New York City Department of Education, Impartial Hearing Decision

REDACTED

FINDINGS OF FACT & DECISION

Case No.: 223868

Student’s Name: [Redacted]

(referred to as “Student”)

Date of Birth: [Redacted]

District: [Redacted]

Hearing Request by: [Redacted]

(referred to as “Parent”)

School: [Redacted]

(referred to as “Private School”)

Date of Complaint: January 19, 2022

Hearing Dates: September 15, 2022

Actual Record Close Date: October 3, 2022

Decision Date: October 17, 2022

Hearing Officer: Vanessa M. Gronbach, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 15, 2022

For the Student:

[Redacted], Esq., Attorney for Parent

[Redacted], Parent

For the Department of Education:

[Redacted], Esq., District Representative

ISSUES

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) through the Parents’ Due Process Complaint (“DPC”) filed on or about January 19, 2022, regarding the 2021/22 school year (P-Ex. A)^[1]. The DPC alleged that the District denied the Student a Free Appropriate Public Education (“FAPE”) as required by the Individuals with Disabilities Education Act (“IDEA”) by not providing an appropriate program and placement for the 2021/22 school year (P-Ex. A). The Parent has requested tuition reimbursement / direct payment for their unilateral placement of the Student at the Private School (P-Ex. A).

PROCEDURAL HISTORY

The undersigned was appointed as hearing officer in this matter on May 5, 2022. A prehearing conference was held on May 12, 2022 to discuss the issues in the case. After several status conferences and a lack of an update on the investigation from the District, a hearing was scheduled for September 15, 2022 and was completed on that day (See, Transcripts).^[2] The District did not present a case (T. 26). The Parent presented exhibits^[3] and two witnesses by affidavit. The record closed on October 3, 2022. There were approximately three extensions of the compliance timelines granted by this Hearing Officer, to allow for the District to investigate the matter and then to accommodate witnesses.

FINDINGS OF FACT

The Student was an [Redacted] year old, [Redacted] grade student who attended the Private School during the 2021/22 school year (P-Ex. A; L-3). The Student is classified as a student with a Speech or Language Impairment (P-Ex. A-1). The Parent testified by affidavit regarding the student (P-Ex. M). The Student was described as a bright, hard-working, and sweet boy who struggled with language-based learning, attention, broader executive functioning, academically, socially, with organization and attention (P-Ex. A-1; M-1). The Student is diagnosed with Attention-Deficit/Hyperactivity-Disorder (“ADHD”) - Predominantly Inattentive Presentation; Specific Learning Disorder, with impairments in reading and written expression; Other Specified Neurodevelopmental/ Learning Disorder /Language comprehension weaknesses; and generalized anxiety disorder (P-Ex. J-9; M-1). The Student can often be self-critical and anxious particularly when he is challenged, which can cause him to shut down (P-Ex. M-1).

The Parent attended an IEP meeting for the Student on April 7, 2021, to discuss appropriate programs for the 2021/22 school year (P-Ex. M-1). At the meeting, the IEP team discussed the Student’s performance in his ICT class at the public school (P-Ex. M-2). It was discussed that the Student struggled with his attention, remaining on task, reading comprehension, and word problems (P-Ex. M-2). At the time of the meeting, he was in the middle of the 5th grade and still on a 4th grade reading and math level (P-Ex. M-2). It was also discussed that the Student’s anxiety levels were at an all-time high and was experiencing stress in relation to school, academic learning, and standardized tests (P-Ex. M-3). The Student wanted to perform well and please those around him, and when he encountered challenging moments or felt under pressure, he could become overwhelmed and more nervous than expected (P-Ex. M-3). His teacher confirmed that in the classroom he was often easily stressed and nervous, appeared tense, reported that tests made him nervous, and he was afraid of making mistakes (P-Ex. M-3).

