Harrison Central School District, Impartial Hearing Decision

____________________________________________________________ In the Matter of the Due Process Hearing Between The Parents of [REDACTED][REDACTED] And The [REDACTED] Central School District NYSED Case #572511

Pursuant to the Provisions of Article 89 of the Education Law of the State of New York

[REDACTED], ESQ.

Impartial Hearing Officer

33 [REDACTED]

Delmar, New York 12054

APPEARANCES:

[REDACTED]Attorneys for [REDACTED] Central School District

10[REDACTED} Street

[REDACTED], New York 106606

[REDACTED] [REDACTED] ESQ., Of Counsel

[REDACTED] [REDACTED], ESQ., Of Counsel

LAW OFFICES OF [REDACTED] [REDACTED]

Attorneys for Parents

111 [REDACTED] – 22nd Floor

[REDACTED] 10038

[REDACTED] [REDACTED], ESQ., Of Counsel

DECISION

JURISDICTION

This proceeding was commenced by [REDACTED] [REDACTED and [REDACTED] [REDACTED], parents of [ [REDACTED] [REDACTED], a student residing within the territorial jurisdiction of the [REDACTED] Central School District and a student previously determined to be a student with a disability, (hereinafter referred to as “Student”), by the filing by their attorneys, [REDACTED], of a Due Process Complaint Notice, dated April 12, 2022 with the [REDACTED Central School District (hereinafter referred to as “District). That Due Process Complaint Notice alleged that District had failed to recommend for Student a free, appropriate public education (FAPE) for the 2020—2021 school year (I.H.O. Exhibit I) and sought reimbursement for monies paid by Parents for Parents’ unilateral placement of Student at [REDACTED] for the 2020-2021 school year, as well as transportation to and from such School.

In accordance with the Regulations of the Commissioner of Education of the State of New York, the undersigned was appointed as the Impartial Hearing Officer authorized to preside over the above-captioned proceeding on May 3, 2022.

PRELIMINARY PROCEDURES

A Pre-Hearing Conference was held with Counsel on June 9, 2022, at which I was advised that the matter would be going to hearing. Hearing Dates were established for September 13, 2022; September 21, 2022; September 22, 2022; September 29, 2022; and September 30, 2022. All hearings were to be conducted virtually. However, on the application of Parents’ Counsel, who cited his recent awareness of his unavailability for hearing on September 13, 2022, such hearing date was cancelled and replaced with the hearing date of October 20, 2022. Thereafter – on August 25, 2022 – I was again advised by Parents’ Counsel that he was forced to advise of his unavailability for hearing on September 29, 2022. In light of such, that date was also cancelled, but replaced by the new hearing date of October 3, 2022.

The hearing was commenced on September 21, 2022. However, on the morning of September 22, 2022, I was advised by telephone that Parent’s Counsel [REDACTED] was ill and unable to proceed. Upon application, such hearing date was cancelled.

THE HEARING

Hearings in the above matter were conducted virtually on:

September 21, 2022

September 30, 2022

October 3, 2022

October 20, 2022

.

District was directed, as it bore the burden of proof in establishing its case, to proceed first. In addressing its obligation, District submitted the sworn testimony of four (4) witnesses. They were:

[REDACTED] [REDACTED] Interim Director of Special Education Support Services for District [REDACTED] [REDACTED] A Special Education Teacher Employed by District – Participated in preparing Student’s Individualized Education Program for the 2020-2021 School Year

[REDACTED] A Speech/Language Pathologist Employed by District – Participated in preparing Student’s Individualized Education Program or the 2020-2021 School Year

[REDACTED] A School Psychologist Employed by District – Provided Expert Testimony in interpreting a Psychological Evaluation of Student conducted by a former District Psychologist In addition to the witnesses called by District, District offered fourteen (14) exhibits into evidence, all of which were received.

Parents, proceeding after District rested its direct case, submitted, in support of Parents’ case, the testimony of (3) witnesses. They were:

[REDACTED] A Psychologist in Private Practice – Began

Providing therapy services to Student September of 2021

[REDACTED] Director of Placement at [REDACTED]s School [REDACTED] [REDACTED] Father of Student In addition to the witnesses appearing for Parents, Parents offered into evidence five (5) exhibits, all of which were received.

At the conclusion of the hearing, both parties requested the opportunity to submit Post-Hearing Briefs for my consideration. Those requests were granted, so long as such were submitted no later than December 22, 2022. However, upon joint application of Counsel, that date was extended to January 20, 2023, and again, on January 12, 2023, to February 8, 2023. Both parties submitted such Briefs in a timely manner and both were read and considered.

