received credits for foreign language, language arts, math, science and history classes. (Exhibit S) Student had an individualized program. (Tr. 257)

There is a residential component.

There are multiple treatment team meetings to address Student's progress. They discuss her on a weekly basis in terms of her progress towards their treatment goals and towards their weekly goals.

They track academic progress. Every student has individualized academic goals which are reviewed at the end of the week.

Witness opined that Student had made progress and was ready to go home. Student made social/emotional progress. (Exhibits R, U, V)

Student was ready to return home approximately after 4.5 months of attendance.

DOE argues that REDACTED is not responsible for academic instruction. Evidence establishes that they provided online instruction by means of an on-line accredited provider. Students in public schools have received online instruction. DOE argues that they did not address specific supports that were provided to Student with respect to her academics. It is undisputed that Student's main issues did not have to do with academics but with her emotional issues. Evidence establishes that Student did make academic progress and received credits. I find that that the instruction coupled with the aid of a teacher in the classroom is sufficient. I find evidence establishes that Student gained an educational benefit.

I find evidence establishes that Student made progress in her ability to move back home to a less restrictive environment.

I find that REDACTED was appropriate. I find Parents met their burden under prong two.

REDACTED

Assistant Director of education at REDACTED provided testimony. They are a high support therapeutic educational program. They provide smaller, individualized classroom academic settings that incorporate therapeutic and clinical supports. (Tr 287

Students fall in the average to above average IQ range but may struggle with different kinds of social anxiety and depression. (Tr. 287)

All teachers have a bachelor's or master's degree in education or specifically in the area that they are teaching. There is professional development throughout the year. They have a full-time clinical staff.

Student is a quick learner with really strong reasoning abilities. (Tr. 290) Her struggles were related to her mental health diagnosis. He explained that she required work more in the social skills and mental health realm than in the academic realm. (Tr 291)

Student had rigid thinking and both the academic and clinical team worked on this area. (Tr. 291) He explained that her difficulty understanding other points of view led to a lot of social conflict with her peers. Both the academic and clinical team work with her on how to navigate those peer conflicts. It impacts her performance in the class. (Tr. 291)

Student had a scheduled once a week individual therapy session. She had a separate group which focused on social skills in a group setting with students with similar profile.

They had a CIA skill, which focused on the executive functioning piece and the strengthening of organizational skills. (Tr 292)

Students are grouped based on their credit needs in high school. They had copies of Student's transcripts.

Academically they access progress from formal and informal assessments, Student's teachers reported to Witness, that she made academic progress. Student is able to work independently. Student earned all really high grades .

Student's therapist that she made progress in her flexibility.

Witness opined that at the time of Student's enrollment, she was not ready to be in a mainstream school. Witness opined that they provided a small class size with less social pressure and they worked on social and emotional skills that Student needed to be successful in a more mainstream setting. (Tr. 296)

Parent opined that placement met her treatment needs.

DOE points out that Parent acknowledged that Student was still bored and that the program was not academically that rigorous. (Tr. 179) Parent also testified that Student finished grade eleven, she met all of the benchmarks and passed all the classes.

I find evidence establishes that REDACTED provided Student with the small class size, therapeutic and clinical support that she required to make progress. Witness testified that Student made academic progress and progress in her flexibility in her thinking. He testified that when she first arrived she was absolutely not ready to be in a more mainstream high school. They worked on providing Student with social and emotional skills that she needed to be in a more mainstream setting. Evidence establishes that Student made academic progress.

I find REDACTED provided supports that enabled Student to return home after a shortstay. I find REDACTED was appropriate. Parents met their burden under prong two.

With respect to prong three, DOE argues that Parents should have been aware of the IEP process and should have requested an IEP at an earlier date. The parent testified that they had been unaware of the IEP process. I find no reason to doubt their credibility. Additionally, it is the DOE who failed to make a referral in the first instance. Even after the IEP meeting was held, DOE was unable to find a residential setting. Not only did DOE not secure an appropriate placement but they never even contacted Parents after the meeting.

DOE points out that Parents did not inform the DOE of Student's return to New York. I agree that Parents should have provided notice of the unilateral placement in New York but I do not find that this in and of itself would prevent Parent from obtaining relief.

Parents initially turned to DOE. They shared the independent evaluation. They provided a ten -day notice about their intention to place Student at REDACTED.

I find that on balance, the equities favor Parents.

In summary, I find DOE violated child find, I find Parents are entitled to the costs of the Psychological Evaluation conducted by REDACTED.

I find DOE failed to provide Student with a FAPE for the 2021-2022 school year.

I find REDACTED was not appropriate and any request for funding is denied.

I find REDACTED was appropriate and Parents are entitled to funding and costs of transportation.

I find REDACTED was appropriate and Parents are entitled to funding.

