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FINDINGS OF FACT AND DECISION
Case Number: 226497
Student’s Name: [REDACTED]
District: [REDACTED]
Hearing Requested By: Parents
Hearing Officer: Martin J. Kehoe III, Esq.
Actual Record Close Date: September 15, 2023
I. Introduction
This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer (“IHO”) in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (“IDEA”) and the New York State Education Laws. The School District will be referred to as District, the parent(s) as Parent(s) and the student will be referred to as Student.
II. Overview This is a “reimbursement” case. A board of education may be required to reimburse parents for their expenditures for private education services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim. Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); Sch. Comm. Of Burlington v. Dep’t. of Educ., 471 U.S. 359, 369-70 (1985). The analytical framework for deciding a reimbursement case is typically called a three-prong analysis.
This case involves a demand for tuition reimbursement for the 2021-2022 school year (“SY”). The Parents filed the complaint notice on May 18, 2022. (Ex. A) I was appointed as the IHO on June 28, 2022. A hearing was held across multiple dates.[1] The Parents introduced exhibits A-T into the record and called four (4) witnesses: The primary Therapist at the residential program, the Father, the Academic Director at the residential program, and the Student Coordinator at the wilderness program. The District did not offer any exhibits, nor did they have any witnesses testify on their behalf.
a. Parents’ Position The Parents allege that the District failed to provide the Student a Free Appropriate Public Education (FAPE) for the 2021-2022 SY. (Ex. A-1) Specifically, the Parents claim that the Committee on Special Education’s (“CSE”) program recommendation “failed to conduct any evaluations or to collect adequate and appropriate data on which to base its recommendation.” (Ex. A-5)
The Parents note that the Individualized Education Plan (“IEP”) was “The goals and the IEP were not reasonably calculated to confer educational benefit upon the student.” (Ex. A-6).
To remedy the above, the Parents seek reimbursement for the tuition costs associated with the unilateral placement of the Student at the Private School and residential program.
b. District’s Position The District did not present a Prong I case, introduce evidence, or bring any witness to testify on their behalf.
c. Background
of the Case On January 28, 2022, a CSE meeting was held to develop an IEP for the Student. The Parents sent a ten-day notice letter[2] on February 28, 2022, when they sent the District in which they rejected School for the 2021-2022 SY. (Ex. F) Finally, on May 18, 2022, the Parents filed the complaint notice. (Ex. A) d. Student History The Student was [[REDACTED]] years old at the start of the 2021-2022 SY. During the 2021-2022 SY, the Student carried a disability classification of Emotional Disturbance. 3 (Ex. A-4).
e. Legal Overview The IDEA is a comprehensive statutory framework established by Congress to aid the states in providing disabled children with a FAPE. 20 U.S.C. § 612(a)(I). “A [FAPE] is available to all children with disabilities residing in the state between the ages of[3] and 21.” 20 U.S.C. § 612(a)(1)(A). The IDEA defines a FAPE as special education and related services that: [REDACTED] where [the Student] has been attending since December 9, 2021, and have been advised that she will be discharged on March 10, 2022. We have been working with the therapists to find an appropriate school that can meet her significant academic and behavioral needs. We were able to secure a placement at.[the Private Program]. We reserve the right to seek tuition reimbursement of our unilateral placement at the public's expense. (Ex F.1).
(A) have been provided at public expense, under public supervision and direction, and without charge,
(B) meet the standards of the state educational agency, (C) include an appropriate preschool, elementary, or secondary school education in the state involved, and
(D) are provided in conformity with the individualized education program required under § 614(d) of this title. 20 U.S.C. § 601(9). [4]
A FAPE is crafted through the collaboration of the disabled student’s parents, teachers, and school district administrators and is recorded in an IEP. 20 U.S.C. § 614(d). The “core of the statute … is the cooperative process that [IDEA] establishes between parents and schools.” Schaffer v. Weast, 546 U.S. 49, 53 (2005). The IEP is, in brief, a comprehensive statement of the educational needs of a disabled child and the specially designed instruction and related services to be employed to meet those needs. 20 U.S.C. § 601(14). In New York State, the IEP is produced by a CSE, whose members are appointed by the board of education or trustees of the school district. N.Y. Educ. Law § 4402(1)(b)(1) (McKinney Supp. 2005). The IDEA provides numerous procedural safeguards to protect the due process rights of disabled children and their parents. See generally, 20 U.S.C. § 615. These procedures include the opportunity for parents to obtain an IEE of the child (20 U.S.C. § 615(b)(I)) and file a complaint with the state or local educational agency (20 U.S.C. § 615(b)(6)). Any such complaint is resolved through an “impartial due process hearing” in which parents of disabled children have “an opportunity to present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a [FAPE] to such child.” 20 U.S.C. § 615(b)(6). Parties to an administrative proceeding under the IDEA have the right to written findings of fact and decisions on any complaint about the provision of a FAPE. Polera v. Board of Education Newburgh, 288 F.3d 478, 482 (2nd Cir. 2002).