The Record Close Date was February 10, 2023.

THE STUDENT

The Student, whose educational program is part of the subject of this proceeding, is presently thirteen years and seven months of age, having been born on [REDACTED]. According to the testimony of his father, Student began his formal education when Student was enrolled in Kindergarten at [REDACTED], located in [REDACTED], New York, a school in which all of his older siblings had attended. However, during the Student’s First Grade, it became clear that Student had certain deficits which could not be addressed at [REDACTED]. Beginning in September of 2016, Student was enrolled by Parents at the [REDACTED], located in [REDACTED], Connecticut. Student has remained at such facility and, for the 2020-2021 school year, was scheduled to enter Sixth Grade.

It appears, from a review of various documents, including a Social History Review performed on February 14, 2019 (District Exhibit 7) that Parent had reported that Student had been evaluated by a [REDACTED] during Student’s First Grade which indicated a Learning-based Language Disorder; Attention Deficit Hyperactivity Disorder Unspecified; Dyslexia; Disorder of Written Expression, Mixed Receptive and Expressive Language Disorder, and Dysgraphia. District’s Subcommittee on Special Education had thereafter convened on May 13, 2019 and prepared an I.E.P. (District Exhibit 2), in which Student was classified as Other Health Impaired. That I.E.P. also indicated that it had “reviewed [REDACTED]’s recommendation and agreed with the following: special education support throughout the day; small classes; multi-sensory teaching; direction instruction and modeling; being taught in a highly structured, systematic approach following a “I do, We do, You do” model.”.

THE 2020-2021 SCHOOL YEAR

At some point during the 2019-2020 school year, District sent to Parents a form entitled “Resident Student Parentally Placed in Non-Public Schools Outside of District PLANNING FOR THE 2020-2021 SCHOOL YEAR” (Exhibit 11), seeking to learn of Parent’s intention of Student’s placement for the upcoming school year. Parent responded, dated January 7, 2020, that “We have not decided on a program for the 2020-2021 school year. We would like to consider the District’s recommendation before making a determination.”

I note that Parents, despite wanting “to consider the District’s recommendation before making a determination”, had, within weeks of that response, signed a Re-Enrollment Contract with [REDACTED], dated by Parents January 22, 2020 and January24, 2020, which states: “I/We agree to enroll [Student] at [REDACTED] for the academic year 2020-2021.” (Parents’ Exhibit A). However, while requiring a non-refundable payment of ten percent of the tuition by January 31, 2020, I note that the Contract appears to permit a default without penalty if other payments are not made by June 1,2020.

Thereafter, by letter to Parents dated March 4, 2020, District advised Parents of a scheduled meeting date to conduct an Annual Review (District Exhibit 12).

A Subcommittee of Special Education convened on May 1, 2020 to develop Student’s Individualized Education Program (I.E.P.) for the 2020-2021 school year. The Meeting was chaired by [REDACTED]. Also in attendance were [REDACTED], District School Psychologist; District Special Education Teacher [REDACTED] [REDACTED]; District Speech/Language Therapist [REDACTED]; [REDACTED]s Educational Coordinator [REDACTD]; [REDACTED]s Teacher [REDACTED]; and both Parents.

The Subcommittee created an I.E.P. for Student for the 2020-2023 school year that classified Student as Other Health Impaired. It provided that Student receive his program in a Special Class having a staffing ratio of 12:1+1 for Reading; English; Math; and Social Studies: Science in an Integrated Co-Teaching Class; an Academic Skills Class with a staffing ratio of 12:1; as well as Speech/Language Therapy in a Small Group two times in a six day cycle in a classroom; and Speech/Language Therapy in a Small Group once in a six day cycle in the Therapy Room; Counseling once per six-day cycle in the Counselor’s Office; and Social Skills Counselling once per six day cycle, also in the Counselor’s Office (District Exhibit 13). The I.E.P. also contained Measurable Annual Goals in Study Skills; Reading; Writing; Mathematics; Speech/Language and Social/ Emotional/Behavioral. The Subcommittee also recommended fifteen Supplemental Aids and Services. Placement was stated to be at the [REDACTED] Middle School (although I note a misplaced Transportation note that Student needs bus transportation to [REDACTED] Elementary).

