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CASE NUMBER: 576090 - NYC: 228796
FINDINGS OF FACT AND DECISION
Case Number: 228796
Student’s Name[1] [REDACTED] (“Student”)
Date of Birth: [REDACTED]
School District: [REDACTED]
Hearing Requested by: [REDACTED] (“Parents”)
Request Date/Date Complaint Filed: July 5, 2022
Date(s) of Hearing: September 23, 2022, September 30, 2022, October 27, 2022, December 6, 2022, and December 15, 2022
Actual Record Closed Date: December 19, 2022
Date of Decision: December 31, 2022
Hearing Officer: Lisa S. Rusk, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 23, 2022
For the Student:
[REDACTED], Attorney
For the Department of Education:
[REDACTED], District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 30, 2022
For the Student:
[REDACTED], Attorney
[REDACTED], Parent
[REDACTED], Parent
For the Department of Education:
[REDACTED], District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 27, 2022
For the Student:
[REDACTED], Attorney
[REDACTED], Principal, [REDACTED]
For the Department of Education:
[REDACTED], District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 6, 2022
For the Student:
[REDACTED], Attorney
[REDACTED], Chief Financial Officer, [REDACTED]
For the Department of Education:
[REDACTED], District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 15, 2022
For the Student:
[REDACTED], Attorney
For the Department of Education:
[REDACTED], District Representative
INTRODUCTION AND PROCEDURAL HISTORY
This matter comes before the undersigned Impartial Hearing Officer (“IHO”) by the Parents’ Due Process Complaint (“DPC") dated July 5, 2022 (Ex. P-A)[2]. The DPC alleges the District failed to provide a Free Appropriate Public Education (“FAPE”) to the Student for the 2021-22 school year and seeks tuition reimbursement for the Parents’ unilateral placement of the Student at [REDACTED] (hereinafter referred to as “the private school”). There is no record of a response to the DPC by the District. The undersigned was appointed as impartial hearing officer (“IHO”) on July 20, 2022. The prehearing conference was held on August 8, 2022. A status conference was held on September 8, 2022. Hearing dates were held on September 23, 2022, September 30, 2022, October 27, 2022, December 6, 2022 and December 15, 2022[3]. [REDACTED] represented the Parents and [REDACTED] represented the District.
Parent Exhibits A-E and G-N and District Exhibits 1-4 were entered into evidence on September 23, 2022. Parent Exhibits O-U were entered into evidence on December 6, 2022.
The District did not present any witnesses (T:36-37). Parent [REDACTED], Principal [REDACTED] and Chief Financial Officer [REDACTED] testified on behalf of the Parents. The parties presented oral closing arguments on the record on December 15, 2022.
JURISDICTION
The due process hearing was held, and a decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.
BACKGROUND
The Student is a [REDACTED] year old female who was unilaterally placed at the private school by the Parents for the 2021-22 school year for her tenth grade year. During the ninth grade, the Student attended [REDACTED] at Parents’ expense. The DPC alleges that the Committee on Special Education (“CSE”) failed to provide the Student with a FAPE for the 2021-22 school year requiring her placement in the residential private school for which they seek reimbursement.
ISSUES
The DPC raises numerous procedural and substantive claims. The Parents allege that the District failed to consider the independent evaluations provided by the Parents, failed to conduct its own evaluations and incorrectly classified the student as other health impaired (OHI). The CSE team was not duly constituted and did not have access to reports. The Individualized Education Program’s (“IEP’s”) present levels of performance and goals were insufficient and were not developed at the meeting with the Parents. The CSE did not provide the Parents with information regarding the proposed program. The program is contrary to the recommendations of the Parents’ professionals, the program does not offer adequate or appropriate instruction, the class size is too large, staffing ratio is inappropriate and does not offer enough 1:1 instruction. The CSE did not provide the Student with an appropriate transition plan. The Parents did not receive timely prior written notice (“PWN”) of the placement. The Parents allege that the private school was appropriate, and the Student made progress. Finally, the Parents argue that they cooperated with the District.