ORDER

The DOE shall reimburse Parents for and or directly fund any remaining balance for the costs of the Psychological Evaluation conducted by REDACTED upon evidence of payment and evaluation.

The DOE shall reimburse Parents and directly fund any remaining balance for Student's attendance at REDACTED during the 2021-2022 school year, upon evidence of contract, payment and Student's attendance.

The DOE shall reimburse Parents for transportation associated with Student's attendance at REDACTED, including costs associated with visits, upon evidence of costs and payment.

The DOE shall reimburse Parents and directly fund any remaining balance for Student's attendance at REDACTED during the 2022-2023 school year upon evidence of contract, payment and Student's attendance, Sharyn Finkelstein April 2, 2023

PLEASE TAKE NOTICE

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.

EVIDENCE ENTERED INTO THE RECORD

PARENT

A. Notice of unilateral placement 11/11/21 (3 pages)

B Request for impartial hearing 1/4/22

C. Amended impartial hearing request 5/4/22 (9 pages)

D. Psychological evaluation report 10/13/21 (20 pages)

E Psychological evaluation

Invoice for service 9/16/2021 1

F REDACTED discharge instructions

And plan 8/27/20 1

G. Parent email with REDACTED 8/26/21 to 8/27/21 (2 pages)

H REDACTED description N/A 2

I. REDACTED enrollment contract 8/19/21 (1 page)

J REDACTED tuition statement 9/14/22 1

K REDACTED

official transcript 12/1/21 1

L REDACTED program credit description N/A 1

M REDACTED accreditation for REDACTED

REDACTED and REDACTED Program N/A 1

N. REDACTED Program final report 12/15/2021 (10 pages)

O. Parent email to DOE with signed consent for services 12/6/21 (5 pages)

P REDACTE Program description N/A 1

Q. REDACTED for REDACTEDD\ treatment plan 12/21/21 (3 pages)

R. REDACTED progress report 3/29/22 (4 pages)

S REDACTED independent transcript 5/15/22

3

T. REDACTED Achievement sample schedule N/A (1 page)

U. REDACTED Educational Summary 5/3/2022 (3 pages)

V. REDACTED: Discharge Summary 7/26/2022 (5 pages)

W. REDACTED Tuition Agreement 11/14/2021 (1 page)

X. REDACTED tuition affidavit 9/28/2022 (1 page)

Y. REDACTED Enrollment Contract 4/11/2022 (3 pages)

Z REDACTED Tuition Statement 4/21/2022 1 AA REDACTED Educational Program Description undated 4 BB REDACTED Daily Schedule for Blaire undated 1 CC REDACTED Official High School Transcript 2021-2022

9/12/2022 1 DD REDACTED Attendance Report 2021-2022 undated 1 EE REDACTED End of Year Report 2022 6/21/2022 4 FF REDACTED Individual Therapy Summary 10/6/2022 1 GG Parent Email with REDACTED 9/3/2021

DEPARTMENT OF EDUCATION

1. Parent consent for provisional services 12/6/2021 (1 page; DOE)

2. Email exchange between the DOE and the Parent 11/8/2021 (5 pages; DOE)

3. First attachment to 11/08/21 email. REDACTED admission 9/27/2021 (1 page; DOE)

4 Second attachment to 11/08/21 email. REDACTED

Discharge 8/6/2021 6 5 Third attachment to 11/08/21

REDACTED Transcript 7/2/2020 1

6. Prior Written Notice (PWN) and School Location Letter (SLL) 11/30/ 2021 (14 pages; DOE)

7. Individualized Education Plan (IEP) 11/17/2021 (2 pages; DOE)

8. IEP attendance Page 1/11/2021 (1 page; DOE)

9. Psychiatric Summary Report by REDACTEDD 10/8/2021 (5 pages; DOE)

10. IEP Attendance Form 1/11/2021 (1 page; DOE)

11 DOE consent for Assessments 11/10/2021 1

12 HIPPA Release 11/15/2021 1

13 DOE Home Language Survey 11/16/2021 1

14. DOE Request for Records Release 11/10/2021 (1 page; DOE)

15 DOE Consent for Use of Mail 11/10/2021 1

16. DOE Consent for Evaluation 11/10/2021 (1 page; DOE)

17. DOE Vocational Interview 11/10/2021 (2 pages; DOE)

18. Psychological Evaluation by REDACTED 10/13/2021 (20 pages; DOE)

19. Letter from psychiatrist REDACTED 7/10/2021 (1 page; DOE)

20. Email from parent 7/14/2022 (4 pages; DOE)

21. Parent's email to DOE asking for an initial assessment 11/06/2021 (3 pages; DOE)

22. Social History Package 11/15/2021 (20 pages; DOE)

Footnotes

[1] Student was also referred to in prior proceedings as REDACTED or REDACTEDD school year. It is their position that there was a child find violation. They maintain that Parents Student attended REDACTED until May 19, 2022 and then transitioned back home.