Parents did not accept the educational program offered by District for the 2020-2021 school year, but continued Student’s placement for the 2020-2021 school year at [REDACTED]. As previously noted, by Due Process Complaint dated April 28, 2022, Parents commenced this Due Process Hearing, seeking reimbursement for their unilateral placement of Student at [REDACTED] for the 2020-2021 school year.

It has been established that Boards of Education may be required to pay for educational services obtained for a child by the child’s Parents, if (1) the services offered by the Board of Education were inadequate or inappropriate; (2) the services selected by the Parents were appropriate and; (3) equitable considerations support the Parent’s claim. Such prerequisites were established by the United States Supreme Court when considering claims for reimbursement brought by parents who had unilaterally placed their disabled child in a private facility. (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); Application of a Child with a Disability, Appeal No. 01-052). Further, it was later held by the same Court that the fact that the facility selected by the parents to provide special education services to the child had not been approved as a school for children with disabilities by the state agency would not be dispositive of a parents’ claim for tuition reimbursement (Florence County School District 4 et al. v. Carter by Carter, 510 U.S. 7 [1993]). The Court noted that parents who unilaterally decide to place their child do so at their own financial risk.

Burden of Proof

Generally, in applying the three-prong standard enunciated by the Supreme Court of the United States in the Burlington and Carter decisions above-cited, it is necessary, in my consideration of the issues presented, that I first determine whether or not the School District offered to the student a free, appropriate public education. The burden of establishing that it did so rests upon the District (N.Y.S. Education Law§4404). Under the guidelines established by Burlington and Carter, should I determine that District offered Student an appropriate educational program, my inquiry into Parents’ request would cease at that point, for if a district has offered an appropriate program, a parent’s right to the requested relief must be denied. Under the same guidelines, if it is determined that District failed to establish the appropriateness of its program, I must then determine the appropriateness of the Parents’ unilaterally selected educational facility. The burden of establishing such appropriateness rests upon Parents (N.Y.S. Education Law §4404). Should Parents fail to establish the appropriateness of the unilaterally selected facility, Parents’ request for relief must be denied. If the unilaterally selected educational facility is determined to be appropriate, I must, because the awarding of any relief is possible only by an invocation of the equitable powers inherent in the proceeding, then review the equities in order to determine whether equitable considerations favor an award of any relief to the Parents.

DISCUSSION

Essential to any determination of an entitlement to reimbursement is whether the agency responsible for a student’s education provided that student with a free, appropriate public education (FAPE). However, exactly what criterion is employed to determine if – or whether – a free, appropriate public education has been provided? It has often been stated that a FAPE is offered to a student when a board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). The mandate that a Board comply with all procedural requirements set forth in IDEA That resulted in courts and reviewing officers concluding the negative – that is, that if all procedural requirements were not fully complied with, it necessarily had to follow that a free, appropriate public education had not been provided. Courts and reviewing officers, as well as the United States Congress itself, were concerned with such outcome. Courts considering that issue therefore ruled that, while school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (A.C. v. Bd. of Educ., 2008 WL 5505470, at *4 [2d Cir. [REDACTED]. 16, 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]). Such also resulted in the United States Congress amending IDEA, so as to now require that if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the Parent’s' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]

There have been other judicial, quasi-judicial or regulatory determinations that provide beneficial guidance to my review of the issues presented in this proceeding. The student's recommended program must be provided in the Least Restrictive Environment (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. §§ 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see P. v. Newington Bd. of Educ., 2008 WL 4509089, at *7 [2d Cir. Oct. 9, 2008]; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132). A school district may be required to belatedly pay expenses that it should have paid all along and would have borne in the first instance had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see also20 U.S.C. § 1412[a][10][C][ii]; 34 C.F.R. § 300.148). The IDEA directs that, in general, an impartial hearing officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving Parent’s" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and... affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). Most recently, the United States Supreme Court, in deciding Endrew F. v. Douglas City Sch. Dist. 137 S. Ct. 1001; 197 L. Ed 2d 335 (2017), held that the Individuals with Disabilities Act (IDEA) “requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”

It is this last requirement – that the IEP must be "reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances" - that will guide my review in this matter.

PRONG ONE

As has been noted, it is initially the obligation of District to establish that it offered Student a free, appropriate public education for the 2020-2021 school year, i.e., was District’s program reasonably calculate to enable Student to make progress appropriate in light of Student’s circumstances.