Although the District did not respond to the DPC, the District’s representative argued at the hearing that the District’s recommended 12:1 residential placement was appropriate and that the Parents’ placement was too restrictive given the Student’s academic abilities (T:29). The District also argued that the Parents failed to timely share information regarding the Student, and the equities do not weigh in their favor (T:154-55).
The Parents are seeking reimbursement for tuition paid to the private school from September 2021 through June 2022, reimbursement for transportation expenses for the 2021-22 school year to and from the private school and costs for the most recent neuropsychological and psychiatric evaluations.[4]
FINDINGS OF FACT
[REDACTED] (“the Parent”) testified that the Parents first had the Student evaluated when she was almost 6 years old due to teachers reporting that her thinking was disorganized and that she was constantly rocking back and forth in her chair. At that time, she was diagnosed with attention deficit hyperactivity disorder (ADHD) and placed on medication. She was privately reevaluated at age 11, 14 and 16 (T:46-47). Following her ADHD diagnosis, her behaviors became more unmanageable and emotions dysregulated resulting in the subsequent evaluations. Her evaluation at age 11 resulted in a diagnosis of anxiety and recommendation for twice weekly therapy and weekly parent coaching, which lasted for years. Her mental health continued to decline resulting in diagnoses of depression and obsessive compulsive disorder (“OCD”)(T:48-49). She attended a private religious school from age 3 through sixth grade. She attended [REDACTED] for seventh, eighth and ninth grades (T:71). Initially, her emotional state did not affect her academics, and she was able to get through the seventh grade (T:49).
In January of 2020, during eighth grade, the Student struggled with suicidal ideation and school refusal. During the summer after 8th grade, she attended a ten-week program called [REDACTED] which specializes in anxiety, depression and OCD (T:57-58). At the time, the Parents did not advise the District of her participation in this program (T:72). Her emotional decline continued through ninth grade. Her academics suffered, and the head of her then current school recommended in May or June of 2021 that she not attend that school any longer (T:50-51). At the time, the Parents did not advise the District of these struggles (T:72). They were hoping they could address her issues themselves through medication and therapy (T:73). Following ninth grade, the Parents sent the Student to [REDACTED] for 11 weeks between June 6, 2021 and the end of August 2021. The redacted program recommended that she attend a 24-hour residential school upon discharge (T:53).
On or about August 19, 2021, the Parents sent a letter to the District’s CSE requesting a FAPE, included was a signed consent form for initial evaluation dated August 20, 2021(Ex. P-C). The Parents previously had not shared with the District any of the private evaluations they obtained (T:72). The District advised that the earliest time they could schedule a meeting was November (T:55). The Parents provided the District with a private neuropsychological evaluation from [REDACTED], commenced on September 25, 2021 and issued on November 1, 2021 (T:56, Ex. P-D). The Parents also shared with the District all of her prior evaluations commencing when she was 6 years old, as well as a letter from her long-time psychiatrist [REDACTED] who recommended residential placement (T:57; Ex. P-E).
The Student’s psychiatrist advised by letter dated September 24, 2021 of diagnoses of depressive disorder, unspecified, obsessive compulsive disorder, anxiety disorder, unspecified and ADHD-combined (Ex. P-E-1). He stressed the critical importance of placement in a therapeutic residential school (Ex. P-E-2). This recommendation is consistent with the staff at [REDACTED] (Ex. P-G-5).
Pursuant to updated psychological testing, the Student’s full-scale IQ was in the average range composite scores ranging from low average in processing speed to high average in perceptual reasoning (Ex. P-D-7). Academically, her oral language and basic reading composite scores were in the high average range, while her math fluency composite was in the low average range (Ex. P-D-9). Tests of executive functioning demonstrated exceptional weaknesses in motor speed and challenges with shifting and cognitive flexibility (Ex. D-7-10). The neuropsychologist diagnosed the Student with unspecified mood disorder, generalized anxiety disorder, developmental disorder of scholastic skills unspecified (slow processing speed), specific developmental disorder of motor function, ADHD combined, cannabis use, uncomplicated and eating disorder, unspecified, in remission (Ex. P-D-14).