III. Prong I
a. Did the District Present a Prima Facie Case?
i. Legal Standard
1. Procedural Standard Detailed procedural provisions lie at the heart of the IDEA. 20 U.S.C. §§ 612 and 615; 34 C.F.R. §§300.300-300.576; Evans v. Rhinebeck Central School District, 930 F. Supp. 83 (S.D.N.Y. 1996); B.E. R.R. v. State Bd. of Educ. 874 F.2d 1036, 1041 (5th Cir. 1989). In order to achieve the goal of providing all children with eligible disabilities with a FAPE, the IDEA statute requires that the states comply with “extensive procedural rights and safeguards” in order to receive federal funds for use in special education programs. See 20 U.S.C. § 615(a); LIH v. New York City Board of Educ., 33 IDELR 1 (E.D.N.Y. 2000); J.G. v. Board of Education of the Rochester City Sch. Dist., 830 F.2d 444, 445 (2d Cir. 1987). In evaluating whether the District has complied with the procedural requirements of the IDEA, I consider whether the alleged procedural violation either 1) impeded the Student’s right to a free and appropriate public education, 2) significantly impeded the Parent’s opportunity to participate in the decision making process regarding the provision of a free and appropriate education, or 3) caused a deprivation of educational benefits. 20 U.S.C. § 1415(f)(3)(E)(ii); see also, Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp.2d 415, 419 (S.D.N.Y. Jan. 9, 2007), Application of a Child with a Disability, Appeal No. 07-007.
2. Substantive Standard IDEA requires an educational program reasonably calculated to enable a child to make progress appropriately considering the child's circumstances. Endrew F. v. Douglas Co. School Dist. Re-1, 137 S. Ct. 988 (2017). This obligation of the District is accompanied by the requirement to demonstrate the appropriateness of the program recommended by its CSE. (Application of a Child Suspected of Having a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Handicapped Child, 22 Ed Dept Rep 487 [1983]). To meet its burden, a board of education must be able to “. . . offer a cogent and responsive explanation for their decisions . . .” Endrew F., Supra.
ii. Analysis
I first look to the Parents’ allegations to determine the scrutiny to apply in evaluating the District’s presentation. The complaint notice was explicit about the following issues:
Upon belief and information, the goals were not developed at the meeting and therefore excluded the parent from meaningful participation in their development. (Ex. A-6).
Upon belief and information, the IEP failed to sufficiently identify the student’s present levels of functional performance and include corresponding goals required to address the student’s identified needs. The IEP failed to adequately describe the student. (Ex. A-6). Many of the goals are inadequate in scope and specificity and therefore immeasurable. (Ex. A-6).
The IEP goals do not all contain evaluative criteria, procedures, or schedules to measure progress. (Ex. A-6).
This is the backdrop in which I weigh the District’s recommendations, ever mindful that the District has the burden of proof. In New York State, “[t]he board of education or trustees of the school district or the state agency responsible for providing education to students with disabilities shall have the burden of proof, including the burden of persuasion and burden of production, in any such impartial hearing …” N.Y. Educ. Law § 4404 (1)(c), modifying the rule enunciated in Schaffer where “[t]he burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief.” Schaffer, 546 U.S. at 537.