District presented the testimony of four District employees: Interim Director of Special Education Services [REDACTED] [REDACTED]; Special Education Teacher [REDACTED][REDACTED]; Speech/Language Therapist [REDACTED]; and School Psychologist [REDACTED]. It is noted that, at the Subcommittee Meeting of June 1, 2022, the Chair was [REDACTED]. Witness [REDACTED] explained that she would go over the challenged I.E.P. under review, as Chair [REDACTED]was no longer employe by the District. Thus, while Witness [REDACTED] was unable to state what specifically transpired at the Meeting, she was able to explain the various programs which the Subcommittee had recommended, as well as the differences expected between the Elementary School program and the Middle School set-up. While clearly, it would be optimum for the Chair who presided over the Meeting to have testified, I recognize that she was no longer available to do so.

Such also was the case for Witness [REDACTED]. While Witness [REDACTED] is a psychologist in the employ of the District, he also was not a member of the Subcommittee which prepared Student’s 2020-202 I.E.P. Rather, as was the case with Witness [REDACTED], he was filling in for Psychologist [REDACTED] [REDACTED], who had also left District’s employ and was thus not available to testify. And, again, while it might have been better to have the psychologist who was actually present when the Subcommittee prepared Student’s I.E.P., Witness [REDACTED] was able to review the Psychological Evaluation that had been prepared by Psychologist [REDACTED] and provide information regarding the various areas of testing and the results of such.

Direct awareness of the actions of the Subcommittee were provided by Witnesses [REDACTED] [REDACTED] and [REDACTED] [REDACTED], both of whom were members of the Subcommittee that created Student’s I.E.P. Witness [REDACTED] testified that she had included in her description of Student’s abilities or deficits information that had been gleaned from [REDACTED] progress reports or information provided from either of the two representatives from [REDACTED] who were participating in the Meeting; [REDACTED] [REDACTED] and [REDACTED] [REDACTED]. Witness [REDACTED] noted that the Subcommittee had followed the suggestions of the [REDACTED] participants in providing for small-class settings for Student. I also note that Witness [REDACTED] had been involved in the preparation and review of Student’s educational information as a participant of the Subcommittee review of Student in the May 13, 2019 meeting charged with the preparation of Student’s I.E.P. for the 2019-2020 school year.

Witness [REDACTED] advised that, while recommendation was made for a 12:1+1 class setting in the 2020-2021 I.E.P., such classes usually consisted of only six or seven students – a ratio somewhat similar to what Student had experienced at his [REDACTED].

Witness [REDACTED], a Speech/Language Therapist with District, was also a member of the Subcommittee that met to prepare Student’s 2020-2021 I.E.P. Witness [REDACTED] testified regarding the Student evaluation she conducted on November 30, 2018 (District Exhibit 6) and the scores achieved, as well as her role in the meeting in which she reviewed the December 2019 Progress Report issued by [REDACTED] (Parents Exhibit A).

All District witnesses testified that the proposed program as set out in the I.E.P. would provide Student with not only an appropriate program, but a robust one.

However, I have great concern regarding the placement of Student in an Integrated Co-Teaching Class for Science one period daily (District Exhibit 13). I note that all other educational placements were in a 12:1+1 setting, with the small number of students somewhat comparable Student’s settings at [REDACTED], which, according to District’s witnesses, District was attempting to continue. Placing Student in an Integrated Classroom setting – even with his Special Education Teacher – present, would not address the real possibility of Student having negative interaction with other – and unfamiliar - students. District was aware, from the Psychological valuation conducted by District Psychologist [REDACTED] (District Exhibit 8) that Student had Very Elevated Scores in Hyperactivity/Impulsivity; Defiance /Aggression; and Peer Relations.

Further, the Regulations of the Commissioner of Education (8 NYCRR 200.3 (C)(2)(ii) mandate that a Subcommittee shall include “not less than one regular education teacher of the student whenever the student is or may be participating in the regular classroom environment.”.

Upon questioning, District stated that [REDACTED] [REDACTED] one of the two representatives from [REDACTED] School who were participating at the conference, was serving in the role of the General Education Teacher. However, there is no proof that Ms. [REDACTED] was a general education teacher. Indeed, testimony established that [REDACTED] had only special education students.

It is, therefore, my finding and determination that Student’s proposed I.E.P. was, for that reason, inappropriate.

Having so determined, it is my finding and determination that District has failed to establish by a preponderance of the evidence, that it offered Student a free, appropriate public education for the 2020-2021 school year.

