New York City Department of Education, Impartial Hearing Decision

REDACTED

FINDINGS OF FACT & DECISION

Case No.: 224697

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: February 23, 2022

Hearing Dates: October 18, 2022

October 21, 2022

November 18, 2022

Actual Record Close Date: November 21, 2022

Decision Date: December 5, 2022

Hearing Officer: Vanessa M. Gronbach, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 18, 2022

For the Student:

[Redacted], Esq., Parent Attorney

For the Department of Education:

[Redacted], Esq., District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 21, 2022

For the Student:

[Redacted], Esq., Parent Attorney

For the Department of Education:

[Redacted]., District Representative

[Redacted], Coordinator

[Redacted], Teacher Assigned

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 18, 2022

For the Student:

[Redacted], Esq., Parent Attorney

[Redacted]Parent

[Redacted], Special Education Teacher

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 February 23, 2022, regarding the 2020/21 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 2020/21 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 March 1, 2022. A prehearing conference was held on April 7, 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 to begin on October 18, 2022 and was completed in three days on November 18, 2022 (See, Transcripts).^[2] The District presented exhibits and two witnesses. The Parent presented exhibits^[3] and two witnesses, one by affidavit. The record closed on November 21, 2022. There were approximately five 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 a [Redacted] year old, 8th grade student who attended the Private School during the 2020/21 school year (P-Ex. A). The Student is classified as a student with a Learning Disability (D-Ex. 1). He was described as quiet and reserved and struggled socially, emotionally and academically (T.130).

On April 20, 2020, the District’s Committee on Special Education (“CSE”) met to develop an IEP for the Student for the 2020/21 school year (D-Ex. 1; P-Ex. A). The Parent and the Special Education Teacher (“SET”) assigned to the CSE participated in the IEP meeting for an annual review (T. 80-81; 130). The SET testified that he represented the team and served as the District representative and special education teacher (T. 81, 89). No one else participated in the meeting except him and the Parent (T. 81). The SET testified that as far as he knew the necessary parties were present and they were able to go forward with the meeting with just him and the parent (T. 82). The Parent testified that she informed the CSE that she wanted an IEP for the Student and would consider programs that would offer similar supports to what he was already receiving (T. 83; 130).

The SET testified that to prepare for the meeting, they look at clinical reports, which they discuss among themselves and look at the history of the student (T. 83). The SET testified that the psychoeducational evaluation from 2018 was not discussed at the IEP meeting because the school psychologist did not participate in the meeting (T. 90). The SET confirmed that there was a school psychologist on the team (T. 90).

The IEP recommended ICT classroom program with ICT math 8 periods/week, ELA 8 periods/week, social studies 5 periods/week and science 5 periods/week; with related services of counseling 1x30 minutes/week and occupational therapy 2x30 minutes/week (D-Ex 1-9-10; T. 85). The SET testified that the goals were developed after the meeting (T. 86). He told the parent that when they would generate the document, they would add goals that would be focused on his weaknesses (T. 86). The Parent was concerned that the ICT program would not be supportive enough because of the size and due to his anxiety (T. 131). The Parent described that when the Student became anxious, he would shut down (T. 131). The Parent wanted an environment that was supportive and small enough to address his needs (T. 131).

The Parent received a placement letter in late August 2020 (D-Ex. 2; T. 131). The Parent testified that she did not have enough time to see the school in motion because it was so close to September, but also it was a general high school and the Student was supposed to go into 8th grade (T. 131-132).The Parent was not sure if the recommended school offered any other grades but given the timing of the letter she did not explore the recommended placement (T. 132).

The Coordinator of ISS Department for the District testified regarding the recommended public school placement (T. 56). The Coordinator testified that she was not familiar with student, except for review his IEP (T. 58-59). Based on her review of the IEP she testified that the recommended placement had a spot available for the Student and that everything in the IEP was able to be implemented at the recommended school, including all related services (T. 59-60). However, when asked further, the Coordinator testified that although the IEP recommended 8 periods per week of ICT in math and ELA, they did not service that type of schedule (T. 62, 66). That because “periods” vary from junior high school to high school, and that many high schools have varying times for periods, that the school usually alters the IEP to fit the timing offered at the high school (T. 62-63, 69-70). The Coordinator also testified that the recommended school was a high school for grades 9th through 12th and there were no other grade levels at the school (T. 61).

On August 25, 2020, the Parent sent a letter to the District informing them that the student would be attending the Private School (P-Ex. G; T. 132). In that letter, the Parent shared her concerns regarding the ICT program, the recommended high school, and requested additional information of how the IEP would be implemented in a remote setting (P-Ex. G). The Private School had a small program that provided special instruction and opportunities for 1:1 instruction, both academically and socially (T. 132-133). The Parent signed the enrollment contract on September 3, 2020 (P-Ex. B; T. 133). The Parent testified that she was not able to pay the tuition up front but was still obligated to pay it as per the contract (P-Ex. B; K; T. 133).