At the meeting, the CSE recommended an ICT program and related services (P-Ex. M-2). The Parent expressed concern with the recommendation since he was currently in an ICT class and not making progress (P-Ex. M-2). The Parent believed that the Student required a small class. in a small school with intensive special education support and mainstreaming opportunities (P-Ex. M-2).

After the meeting, the Parent received the placement of a public middle school through the middle school choice program (P-Ex. M-3). The Parent contacted the parent coordinator at the recommended school in May 2021, when she received the placement letter, to inquire about the ICT class for 6th grade, but as of the date of the hearing, the coordinator had not returned her email or contacted her (P-Ex. M-3). The Parent however, was familiar with an ICT class because the Student had been in that class program for the past two years (P-Ex. M-4). The Parent wrote to the CSE on August 22, 2021, alerting them that she had concerns with the recommended program and placement for the 2021/22 school year, informing them that she had reached out to the recommended school for information but had not been contacted yet, and requested information about the ICT class, (P-Ex. B; M-4). The Parent also notified the District about her intent to place the Student at the Private School and seek reimbursement (P-Ex. B). However, the Parent did not receive a response to that letter (P-Ex. M-4).

The Parent signed a contract with the Private School in February 2021, in order to make sure the Student had an appropriate placement for the 2021/22 school year (P-Ex. E; M-4). The contract had an “out clause” that permitted the Parent to notify the Private School if she decided to send the Student to the public-school recommendation by September 1, 2021 (P-Ex. E-3; M-4-5). The Parent paid the tuition in full (P-Ex. D; H; M-5).

The Student began attending the Private School in person during the 2021/22 school year (P-Ex. M-5). According to the Parent, the Student made a lot of progress at the Private School including decoding multisyllabic words, writing in proper context, use of punctuation, ability to self-edit and has learned multiplication and division with fractions and decimals (P-Ex. M-5). The Student also made improvements in his anxiety and learned coping mechanisms allowing him to be more aware of how to approach peers or staff and ask for help when he could not deal with a problem himself (P-Ex. M-5).

CONCLUSIONS OF LAW

The Individuals with Disability Education Act (“IDEA”) is comprehensive statutory framework established by Congress to ensure that students with disabilities are afforded FAPE. See, 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 US 49 (2005). A “free appropriate public education consists of educational instruction that is designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child to benefit from the instruction.” Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 188 (1982). In order to demonstrate that FAPE is being provided, the school district must show “that it complied with the procedural requirements set forth in the IDEA, and that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits.” See, Application of Child with a Disability, Appeal No. 05-061, quoting, Rowley at 206. The student's recommended program must also be provided in the least restrictive environment with non-disabled peers. See, Walczak v. Florida Union Free Sch. Dt., 142 F.3rd 119 (2nd Cir. 1998).

Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally, Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Rowley, at 206-07).

An appropriate program begins with an IEP which accurately reflects the results of the 1) student’s present levels of performance; 2) provides for the use of appropriate special education services to address the child's special education needs; 3) establishes annual goals which are related to the child's educational deficits; 4) identifies transitions services; 5) provides a start and end date to the recommended program and services; and 6) criteria and evaluation procedures for the measurement of goals. See, Walzczak, supra; Id., Appeal No. 00-005. “The initial procedural inquiry is no mere formality.” Walczak, at 129. “Adequate compliance with the procedures prescribed [by IDEA] would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP.” Rowley at 206. For an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression. This progress must be meaningful; i.e., more than mere trivial advancement. Walczak, supra.