The District conceded Prong I to the extent that they did not defend the/any recommended program or placement. L.O. v. N.Y. City Dep't of Educ., 822 F.3d 95, 111 2016 U.S. App. LEXIS 9239. There was no testimony indicating the nature of the CSE deliberations, or even if such deliberations occurred. Rather, I am left to speculate concerning the particulars of the review process, the rationale employed by the CSE members and the discussions that may or may not have contributed to a final recommendation. Further, given the myriad specific substantive allegations against the school, and the complete failure to defend, I find that the District fell short of their burden in this case.
iii. Conclusion
Upon review, I find that the District failed to demonstrate that they met their burden in providing the Student an IEP tailored to meet his individualized needs. I, therefore, rule for the Parents on Prong I.
IV. Prong II
a. Legal Issue: Did the Parents Establish the Appropriateness of the Private School?
i. Legal Standard Having determined that the District failed to provide the student a FAPE in the least restrictive environment (“LRE”) for the 2021-2022 SY, the next inquiry focuses on whether the parent's unilateral placement of the student at the Private School[5] was appropriate. In doing so, I must consider whether the Parents met their burden of proving the appropriateness of the unilateral placement of the Student at the Private School. On Prong II, New York federal courts have held that parental placements are “subject to fewer constraints than that applied to the school authorities.” Schreiber v. E. Ramapo Cent. Sch. Dist., 700 F. Supp 529 [S.D.N.Y. 2010] The Second Circuit has clearly stated: . . . [P]arents 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 v. Arlington Cent. Sch. Dist., 489 F.3d 105 [2d Cir. 2007] quoting Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d Cir. 2006] Moreover, parents "may not be subject to the same mainstreaming requirements as a school board." Frank G. v. Bd. of Ed. of Hyde Park [2d Cir. 2006] quoting M.S. v. Bd. of Ed. of City Sch. Dist. of Yonkers, 231 F.3d 96, 105 [2d Cir. 2000] citing Warren G. v. Cumberland County Sch. Dist., 190 F.3d 80, 84 [3d Cir. 1999] (holding that "the test for the parents' private placement is that it is appropriate, and not that it is perfect").
ii. Analysis
Academic Director at the Residential Program -Testimony The Head of School testified on the Parents behalf and described the program at the Private School: [The Residential Program] is a traditional, non-public school, licensed by the [] and the Division of Non-Public Schools and accredited by []. [The Residential Program] strives to provide a traditional education program that encourages academic, personal, and emotional growth among our students within a residential setting. [The Residential Program] wants to give our students the skills and tools necessary to be successful in all their academic endeavors. We offer 5 terms that are 10 weeks long. (Ex. Q. 2).
The Head of School continues: We offer daily classes, M-Th. Fridays the students go off campus for experiential activities. [The Residential Program] seeks to create curriculum based on the standards of the [] Board of Education to meet the needs of our students and maintains the intent of the [] Department of Public Instruction. The education program has purchased textbooks and educational materials that reflect best education practice. In addition to the traditional program, [The Residential Program] also has a credit recovery program. Our course offerings are supplemented through the use of accredited on-line programs. (Ex. Q. 2). The Head of School noted that the Student required a therapeutic residential program (secure 24/7) in order to access her education and make progress; her diagnosed mental health disabilities regularly interfered in her ability to make academic progress. Due to our unique program we are able to combine therapeutics and academics to support the whole child and focus on the mental health needs first while maintaining [the Student’s] academic standing and progress (Ex. Q.4).
The Head of School continued in her testimony by detailing the ways in which the Student has benefited from the Private School. Specifically, she stated that the Student made significant academic progress with us while at Solstice. She maintained her stellar grades while becoming more grounded in the classroom. [the Student] learned to advocate positively with teachers and other adult staff and maintain healthy and positive relationships with peers while at school. Additionally, [the Student] did make progress in her ability to identify behavioral triggers, but struggled to use appropriate calming strategies when those did occur. (Ex Q. 5).