PRONG TWO

As previously noted, in order to prevail, Parents must bear the burden of establishing that their unilateral placement of Student at the [REDACTED] for the 2020-2021 school year was appropriate. However, such are not as extensive as those imposed upon a district. As noted by the Court in Gagliardo v. Arlington School Dist; 489 F. 3d. 105 (2nd Cir; 2007):

“To qualify for reimbursement, Parents need only demonstrate that the placement provides educational instruction specifically designed to mee the unique needs of as handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.”

What are the unique needs of the Student? In the I.E.P. under review, they are based on a diagnosis made by [REDACTED] [REDACTED] back in 2016, when Student was diagnosed as having Dyslexia; Disorder of Written Expression; ADHD - Combined Type; Mixed Receptive-Expressive Language Disorder; and Dysgraphia. Witness [REDACTED] stated that, when evaluating Student, she found no evidence of Dyslexia or Dysgraphia (T.R. 142-143) Parent also reported to the Subcommittee preparing Student’s I.E.P. that she felt Student is no longer Dyslexic (District Exhibit 13 at p.7).

Parents presented the testimony of three witnesses. They were Student’s father [REDACTED] [REDACTED]; Dr [REDACTED], a psychologist; and [REDACTED] [REDACTED], Director of Placement at the [REDACTED].

[REDACTED] [REDACTED] testified generally about Student and what the witness perceived were his main areas of concern. Witness [REDACTED] confirmed that Student was first enrolled at [REDACTED] in September of 2016, entering the Second Grade. Student has continued at such placement and, as of the beginning of the 2020-2021 school year, was transitioning to the Sixth Grade. Witness [REDACTED] noted that Student’s prime need was in his social and emotional development – that Student could not integrate socially (T.R.477). When inquiry was made into what the [REDACTED] program was doing to address such needs, Witness [REDACTED] provided generalized statements with little basis, other than what he had been told by the School. I have given little weight to such responses. I did not accept such testimony as evidence that [REDACTED] was meeting Student’s needs.

Dr. [REDACTED] is a psychologist, who, according to his testimony, specializes in providing therapy to adolescents and families. Dr. [REDACTED] was retained to provide therapy services in September of 2021 on a weekly basis for social and emotional functioning – anxiety (T.R.356). Dr. [REDACTED] noted that Parents had advised him that Student was on the Autism Spectrum. Such was the first mention of Autism in the Record.

While no findings made by Dr. [REDACTED] are relevant to the Program offered by District or the programs Student received at [REDACTED], as all such findings came after the conclusion of the 2020-2021 school year, I find that such speaks volumes about Witness [REDACTED]’s estimation of the sufficiency of services being provided – or not – by [REDACTED]s School, as, withing months of the conclusion of the 2020-2021 school year, Parents south and obtained weekly therapy sessions to address what was the prime concern of Parent during the 2020-2021 school year.

Parents’ other witness was [REDACTED] [REDACTED], who is currently the Director of Placement at the [REDACTED]. Witness [REDACTED] testified that she has been employed by the School for almost nine, years, having served as a Special Education Teacher; the Assistant Director of Admissions and Placement; Director of Placement; Director of the Schools K-3 Foundation Program; and currently Director of Placement. Witness [REDACTED] described [REDACTED] as a “private, co-educational school for kids with language-based learning disabilities.” located in Greenwich Connecticut (T.R.399).

Witness [REDACTED] had no involvement with Student during the 2020-2021 school year. Her testimony was simply based on a review of the bi-annual Reports that the School had prepared by staff and sent to parents in December and June of the school year (T.R.400). Witness [REDACTED] acknowledged that she had only received those Reports (Parents’ Exhibits C and D) the very morning she was called to testify, and that she had never spoken to any of Student’s teachers regarding Student and the services he received during the 2020-2021 school year. So, basically, Witness [REDACTED] read the Reports, and attempted to expand on the described programs with which she was familiar. When asked how the teachers in the 2020-2021 school year assessed Student, Witness [REDACTED] responded that such was based on the assumption that the School followed the basic plan of using individual assessments (T.R.407). Witness [REDACTED] also confirmed that all assessments were informal and that none was based on data assessments (T.R.445). Witness [REDACTED] also confirmed that the [REDACTED] was not appropriate for children with Autism or with primary Social-emotional issues (T.R.451).