In Endrew F. v. Douglas County School District, 580 U.S. __, 14 (2017), the Court held that, “[t]o meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances, as a focus on the particular child is at the core of the IDEA. The instruction offered must be “specially designed” to meet a child’s “unique needs” through an “individualized education program.” §§1401(29), (14) (emphasis added), to reflect the fact that a contemplated IEP must be focused on the “particular child that is at the core of the IDEA”. In such case, the school is still required to ensure the student is given an IEP that requires not just academic but also functional progress and, although the goals may differ for students, each child must have an IEP that includes goals and services to enable a child to make both academic and functional progress. The court further stated that an IEP “is not a form document. It is constructed only after careful consideration of the child’s present levels of achievement, disability, and potential for growth” §§1414(d)(1)(A)(i)(I)–(IV), (d)(3)(A)(i)–(iv), and that “a student offered an educational program providing “merely more than de minimis progress” from year to year can hardly be said to have been offered an education at all.” The Court in Endrew further stated that, “[t]he IDEA demands more. It requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Although the Supreme Court declined to elaborate on the definition of “appropriate progress” from case to case, it stated that, “the adequacy of a given IEP turns on the unique circumstances of the child for whom it was created.” Finally, The Supreme Court in Endrew declined to hold, as it declined to hold in Rowley, that “every handicapped child who is advancing from grade to grade... is automatically receiving a [FAPE].” Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty v. Rowley, 458 U. S. 176, 203, n. 25 (1982). A Student’s “IEP need not aim for grade-level advancement. But his educational program must be appropriately ambitious in light of his circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives.” Endrew F. v. Douglas 580 U.S. ___ (2017). “It cannot be the case that the Act typically aims for grade-level advancement for children with disabilities who can be educated in the regular classroom, but is satisfied with barely more than de minimis progress for those who cannot.” Id.

Here, the District failed to present a case and therefore failed to meet its burden in demonstrating that FAPE was provided to the Student for the 2021/22 school year. The District failed to provide any evidence regarding how the recommendations in the IEP would support the Student’s needs; how it would implement the recommendations in the IEP; or confirm whether the recommended public school placement could accommodate the Student’s recommended classroom program. Therefore, I find that the District did not provide the Student with FAPE for the 2021/22 school year.

PARENT’S BURDEN

Parents seeking reimbursement “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate” Gagliardo, at 112; see also, M.S. v. Bd. Of Educ., 231 F.3d 96, 104 [2d Cir. 2000]). “Subject to certain limited exceptions, ‘the same considerations and criteria that apply in determining whether the school district's placement is appropriate should be considered in determining the appropriateness of the parents’ placement…’” Gagliardo, at 112, quoting, Frank G. v. Bd. of Educ., 459 F.3d 356, 364 (2d Cir. 2006). 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, ultimately, 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). A private placement is only appropriate if it provides education instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; 34 CFR 300.39[a][1]; Educ. Law § 4401[1]; 8 NYCRR 200.1[ww]; Rowley, 458 U.S. at 188-89).

The Supreme Court of the United States has held that the appropriateness of a unilateral placement turns on whether it is reasonably calculated to enable the child to receive educational benefits, which is not limited to a single dispositive factor. Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982). The Second Circuit cited several factors that may be considered evidence that a child is receiving an educational benefit, including grades, test scores, and regular advancement, yet clarified that courts assessing the appropriateness of a parent’s unilateral placement must “consider the totality of the circumstances in determining whether that placement reasonably serves a child’s individual needs.” Frank G. 459 F.3d at 364; accord Knable ex rel. Knable v. Bexley City Sch. Dist., 238 F.3d 755 (6th Cir.2001) (holding that a unilateral private placement with small classes, where the student made educational progress and grades and behavior improved, was appropriate). Under the IDEA, to meet the requirements for reimbursement, parents do not need to show that a private placement provides every single service required to “maximize their child’s potential.” Frank G. 459 F.3d at 364; See M.S. ex rel. S.S. v. Bd. of Educ., 231 F.3d 96, 102 (2d Cir.2000) (“The test for parents’ private placement is not perfection.”). Parents must 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; Rowley, 458 U.S. at 188–89. “Specially-designed instruction means adapting, as appropriate to the needs of an eligible student under this Part, the content, methodology, or delivery of instruction to address the unique needs that results from the student’s disability.” 8 NYCRR § 200.1(vv). Where “the hearing record shows that [the Private School] did not provide OT or PT...” and the school “provided programs that assisted the student in developing both fine and gross motor skills,” “the lack of these services” is “not sufficient to support a finding that [the Private School] is not appropriate given that these services did not appear to be necessary to the student receiving educational benefits and [Private School] did address the needs to some extent. The student’s primary needs related to his attention and academics, and [Private School]...adequately, if not perfectly, addressed them.” Application of the Board of Education of the Arlington Central School District, Appeal No. 16- 023 at 24-25.