The Father – Testimony In his testimony, the Father described how his daughter went through numerous hospitalizations and a significant decrease in mental health (Ex. S, 2-4): By late October 2021, we were terrified for [the Student’s] wellbeing and life. [the Student] started running away from home regularly during this period of time. After a three-day absence in October 2021, [the Student] came home and expressed feeling unsafe and said she needed to be hospitalized. Her psychiatrist [] agreed, and we admitted her to [ ] adolescent psychiatric unit. (Ex. S.4). The Father concluded his testimony by stating: It is our absolute and firm belief that if, when we initially requested, [the Student] had received appropriate supports and an official IEP in spring 2021 that some of the above tragic events might have been avoided. We enrolled [the Student] in the [] program and [] to save her life and in the absence of support from her teachers, school and the DOE. (Ex. S. 7).
Primary Therapist at the Residential Program – Testimony
The Primary Therapist states how their job affects the students programming: Supervisors, teachers, and therapists communicate and collaborate in order to meet the needs of the students in a variety of ways. Therapists meet together weekly as a team with the clinical director for a clinical meeting where cases are staffed, in-service trainings are provided, and auditing needs are addressed. Therapists meet with their team teacher/advisor, team residential supervisor, adventure director, and clinical director for a treatment team meeting weekly where residents' academic, clinical, and residential progress and needs are discussed. Supervisors, teachers, and therapists also speak and collaborate on a regular basis as needed throughout the day and week. (Ex. T.2). She continues by describing the students weekdays: the students are engaged in classes; in the evenings they are engaged in a variety of activities depending on the day which may include personal hygiene, chores, doing homework, engaging with peers in games and free time, afterschool clubs, and movement groups. On weekends residents engage in adventure or other outings, community service activities on or off campus, participate in weekend study hall if needed, and practice healthy coping and interpersonal skills in free time and other activities. (Ex. T.2). The Primary Therapist states how the Student:
required a restrictive setting in order to detox from and gain a significant amount of sober time from substances, to begin to learn and implement new skills, and to learn how to connect with peers and adults in a healthy way. The Student’s] underlying negative beliefs and unresolved trauma were risk factors to relapse back into substance abuse and to disengage from healthy relationships. (Ex. T.
3).
The Primary Therapist concludes her testimony be stating: By the end of the 2021-2022 school year, in June of 2022, [the Student] was responding well to the therapeutic support she was receiving, but she was not ready to return to her home environment and into an academic day program. The treatment team observed [the Student] become largely adult-oriented and willing to build healthy relationships, becoming more open to feedback and able to challenge negative beliefs that created emotional distress for her in relationships. And that: In my professional opinion [the Student] was an appropriate student for [ ] and gained a great deal from the program, which enabled her to make meaningful educational gains - academically, socially, and emotionally. (Ex. T.4).
Student Coordinator Wilderness Program – Direct Testimony When questioned about how the Students keep up with schoolwork the Student Coordinator stated that:
for the Students when they enroll, whatever subjects they're enrolled in, those packets will be sent to them in the woods. Normally, by truck, they'll send their supplies out. And they'll drop the packets off with them with instructions in a Ziploc bag for them to review. The staff will go over the curriculum with them.
And then -- yes. So that's how they receive the curriculum. (T. 69).
When questioned about how they make sure the students are keeping up with the course work the Student Coordinator stated:
So I would go out into the field and check in with each student individually who is enrolled in academics. And also, I have a weekly curriculum report that's sent out every week, communicating with the field staff about each student, what progress they've made, what they're enrolled in, what their goals are for the week, to what academic, you know, goal they have for that week to -- to focus on and complete. So that -- I would check in in person and also with the weekly curriculum reports. (T. 70).
(Q): Okay. And could you tell us, from your experience, your impressions of [the Student] when you met her, if you remember, what the time period was, and what your impressions of her were?
(T. 71).
(A): I think it was late February. And she, I think, was the longest standing student in that group.
She has the most experience out of everyone there. She seemed pretty mature, in my opinion, and responsible. Like, the staff were giving her more responsibilities. And she just seemed to be a strong leader for that group at that time. (T. 71)
Student Coordinator Wilderness Program – Cross The District Representative raised some concerns regarding how assistance is provided to the students, and how long the Student was at the Program.
In response the Student Coordinator stated:
She arrived on December 10th, 2021. And then discharged March 10th, 2022. (T.73).
So when they receive the packets, our field staff can go over it with them. The academic piece is, like, 50 to 60 percent related to what they're doing in the field.