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 presented two witnesses who made it clear that there was a denial of FAPE in this case. The Special Education Teacher (“SET”) who attended the IEP meeting was the only person present despite the meeting being an annual review (T. 80-81). 8 NYCRR 200.4(f) governs Annual Reviews and indicates that “Any meeting to develop, review or revise the IEP of each student with a disability to be conducted by the committee on special education or subcommittee thereof, pursuant to section 4402(1)(b)(2) of the Education Law, shall be based upon review of a student's IEP and other current information pertaining to the student's performance.” Factors to be considered include the results of the initial of most recent evaluation, neither of which were reviewed. “If appropriate the IEP must be revised to address…progress toward goals.” See, 8 NYCRR 200.4(f). Here, the SET testified that goals were not discussed and instead the Parent was told the goals would be added to the IEP later (T. 86).

The IEP meeting was not appropriately comprised either. Education Law section 4402 and 8 NYCRR 200.3(a)(1) indicates that a CSE shall include, but not be limited to: the parent, a regular education teacher if the student is participating in a regular education environment (which this Student was since he was recommended for an ICT class), a special education teacher, the school psychologist, a representative of the school, and someone who can interpret evaluation results. In this case, the SET acted as special education teacher and district representative, but not as the school psychologist or the general education teacher.

Moreover, the SET further testified that the “team” which included the school psychologist who did not attend the IEP meeting, met prior to the IEP meeting to discuss the case and then only sent the SET who could not review the psychoeducational evaluation from 2018 with the Parent (T. 90-91). Further, the SET testified that he did not develop an IEP for a specific grade (even though the Student was completing 7th grade at the time of the meeting) but for the Student’s level (T. 95-96). At the time of the meeting, the Student’s instructional level for reading and math was at a 5th grade level (D-Ex. 1-14; T.96). Yet, the school location recommendation was for a high school setting, in a 9th grade class, that according to the Coordinator from the District, did not serve any other grades (T 61). The Coordinator also explained that despite the recommendations on the IEP, that they could not service the 8 periods per week of ICT and would have to alter the IEP to make it consistent with the public school’s schedule (T. 65-66). In other words, they would change the Student’s IEP to fit their schedule and not the Student’s needs as determined by the CSE. For all these reasons, I find that the District did not provide the Student with FAPE for the 2020/21 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 Special Education Teacher at the Private School testified by affidavit regarding the Student and the school (P-Ex. L). She was the special education teacher for the Student during the 2020/21 school year, as well as during prior school years (P-Ex. L-1). Her duties and responsibilities included developing curriculum; designing lesson plans; providing remedial instruction across the curriculum that was specially designed for students with learning disabilities, speech deficits and attentional challenges; differentiating instruction for students in the class, conducting formal and informal assessments of all students and monitoring students’ progress (P-Ex. L-1). During the 2020/21 school year, she co-taught with another teacher who had a Master’s Degree in Reading instruction and was New York State Licensed in Reading (P-Ex. L-1). The Student was in 8th grade during the 2020/21 school year (P-Ex. L-1). She worked closely with him daily, instructing him across curricula, observed and monitored his progress on a daily basis, collaborated with the co-teacher and the Student’s service providers to ensure that he received appropriate educational instruction in all deficit areas (P-Ex. L-1). They developed and worked on goals in the Student’s areas of deficit and incorporated them into an individualized education plan created by the Private School (P-Ex. H).

At the beginning of the 2020/21 school year, she found that the Student had significant academic weaknesses, particularly in the areas of receptive and expressive language delays, deficits in language processing, working memory, reading comprehension and decoding skills (P-Ex. L-1). The Student had a lot of difficulty following complex directions, retelling a story, and presented with deficits in phonemic awareness which resulted in decoding and spelling challenges (P-Ex. L-1). The Student had relative strengths in mathematics and significant weaknesses in literacy skills and processing (P-Ex. L-1). He was reading at an end of fifth grade/beginning of sixth grade level according to assessments and required significant levels of support (P-Ex. L-1). The Student’s primary reading deficits included reading comprehension challenges due to struggles with decoding and fluency (P-Ex. L-2). Without direct teacher assistance, the Student would sometimes shut down during class or engage in silly behaviors and required regular redirection and prompting (P-Ex. L-1-2).

The Student’s classroom was comprised of nine students and there was a teacher’s aide in the classroom at all times (P-Ex. L-2). The students typically worked in very small groups and often received individualized attention and instruction in groups of three or four students (P-Ex. L-2). This small group instruction was crucial for the Student as he often required prompting, redirection and individualized instruction - particularly in literacy (P-Ex. L-2). The Student required a lot of direct instruction, time to process information and positive reinforcement (P-Ex. L-2). The students in the class were all learning disabled/language impaired and share a commonality of needs including academic and social needs (P-Ex. L-2). The students in the class were grouped appropriately according to age as well (P-Ex. L-2).