A private school placement must be “proper under the Act” (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school must provide an educational program which meets the student’s special education needs. See, Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129. A parent’s failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (id. at 14). The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.

“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, quoting, Frank G., 459 F.3d at 364-65).

Finding that the District did not provide FAPE to the student during the 2021/22 school year, the burden now shifts to the Parent to prove the appropriateness of the Private School.

After reviewing the testimony and evidence provided, I find that they have met that burden. The Parent’s burden is to demonstrate that the Private School provided educational instruction specially designed to meet the unique needs of the Student, which is supported by such services as are necessary to permit the child to benefit from instruction.

The Director of the Academic Support Program at the Private School testified regarding the Private School and the Student (P-Ex. L). The Private School was described as an independent school for students in 6th through 12th grade (P-Ex. I). The Private School’s academic support program was described as a program that assists students with different styles of learning or specific learning disabilities to function successfully in an academically challenging mainstream setting (P-Ex. I). It allows the teacher to meet with students 12 times a week (P-Ex. L-1). The program has three components: The first one is that every morning students report to school at 8:00 a.m. for a small group session for 35 minutes (P-Ex. L-1). This is a time for students to get organized for the day and for the teacher to assist them with any concerns they had regarding the previous night’s homework (P-Ex. L-1). It can also be a time for students to continue to review for tests or quizzes that they have that day (P-Ex. L-1). Content area teachers are also available to meet with students at that time (P-Ex. L-1). The second component is the final period of the day which occurs after the regular school day, from 3:15pm to 4pm (P-Ex. L-1). Students have a very structured quiet study time in which they are focused on organizing assignments, the teacher makes sure that their planner is filled out accurately, verify assignments, and then they begin homework and studying in a quiet structured environment, where the teacher provides 1:1 assistance (P-Ex. L-1). Content area teachers are also available to meet with students at that time (P-Ex. L-2). The third component is the individual session, which occurs twice a week for 40 minutes where the teacher works on supporting students with their specific needs and providing extra support for their classes (P-Ex. L-2). Individual sessions are tailored specifically to the student’s needs including organization, re-teaching, clarifying what is taught in the classroom, if necessary, breakdown assignments and planning difficult projects or long-term assignments (P-Ex. L-2).

The teacher typically works with approximately 11 students or less and meets with each student twice a week, individually, for one period during a double period of a non-academic subject (P-Ex. L-2). During those sessions, the teacher provided skills-based instruction to address the student’s learning deficits (P-Ex. L-2). In addition, the teacher meets with the students twice daily in a group to work on executive functioning issues related to homework and test taking, but also addresses skills-based problems when necessary (P-Ex. L-2). The Private School also provides a program that includes a computer-based, password-protected information system which students and parents may access (P-Ex. L-2). The program includes a section to write comments and notes about the student’s performance in their class and includes grades (P-Ex. L-2). This program helps students with executive functioning deficits remember assignments, and plan and organize their work (P-Ex. L-2).