The neuropsychologist recommended continued placement in a therapeutic residential setting to address depression and anxiety, with support for executive functioning and academic supports for inattention and slow processing speeds. She opined that the Student required assistance with constructively identifying triggers to her low/irritable moods and impulsive behaviors, managing strong feelings effectively, learning prosocial skills and developing emotional insight. She also recommended accommodations and modifications to her learning environment (Ex. P-D-16-17).
The CSE convened in November of 2021 and agreed that the Student required a residential placement. The Parent testified that she agreed with the residential placement but thought that the 15:1 class size recommendation was too large (T:60-61)[5]. The classes at the private school were typically around six students (T:69).
The Parents were contacted by [REDACTED] on March 2, 2022, but they did not feel it was an appropriate placement because of its large autistic and male population. She testified that they only offered individual therapy one time per week and did not have family or group therapy (T:62,71, Ex. P-I-1). To add to the situation, the Student developed an eating disorder and [REDACTED] did not have a nutritionist on staff to assist with her disorder (T:62). The Parents advised the District of their concerns by letter, dated March 9, 2022 (T:62; Ex. P-I). The Parents did not receive a response from the District (T:75).
The Parents notified the District of their unilateral placement of the Student at the private school and intent to seek tuition reimbursement by letter, dated November 20, 2021 (Ex. P-B). With the assistance of an educational consultant, the Parents located the private school and placed her there in September of 2021 (T:64). They felt its small class sizes, AP classes, individual therapy twice per week, group therapy and nutritionist for her eating disorder made it the best place for the Student (T:65). She testified, however, that they were open to placement suggestions from the District (T:65-66). The Parent testified that she was very successful academically at the private school (T:66).
The Principal of the private school testified he has held that position for seven years. The private school is a [REDACTED] state-approved school that provides services to students with emotional disabilities in grades seven through twelve and transitioning students age 18 to 23 years old (T:94). The average class size is approximately 7 students. Classes range from 1 to 12 students, except for physical education which can have as many as 16 students (T:95). The Student’s classes typically had 6 to 8 students (T:109). All of the teachers are certified by the [REDACTED] Department of Education (T:96). All teaching assistants must hold a bachelor’s degree. Currently, there are 16 licensed therapists or clinicians on staff for approximately 95 students. All students get individual therapy two times per week for 45 minutes and group therapy one time per week for one hour (T:97). There is a psychiatrist on staff (T:98). The majority of the students at the school are placed their residentially (T:99). The college preparatory curriculum is reviewed and approved by the State of [REDACTED] (T:100).
The Principal testified that he met with the Student periodically throughout the year (T:110). The Student was a good fit at the private school, and she had a similar clinical and academic profile to most of the students. She also fit in socially and made some good initial friendships (T:104-05). He testified that she initially presented with executive functioning difficulties, particularly with initiating and completing tasks. She benefited from the private school’s structure to keep her on task and ensure homework completion (T:105-06). Toward the end of the school year, she was completing tasks with far less intervention, and she was functioning very well academically (T:106-07). She received cognitive behavioral therapy (“CBT”) and made steady progress clinically (T:107,111).
The private school developed a comprehensive services plan which included goals to address class attendance and preparedness, focus and attention, dealing with social conflict, coping skills, complying with rules and expectations and transition skills (Ex. P-J-7-11). She made satisfactory progress on all of her goals, except two objectives related to complying with rules (Ex. P-R-3). Her grades were mostly A’s and B’s (Exs. S, T and U).
The private school’s Chief Financial Officer testified that Parent Exhibit O reflects the total amount of tuition paid by the Parents to the private school and that they are due a refund of certain deposit money (T:137). The total amount paid toward tuition is actually $124,800 (T:142-43; Ex. P-O).
As stated above, the District did not present any witnesses to defend and explain its recommendations. The CSE convened on November 17, 2021. According to the unsigned attendance page, the Parent and three district representatives were present. The District failed to present evidence that the CSE was duly comprised of a special education teacher or a regular education teacher at the expected grade level of the Student (Ex. D-1-30).
The IEP lists the Student’s classification as OHI. Evaluation results were included from the private neuropsychological evaluation (Ex. D-1-1). The CSE reviewed current academic progress reports (Ex. D-1-5-6). The CSE also reviewed the letter from psychiatrist [REDACTED] (Ex. D-1-13). Her physical development was included in the IEP as well (Ex. D-1-13). The assurance checklist includes a social history and physical examination in addition to the neuropsychological and letter from the psychiatrist. No classroom observation is listed (Ex. D-2-1). The PWN lists a classroom observation and vocational assessment, but they are not included in the record (Ex. D-4-2).