So the teachers and the therapists both created the curriculum to, you know, qualify for the credit. So whenever they receive the packet, field staff will go over it with them, final things that they have already done or learned and then, kind of, walk them through the assignments as they come up. They have at least an hour each day to work on those assignments. And then if they have any questions beyond, you know, just a normal 1 question, I could help answer that.
And if I don't have the answer, I would communicate with our teachers. And they would provide feedback. (T.73-74).
iii. Conclusion
In addition to considering the testimony and observations of the Academic Director, Primary Therapist, the Father, and the Student Coordinator, I am mindful of the unique and complicated profile of the Student as outlined above in the “Student History” and is amplified throughout the record. To conclude, I agree with the statements of the experts provided by the Parents.
Thus, I find that the Private School provided educational instruction specially designed to meet the unique needs of the Student. I credit the Parents’ exhibits and witnesses for articulating the appropriateness of the placement in addition to the Student’s progress. The Parents have met their burden by establishing that such services were necessary to permit the Student to benefit from instruction. I, therefore, rule for the Parents for Prong II.
V. Prong III
a. Legal Issue: Did the Parents Cooperate with the District?
i. Legal Standard A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents where equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "Reimbursement merely requires [a district] 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 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148 6). The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85; M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at 7 [S.D.N.Y. Aug. 27, 2010]).
Tuition reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the child from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns
6 § 300.148 Placement of children by parents when FAPE is at issue.
(a) General. This part does not require an LEA to pay for the cost of education, including special education and related services, of a child with a disability at a private school or facility if that agency made FAPE available to the child and the parents elected to place the child in a private school or facility. However, the public agency must include that child in the population whose needs are addressed consistent with §§ 300.131 through 300.144.
(b) Disagreements about FAPE. Disagreements between the parents and a public agency regarding the availability of a program appropriate for the child, and the question of financial reimbursement, are subject to the due process procedures in §§ 300.504 through 300.520.
(c) Reimbursement for private school placement. If the parents of a child with a disability, who previously received special education and related services under the authority of a public agency, enroll the child in a private preschool, elementary school, or secondary school without the consent of or referral by the public agency, a court or a hearing officer may require the agency to reimburse the parents for the cost of that enrollment if the court or hearing officer finds that the agency had not made FAPE available to the child in a timely manner prior to that enrollment and that the private placement is appropriate. A parental placement may be found to be appropriate by a hearing officer or a court even if it does not meet the State standards that apply to education provided by the SEA and LEAs.
(d) Limitation on reimbursement. The cost of reimbursement described in paragraph (c) of this section may be reduced or denied (1) If - (i) At the most recent IEP Team meeting that the parents attended prior to removal of the child from the public school, the parents did not inform the IEP Team that they were rejecting the placement proposed by the public agency to provide FAPE to their child, including stating their concerns and their intent to enroll their child in a private school at public expense; or (ii) At least ten (10) business days (including any holidays that occur on a business day) prior to the removal of the child from the public school, the parents did not give written notice to the public agency of the information described in paragraph (d)(1)(i) of this section;
(2) If, prior to the parents' removal of the child from the public school, the public agency informed the parents, through the notice requirements described in § 300.503(a)(1), of its intent to evaluate the child (including a statement of the purpose of the evaluation that was appropriate and reasonable), but the parents did not make the child available for the evaluation; or (3) Upon a judicial finding of unreasonableness with respect to actions taken by the parents.
(e) Exception. Notwithstanding the notice requirement in paragraph (d)(1) of this section, the cost of reimbursement - (1) Must not be reduced or denied for failure to provide the notice if - (i) The school prevented the parents from providing the notice; (ii) The parents had not received notice, pursuant to § 300.504, of the notice requirement in paragraph (d)(1) of this section; or (iii) Compliance with paragraph (d)(1) of this section would likely result in physical harm to the child; and
(2) May, in the discretion of the court or a hearing officer, not be reduced or denied for failure to provide this notice if -
(i) The parents are not literate or cannot write in English; or (ii) Compliance with paragraph (d)(1) of this section would likely result in serious emotional harm to the child. (Approved by the Office of Management and Budget under control number 1820-0030) (Authority: 20 U.S.C. 1412(a)(10)(C)) and their intent to enroll their child in a private school at public expense." (20 U.S.C. § 612[a][10][C][iii][I]; see 34 C.F.R. § 300.148[d]) This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools." (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004])
ii. Analysis
The Parents sent a ten-day notice letter in a timely manner, expressing their intent to unilaterally place the Student at the Private School for the 2021-2022 SY. In the letter, the Parents informed the District that he would seek funding from the District for the placement. (Ex. F-2)
iii. Conclusion
Upon review of the record, I find that the Parents cooperated with the District and did nothing to impede them from developing an appropriate IEP for the Student. As such, I find no reason for reduction in tuition reimbursement. I, therefore, rule for the Parents in Prong III.