During Language Arts class, the Student would work with his class and then break out with the Special Education Teacher and the assistant to further work 1:1, and in small groups, on reading fluency, decoding, and comprehension (P-Ex. L-2). The small reading group allowed him to get the attention and support he needed (P-Ex. L-2). With specific teaching strategies, modeling and practice, the Student made progress in reading and moved up one grade level by the end of the 2020/21 school year (P-Ex. L-2). The class utilized several special education instructional programs to teach reading and writing, including standardized systematic programs that include a multi-sensory approach to reading and based in the principles of Orton Gillingham (P-Ex. L-2). The implementation of the programs allowed the Student to make significant reading progress over the course of the school year and addressed his difficulty with decoding and he made gains in fluency and comprehension (P-Ex. L-2). By the end of the 2020/21 year, he progressed to a seventh-grade reading level, his vocabulary expanded through reading literary works, he learned to answer literal and inferential questions with minimal teacher’s assistance, improved in his ability to decode unfamiliar words based on phonics rules, and learned to read and summarize trade books (P-Ex. L-2-3).

At the beginning of the 2020/21 school year, the Student was performing at a modified seventh grade level in mathematics – he was able to add, subtract, multiply and divide fractions, find square roots, and solve two step algebraic equations among other skills (P-Ex. L-3). The small group instruction in his math class was critical (P-Ex. L-3). The Private School set several goals in math and they used manipulatives, visual aids, and hands-on activities to address his needs (P-Ex. L-3). They used a Math program that introduced the skills and concepts he had not yet master while helping to build deep conceptual understanding of key math skills and concepts at the grade level at which he was performing (P-Ex. L-3). All skills were explicitly taught and practiced repeatedly to increase automaticity and ensure that the Student mastered the skills (P-Ex. L-3). The Student progressed nicely in math as it was an area of relative strength for him, and he made a year’s worth of progress (P-Ex. L-3).

To address the Student’s writing needs they used a writing method that focused on a systematic set of writing strategies designed to build the foundation skills of writing to ensure that students become competent writers (P-Ex. L-3). The Student worked on expanding upon his ability to construct paragraphs (P-Ex. L-3). The Student had challenges developing competent paragraphs and multi-paragraph pieces of writing and needed to work on writing lengthier written pieces (P-Ex. L-3). The Student worked on goals targeting paragraph and essay writing; incorporating sequence words, dialogue, feelings and suspense in his writing; incorporating basic grammar rules; and editing and revising (P-Ex. L-3). He was taught to write paragraphs with evidence and detail to build a writing piece using the five steps of the writing process (P-Ex. L-3-4). By the end of the school year, he was able to apply numerous writing skills and strategies to a variety of writing pieces; he learned to edit and revise his work by using wordlists and a revising checklist with prompting; and he was able to incorporate dialogue into his writing (P-Ex. L-4).

The Student received speech/language therapy twice weekly to address deficits in receptive and expressive language, working memory, reading comprehension, and decoding, following complex directions and sequences, and retelling a story (P-Ex. L-4). The Speech provider used a phonological approach to improve phonemic awareness, and worked on conversation and story retelling skills (P-Ex. L-4). The Student made progress toward each of his speech goals as well (P-Ex. L-4).

During the 2020/21 school year, the Student’s social and emotional development progressed as well (P-Ex. L-4). He received counseling once weekly individually and once as part of a group (P-Ex. L-4). The Student first presented as a student who would frequently shut down when feeling overwhelmed however, due to the nurturing and supportive environment at the Private School and working with him to navigate feelings of being overwhelmed, instances of shutting down became much less frequent by the end of the 2020/21 school year (P-Ex. L-4).

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 demonstrated above and as a result of the special education methods and supports provided, the Student made progress, academically and socially and emotionally. He went up a grade level in reading and math and made progress in his related services (P-Ex. I; J). The Parent testified that the Student did nicely, especially after COIVD had taken a toll on him emotionally and socially (T. 134). Parent was in touch with his teachers and they reported that he was progressing nicely and doing well socially, emotionally and academically (T. 134). The Private School provided the Student with intensive supports, material and curriculum based upon the Student’s unique needs, small classes and an individualized approach that helped him grow as an academic and social student. Based on all of the above, I find that the Private School was an appropriate placement for the Student for the 2020/21 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.

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 2020/21 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 the secular portion of all tuition and fees for the Student’s unilateral placement at the Private School for the 2020/21 school year.

SO ORDERED

DATED: December 5, 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 Exhibits

Ex. Description Date Pages

1 IEP 4/20/20 16

2 PWN for placement 8/23/20 6

3 Psychological Report 4/20/18 5

Parent Exhibits

EX.

DESCRIPTION

DATE

PAGES

A Impartial Hearing Request 2/23/22 5

B Enrollment Contract 9/3/20 1

C Tuition Affidavit 5/11/22 1

D Attendance Record 6/23/21 1

E Program Description 2020-2021 1

F 2020-2021 Class Schedule 2020-2021 1

G Ten Day Notice 8/25/20 3

H Private School IEP December 2020 4

I End of Year Report June 2021 2

J Speech/Language Progress Report November 2020 2

K Parents’ Tax Returns 2/23/22 2

L

Witness Affidavit of Special Education Teacher

Undated

4

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.