The CSE did not recommend behavioral supports or a behavior intervention plan (Ex. D-1-15). They recommended goals for reading comprehension, writing, math and counseling. Counseling was recommended for 2 times per week for 45 minutes individually and 2 times per week for 45 minutes in a group (Ex. D-1-23). The CSE recommended a NYSED approved non-public residential school and counseling with a 12:1:1 classroom. In the interim while a school was to be located, the CSE recommended a 15:1 special class (Ex. D-1-23). No evidence of a final school placement recommendation is included in the record.
CONCLUSIONS OF LAW
A student with a disability must meet one of 13 defined classification categories and require special services and programs. The classification labels most relevant to this Student’s deficits and needs are:
“(4) Emotional disability 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.
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”; and
“(10) Other health-impairment means having limited strength, vitality or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment, that is due to chronic or acute health problems, including but not limited to a heart condition, tuberculosis, rheumatic fever, nephritis, asthma, sickle cell anemia, hemophilia, epilepsy, lead poisoning, leukemia, diabetes, attention deficit disorder or attention deficit hyperactivity disorder or tourette syndrome, which adversely affects a student's educational performance.” The State Review Officer (“SRO”) has held that:
“CSEs are not supposed to rely on the disability category to determine the needs, goals, accommodations, and special education services in a student's IEP. That is the purpose of the evaluation and annual review process, and this is why an evaluation of a student must be sufficiently comprehensive to identify all of the student's special education and related services needs, whether or not commonly linked to the disability category in which the student has been classified (34 CFR 300.304[c][6]; 8 NYCRR 200.4[b][6][ix]). Once a student has been found eligible for special education, the present levels of performance sections of the IEP for each student is where the focus should be placed, not the label that is used when a student meets the criteria for one or more of the disability categories.” (Application of the New York City Department of Education, Appeal No. 19-107).
The IDEA provides that children with disabilities are entitled to a FAPE (20 U.S.C. § 1400 [d][1][A]). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written IEP (34 C.F.R. § 300.13). A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). In order to meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances” Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988 (2017). If a procedural violation has occurred, relief is warranted only if the procedural violation affected the student's right to a FAPE. 8 NYCRR §200.5[4]; J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 (2d Cir. 2000).
In New York State, school districts have the burden of proof, including the burden of persuasion and burden of production in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement or payment for services for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement (NYS Educ. Law § 4404(1)(c)). (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School Dist. Four v. Carter, 510 US 7 [1993]).
In order to meet their burden, the Parents must establish, by a preponderance of the evidence, that the unilateral placement provided “educational instruction specifically designed to meet the unique needs of the student” (Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 [2d. Cir. 2007]. However, the private school placement “need not meet the IDEA definition of a free and appropriate public education” or “state education standards or requirements” (Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d. Cr. 2006]. The private placement need not provide certified special education teachers or an IEP. Parental placements are not subject to the same mainstreaming requirements as a school district placement. The private school placement must be reasonably calculated to enable the child to receive educational benefits, and must be likely to produce progress, not regression.
The standard to apply is whether "[the] unilateral private placement... provides educational instruction specifically designed to meet the unique needs of a handicapped child" Gagliardo, 489 F.3d at 115):
No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. 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).
Finally, equitable factors must weigh in the favor of the parents in order to qualify for an award of tuition reimbursement.
ANALYSIS
The Parents raised several procedural and substantive challenges to the IEP. The District had the burden of defending its recommendations. The Parents alleged that the District incorrectly classified the Student as OHI. Neither party offered testimony regarding the appropriate classification of the Student. The Student has been diagnosed with ADHD, but it is not her ADHD which has led to the recommendation for a therapeutic residential placement and intensive counseling. The staff at the redacted program, her psychiatrist and the neuropsychologist all cite to her longstanding emotional needs requiring the full-time educational placement. She better meets the criteria for an emotional disability under paragraphs (iii) and (iv) of the 8NYCRR 200.1(zz)(4) definition based upon her deficits and needs.