I find that none of the testimony provided by Witness [REDACTED] is sufficient to establish the appropriateness of the program provided by the [REDACTED] for the 2020-2021school year. More than that, it deprived the hearing of hearing directly from Student’s teachers as to what actually occurred and, most importantly, to be able to be cross-examined as to such testimony. While I accepted some of the testimony provided by District witnesses [REDACTED] and [REDACTED] because other, more appropriate witnesses had let the employ of District, there was nothing presented that staff at the [REDACTED] were unable to appear and testify. The fact that the entire hearing was virtual made any appearance simple.

Nor do I find that the bi-annual Reports sent by the School in December and June of the school year. While I have repeatedly reviewed them, it is my finding that they provide little in the way of information regarding Student’s benefit from such program, especially as any statements were based on simple informal assessments by the very teacher whose responsibility it was to provide an appropriate education, such that self-interest would probably interfere with a true assessment. Indeed, although Student had obtained on the Connors Ratings, Very Elevated Scores in the areas of Peer Relations and Defiance/Aggression, there appeared not one report of even one instance of any inappropriate conduct of Student.

Finally, it is noted that the Individuals with Disabilities Education Act mandates that to the maximum extent possible, disabled students are to be education with non-disabled students. As Witness [REDACTED] testified, here are no non-disabled students at [REDACTED]. Student has no opportunity whatsoever to observe or model his conduct on that of as non-disabled peer.

Based upon the above, it is my finding and determination that Parents have failed in sustaining their burden of establishing that their unilateral placement of Student at the [REDACTED] for the 2020-2021 school year was appropriate.

Having made such determination, I find that it is unnecessary that I consider Prong Three, i.e., that Equitable Considerations favor the Parents in this proceeding.

Based upon he above, it is HEREBY ORDERED that Parents’ Due Process Complaint be, and the same hereby is; DISMISSED.

Dated: February 24, 2023 Delmar, New York

___________________________

JAMES P. WALSH

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parents and/or the [REDACTED] Central 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 to 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 thew 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.

DISTRICT’S EXHIBITS RECEIVED IN EVIDENCE

Exhibit # # of Pages Description By

1 1 5/13/19 Meeting Attendance Sheet District 2 15 Student’s I.E.P. dated 5-13-19 District 3 9 District’s Classroom Observation Form, District by Dr. [REDACTED], dated 11-5-18

4 10 Educational Evaluation, dated 10-5-18, by District

[REDACTED] [REDACTED] (3);

Various Test Scores (7)

5 3 Occupational Therapy Re-Evaluation by District [REDACTED] of Westchester Therapy Solutions, dated 10-29-18

6 8 Speech and Language Re-Evaluation of District

Student, dated 11/30/18 by [REDACTED],

Speech Language Pathologist

7 2 Social History Review, dated 2/14/19, by District

Dr. [REDACTED]

8 9 Psychological Evaluation of Student, dated District

2-27-19, by Dr. [REDACTED]

9 2 Report To Whom It May Concern, dated District

4/25/19, from Speech and Language

Pathologist [REDACTED] of [REDACTED] Speech and Language Center

10 15 Cover Letter to Parents (1): December 2020 District

Student Progress Report from [REDACTED]

School (14)

11 1 Form: Resident Student Parentally Placed District in Non-Public Schools Outside of District,

PLANNING FOR THE 2020-2021 SCHOOL

YEAR, dated 1-7-20 and signed by Parent

12 2 Meeting Notice to Parents, dated 3-4-20 District

13 14 I.E.P. prepared by District’s C.S.E. for District

Student on 5-1-2020

14 2 Prior Written Notice to Parents, dated District

7-6-20

PARENTS’ EXHIBITS RECEIVED INTO EVIDENCE

A 2 [REDACTED] Program Statement Parents

B 3 2020-2021 Re-Enrollment Contract between Parents

[REDACTED] and Parents, dated

01/22/2020 and 01/24/2020 by Parents

C 20 Cover Letter to Parents (1): December 2020 Parents Student Progress Report from [REDACTED]

School (19)

D 20 Cover Letter to Parents (1): June, 2021 Parents Student Progress Report from [REDACTED]

School (19)

E 1 [REDACTED] Attendance Report for Parents

Student – School Year 2020-2021

HEARING OFFICER’S EXHIBIT PLACED IN EVIDENCE

I 8 Parents’ Due Process Complaint, dated 04/28/2022 IHO

OTHER DOCUMENTS CONSIDERED

Closing Statement on Behalf of District In Opposition To Parents’ Complaint

– 22 pages

Petitioners’ Closing Brief – 25 pages