During the 2021/22 school year, the Student worked with the academic support teacher (a special education teacher) 35 minutes every morning before school, 45 minutes after school, and in two other 40-minute sessions per week (P-Ex. L-3). The Student benefited from scaffolding, structure, routine and having someone to check in with, and creating a plan for each evening as he often had trouble organizing his assignments (P-Ex. L-3). The program also helped him break down his assignments into smaller pieces (P-Ex. L-3). The Student’s most significant issues dealt with language-based learning, attention, and broader executive functioning (P-Ex. L-3). Emotionally, the Student struggled with anxiety and could often be self-critical and anxious particularly when he was challenged, which would cause him to shut down rather than try to work through the anxious thoughts (P-Ex. L-3). Even in the small class of 12 students, he required a lot of scaffolding and guidance from teachers to solve a word problem or make inferences from a text he was reading (P-Ex. L-3).

The Private School addressed the Student’s special education needs by providing him with a small class, 1:1 support throughout the day, consistent teacher support and prompting, and structure and consistency of routines and expectations (P-Ex. L-4). The Student was also taught at his academic level to keep him from being overwhelmed or frustrated and available to learn (P-Ex. L-4). The small class ratio with teacher support for academic instruction was critical to keeping the Student engaged and focused (P-Ex. L-4). According to the Director, the Student required a small class setting with significant adult support to make meaningful progress (P-Ex. L-4). To address his emotional issues, the Private School intervened quickly when he became anxious or self-critical (P-Ex. L-4). The Student also had weekly scheduled sessions with the counselor, small group counseling, and the counselor was available as needed (P-Ex. L-4). During this time, he learned skills and strategies to handle social and emotional challenges (P-Ex. L-6). To address the Student’s attentional issues and executive functioning deficits, he was provided with small group support; visuals; breaking information and tasks into smaller, more explicit steps; graphic organizers; prompting; and extended modeling (P-Ex. L-4).

Academically, the Student required special education support throughout the day (P-Ex. L-4). The Student was a fluent reader but had trouble decoding unfamiliar vocabulary words with unusual structure and required multiple teacher examples to internalize the correct pronunciation (P-Ex. L-4). He had trouble making logical inference in response to more challenging or open-ended fiction texts; had difficulty with reading comprehension and required explicit direct instruction in active reading strategies to aid in comprehension (P-Ex. L-4). Additionally, he required scaffolded support in analyzing text, as well as making connections and required support in selecting and finding evidence to support a claim (P-Ex. L-4). His English group used a variety of texts with a multi-sensory approach (P-Ex. L-4). He often needed to be prompted so that he could be able to utilize strategies like enunciation when decoding unfamiliar words or to make conclusions about inferences in the text (P-Ex. L-4-5).

For math, the Student was provided a multisensory approach to teach the standard sixth grade curriculum, that started the year with a unit on ratios, rates, and percentages, then moved to negative numbers, then algebra, and then data and statistics (P-Ex. L-5). The math class also used [Redacted] which individualized homework assignments and instruction (P-Ex. L-5). The Student was in a group of 12 students and the small class ensured that the teacher had a lot of time to go over his work, get feedback, and learn the process of checking his work, showing his work, and organizing his work (P-Ex. L-5). The Student had difficulty retaining the steps needed to solve word problems without templates and guidance from the teacher and struggled to organize and show his work in written form when completing any equations that require more than one step (P-Ex. L-5).

The Student also participated in a writing lab that focused on the different steps of the writing process by working in three genres (personal narrative, analytical essays, and informational writing) utilizing [Redacted] (P-Ex. L-5-6). They learned to structure their writing from basic sentences to paragraphs and longer forms and expressed their thoughts clearly to their audience (P-Ex. L-6). During the writing lab periods, the English teacher taught lessons in sentence level work, paragraph work, essay formation, and grammar (P-Ex. L-6). It was a 3-part program focusing on pre-writing, writing, and revision editing that extensively used outlines to focus on sentence level construction and putting sentences into paragraphs (P-Ex. L-6). The Student struggled with writing because he did not recognize the presence of awkward language when using new or unfamiliar vocabulary; and had difficulty planning organization during the early stages of prewriting when analyzing more conceptual topics (P-Ex. L-6). The Director testified that overall, the Private School was an appropriate setting for the Student as the small school setting and academic support were critical to his success (P-Ex. L-6).