Despite presenting no witnesses or testimony, the District asserted that it offered the Student a FAPE during the 2021-22 school year. Despite agreement that the Student required a residential placement, the record is devoid of credible and convincing evidence that the 2021-22 IEP developed in November of 2021 offered the Student a FAPE based upon the alleged procedural and substantive claims.
The Parents allege that the District failed to consider the independent evaluations provided by the Parents and failed to conduct its own evaluations. The IEP clearly reflects consideration of the Parents’ evaluations and reports. The Parents do not indicate what additional evaluative material is necessary. It is not clear, however, that a classroom observation has been conducted. The District should conduct a classroom observation, if one has not been done already.
The Parents allege that the CSE team was not duly constituted and did not have access to reports. The District failed to demonstrate that the CSE team was duly constituted or had access to reports prior to or during the meeting.
The Parents allege that the IEP’s present levels of performance and goals were insufficient and were not developed at the meeting with the Parents. I find the present levels of performance incorporate the private evaluations and progress reports and clearly reflect the Student’s current functioning levels. However, the District failed to offer proof that the goals met all of the Student’s needs. There are no executive functioning goals and only one counseling goal. The goals do not address all of her special education and social/emotional needs.
The Parents allege that the CSE did not provide them with information regarding the proposed program. The program is contrary to the recommendations of the Parents’ professionals, the program does not offer adequate or appropriate instruction, the class size is too large, staffing ratio is inappropriate and does not offer enough 1:1 instruction. The CSE did not provide the Student with an appropriate transition plan. The Parents did not receive timely prior written notice (“PWN”) of the placement. I agree that the record lacks any evidence of the appropriateness of an actual placement recommendation provided to the Student in a timely manner.
Based upon a thorough review of the testimony and evidence as outlined above, I find that the District failed to meet its burden that it offered the Student a FAPE for the 2021-22 school year. Since the District in this case has failed to demonstrate it offered the Student a FAPE under the First Prong of the Burlington/Carter test, the burden shifts to the Parents to prove that the services provided by the private school are appropriate to meet the Student’s special education needs and that the equities weigh in the Parents’ favor.
It is undisputed that the Student required placement in a residential placement. The District’s argument that the Parents’ private school was too restrictive is unavailing. Classes, although mostly consisting of 6 to 8 students, could contain up to 12 students as recommended by the CSE. The private school selected by the Parents provided certified teachers and licensed clinicians in a program approved by the [REDACTED] State Education Department. It offered individual and group counseling services. The testimony and exhibits set forth evidence of the provision of specific instruction and therapeutic intervention by the private school to meet the Student’s needs. The uncontroverted testimony was that she made progress in the private school program. That progress was commensurate with her functioning levels and needs. I find that the Parents met their burden of proof that the private school offered the Student appropriate special education to meet her individual needs.
The Parents’ claims must also be supported by equitable considerations. In this case, the Parents did not refer the Student to the CSE until August 19, 2021 and consent to her initial evaluation until on or about August 20, 2021. She began her placement at the private school on September 10, 2021. For initial referrals, the CSE shall provide a recommendation to the board who shall arrange for the appropriate special education programs and services within 60 school days of the receipt of consent to evaluate, except that if the recommendation is for placement in an approved private school, the board has an additional 30 school days of the board’s receipt of the recommendation to arrange for placement. (8 NYCRR 200.4[e]). It is clear that the District’s evaluation and placement in a residential program would not be completed by September 10, 2021. The Parents did not share prior information with the District because they were managing the Student’s education privately. At the point where they determined they could use assistance from the District, they were not able to give the District sufficient time to complete the evaluation and placement process.
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 their removal of the student 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 and their intent to enroll their child in a private school at public expense" (20 U.S.C. § 1412[a][10][C][iii][I]; see 34 CFR 300.148[d][1]). 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]). Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision (Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]; see Frank G., 459 F.3d at 376; Voluntown, 226 F.3d at 68).The Parents did not give written formal “ten day notice” until November 20, 2021. Based upon the delay in notice to the District, I find that the Parents’ tuition reimbursement should be reduced by 30%.