It is therefore ORDERED [7]
For the District to reimburse/direct pay the Parents/Private Schools for the cost of tuition, transportation and related expenses the Wilderness School (Exhibit C), and the Residential Program (Exhibit H) where they unilaterally placed the Student for the 2021-2022 SY.
As well as for the cost of the psychological evaluation. (Exhibit P).
Dated: September 15, 2023
Martin J. Kehoe, III
Impartial Hearing Officer
The parent requests that all funds awarded be paid to the [REDACTED], Inc. Escrow Account, [ R E D A C T E D ] , Esq., escrow agent. All funds paid to the [ R E D A C T E D ] . Escrow Account will be reimbursed to parent or paid to [ R E D A C T E D ] and [ R E D A C T E D ] within ten days as appropriate. This will enable parent to monitor all funds paid to [ R E D A C T E D ] and [REDACTED].
Reimbursement of the costs of transportation and related expenses for the student and her parents to and from the two therapeutic placements during the 2021-2022 school year. 20 USC. §1401(26)(A), 34 C.F.R. §300.34, 8 NYCRR §200.12, Webster Central School District v. New York State Educational Agency, 17-092, 18 LRP 12835, Letter to Anonymous, 213 IDELR 164 (OSEP 1988).
Reimbursement of the costs of the Psychiatric Evaluation completed by [ R E D A C T E D ] , and Psychological Evaluation completed by [ R E D A C T E D ] .
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.
Footnotes
[1] A hearing was held across the following dates: August 1, 2022; October 27, 2022; January 25, 2023; March 3, 2023; May 12, 2023; July 7, 2023; July 14, 2023.
[2] In the letter, the Parents wrote the following: The CSE finally scheduled a CSE meeting for January 28, 2022 and classified [the Student] as a student with an educational classification of Emotional Disturbance. The CSE deferred her case to the CBST for a 12 -month residential school placement. We have been in contact with the staff at Blue the recommendation and notified them of their intent to unilaterally place the Student at the Private The term includes schizophrenia. The term does not apply to students who are socially maladjusted, unless it is determined that they have an emotional disturbance.
[3] 8 NYCRR Part 200.1(zz) (4) Emotional disturbance means a condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree that adversely affects a student’s educational performance: (i) an inability to learn that cannot be explained by intellectual, sensory, or health factors. (ii) an inability to build or maintain satisfactory interpersonal relationships with peers and teachers; (iii) inappropriate types of behavior or feelings under normal circumstances; (iv) a generally pervasive mood of unhappiness or depression; or (v) a tendency to develop physical symptoms or fears associated with personal or school problems.
[4] “Special education” is defined by the IDEA as specially designed instruction, at no cost to parents or guardians, to meet the unique needs of a child with a disability, including (A) instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and (B) instruction in physical education. The term “related services” is defined as transportation, and such developmental, corrective, and other supportive services (including speech pathology and audiology, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, counseling services, including rehabilitation counseling, and medical services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education, and includes the early identification and assessment of disabling conditions in children. 20 U.S.C. § 601(26).
[5] There are actually two Private Schools implicated in this case: The [REDACTED] Program and The Residential Program.
[7] See addendum for specifics Addendum Reimbursement of tuition for [ R E D A C T E D ] f r o m D e c ember 10, 2021, through March 10, 2022, and [ R E D A C T E D ] from March 11, 2022 through June 30, 2022 including reimbursement of monies paid to date and any payments made in the future. 20 USC 1412(a)(10), et. als.