With respect to the student’s progress at the Private Schools, a finding of progress is not required for a determination that a student's unilateral placement is adequate, but it is a relevant factor to be considered (Gagliardo, 489 F.3d at 115, citing Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21, 26-27 [1st Cir. 2002]). Here however, as a result of the special education methods and supports provided, the Student made progress, academically, and socially / emotionally. The Student’s progress was assessed throughout the year by informal assessments, midterms, and the online computer program that tracked grades and allowed teachers to give daily and weekly feedback to Parents (P-Ex. L-5). Report cards were provided every quarter (P-Ex. L-5). The academic support teacher would write up notes about what the Student accomplished and what goals were being worked on (P-Ex. L-6). Progress in those goals were measured through observation, were anecdotal, and could change as each student reached them and adjusted to a new goal (P-Ex. L-6).

Overall, the Student made progress in reading during the 2021/22 school year (P-Ex. L-5). In reading, he slowly learned to make better inferences and recognize and analyze character’s intentions and motivations better (P-Ex. L-5). In math, he learned how to use mental math and to conceptualize and determine the correct operation to use in 2 step word problems when provided with the 8 step problem solving template (P-Ex. L-5). The Student was on grade level in math (P-Ex. L-5). In writing, the Student learned to write sentences using a variety of sentence structures when provided with prompting to apply the appropriate strategies such as appositive or subordinating conjunctions (P-Ex. L-6). Based on all of the above, I find that the Private School was an appropriate placement for the Student for the 2021/22 school year.

EQUITABLE CONSIDERATIONS

Equitable considerations are relevant in determining relief “because the authority to grant reimbursement [under the IDEA] is discretionary.” Frank G., 459 F.3d at 363-64 (quoting, Burlington, 471 U.S. at 374). In balancing the equities, I find in favor of the Parent. To the extent possible, the Parent has participated in all aspects of the special education process and communicated their concerns with the District. In contrast, the District ignored the Parent’s concerns and failed to provide the Student with behavioral supports in order to transition the Student from the Private School to the public school.

DECISION

Based on a review of the record and the facts mentioned above, I find that the District failed to provide the Student FAPE during the 2021/22 school year. I further find that the Parent’s unilateral placement at the Private School was appropriate and that the Parent is entitled to reimbursement. I have considered the Parent’s other requests for relief in the Due Process Complaint, and they have been denied for lack of evidence in the record.

ORDER

Based upon the Findings of Fact and Conclusions of Law, it is hereby ordered:

ORDER THAT, the District shall reimburse the Parent and/or directly pay the Private School for all tuition and fees for the Student’s unilateral placement at the Private School for the 2021/22 school year.

SO ORDERED

DATED: October 17, 2022

Vanessa M. Gronbach

Vanessa M. Gronbach, 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.

EXHIBITS

District Exbibits

NONE

Parent Exbibits

Letter

Date

Name of Document

# of Pages

A 1/18/21 Impartial Hearing Request 3

B 8/22/21 Letter to the CSE and proof of receipt 3

C 10/21/21 Follow up Letter to the CSE and proof of Receipt 2

D 3/7/22 Affidavit of Payment 1

E 2/22/21 Contract with Private School 4

F 6/27/22 Attendance Report 1

G 9/16/21 21-22 school year schedule semester 1 1 H Various Dates Proof of payment 11

I 2021-22 Private School Description 2

J 12/15/20 Neuropsychological Report 13

K 4/8/22 21-22 school year schedule semester 2 1 L 8/29/22 Affidavit of Testimony – Director of Private School 7

M

8/31/22

Affidavit of Testimony - Parent

6

Footnotes

[1] Exhibits shall be referred to as follows: “P” for Parent Exhibit; “D” for the District’s or Department’s Exhibits.

[2] Reference to the Transcript shall be referred to as “T”.

[3] A more detailed list of exhibits is attached.