Finally, the Parents request reimbursement for travel expenses incurred pursuant to 8 NYCRR 200.12. State regulations authorize expenditures related to suitable transportation of the student "from the student’s home to the school at the commencement of the school year, from the school to the student’s home at the conclusion of the school year, and no more than three additional trips to and from school for students enrolled in a 10-month program,... except as additional trips may need to be provided for the periods during which residential care is not provided to the students attending such school" (8 NYCRR 200.12[a]). The record does not include evidence of additional transportation requirements beyond those set forth in 8 NYCRR 200.12. I find that the Parents are entitled to reimbursement of their transportation expenses related to the Student’s placement at the private school for the 2021-22 school year.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby:
- • ORDERED that the District shall reimburse the Parents for 70 percent of the costs of the Student’s actual tuition paid to the private school for the 2021-22 school year within thirty (30) days of the date of this decision; and
- • IT IS FURTHER ORDERED that the District shall reimburse the Parents for travel expenses incurred by the Parents in accordance with 8 NYCRR 200.12(a) upon receipt of satisfactory proof of payment; and
- • IT IS FURTHER ORDERED that the District shall conduct a classroom observation of the Student within thirty (30) days of the date of this decision if it has not done so already.
SO ORDERED.
DATED: December 31, 2022
Lisa S. Rusk
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.
APPENDIX A – REDACTION IDENTIFICATION PAGE
APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD
PARENT EXHIBITS
EXHIBIT
DATE
DOCUMENT
#PAGES
A 7/5/2022 DUE PROCESS COMPLAINT 10
B 11/20/2021 TEN DAY NOTICE LETTER 1
C 8/19/2021;8/20/2021 LETTER REQUESTING FAPE AND CONSENT TO EVALUATE 3
D 9/2021 TO 10/2021 NEUROPSYCHOLOGICAL EVALUATION 18
E 9/24/2021 LETTER FROM PSYCHIATRST [REDACTED] 2
G 11/17/2021 IEP SIGNATURE PAGE 1
H 9/15/2021 [REDACTED] 5
I 3/9/2022 SCHOOL REJECTION LETTER 2
J 11/2021 [REDACTED] SERVICE PLAN 14
K UNDATED [REDACTED] PROGRAM DESCRIPTION 19
L DECEMBER 21 THROUGH JUNE 2022 SCHEDULE 3
M 9/16/2021 [REDACTED] CONTRACT 4
N 9/29/2021 FINANCIAL AFFIDAVIT 1
O 7/15/2022 FINAL FINACIAL AFFIDAVIT AND ATTENDANCE RECORD 2
P 5/2022 COMPREHENSIVE SERVICE PLAN 3
Q 5/2022 SOCIAL EMOTIONAL PLAN & CLINICAL REPORT 5
R 1/2021 TO 11/2022 ADVISORY REPORT AND LEARNING PROFILE 8
S 2021-2022 TRIMESTER 2 REPORT 1
T 9/9/21 TO 12/17/2021 TRIMESTER 1 REPORT CARD 7
U 1/9/2022 TO 2/23/2022 TRIMESTER 2 REPORT CARD 3 DISTRICT EXHIBITS #
Document Description Date Page Count 1 Individualized Education Program (IEP) 11/17/2021
30
2
Assessment Checklist
11/30/2021
5
3
Assessment Planning
8/29/2021
1
4
Prior Written Notice
11/17/2021
12
Footnotes
[1] Personally identifiable information is attached as Appendix A, “Redaction Identification Page,” to this decision and must be removed prior to public distribution.
[2] Exhibits shall be referred to as follows: “P” for Parents’ Exhibit; “D” for District’s or Department’s Exhibits; and “IHO” for Impartial Hearing Officer’s Exhibits. Exhibits will be followed by the exhibit number and page numbers as needed and appropriate.
[3] A same day cancellation of the November 28, 2022 hearing date occurred as a result of the illness of the Parents’ attorney.
[4] The Parents withdrew their request for payment of the evaluations in their closing statement (T:173).
[5] The IEP recommendation was for a 12:1:1 class (Ex. D-1-23). The 15:1 recommendation was for an interim placement.