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FINDINGS OF FACT AND DECISION
Case Number: 229256
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. The analytical framework for deciding a reimbursement case is typically called a three-prong analysis. 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).
This case involves a demand for tuition reimbursement for the 2022-2023 extended school year (“ESY”). The Parents filed the complaint notice on July 14, 2022. (Ex. A) I was appointed as the IHO on July 28, 2022. A hearing was held across multiple dates.[1] The Parents introduced exhibits A-N into the record and called two (2) witnesses: the Parent and the School Supervisor at the Private School (“the Supervisor”). The District offered exhibits 1-6, called one (1) witness, the School Social Worker/District Representative (“the Social Worker”), and submitted a closing brief which is included in this record as exhibit IHO #1.
a. Parents’ Position The Parents allege that the District failed to provide the Student a Free Appropriate Public Education (“FAPE”) for the 2022-2023 ESY. Specifically, the Parents claim that the District failed to provide a placement and appropriate program for the Student. As a result, the Parents unilaterally placed the Student at the Private School and are now seeking reimbursement for tuition. (Ex. A-3).
b. District’s Position The District maintains that they provided the Student a FAPE for the 2022-2023 ESY as the Individualized Education Plan (“IEP”) included an appropriate level of understanding about the Student’s special education needs and supports that addressed those needs. (Ex. IHO #1).
c. Background of the Case
On May 31, 2022, a CSE meeting was held to develop an IEP[2] for the Student. (Ex. 1). The Parents sent the District a ten-day notice letter on June 16, 2022, wherein they asserted a program had not yet been forthcoming and notified them of their intent to unilaterally place the Student at the Private School for the 2022-2023 ESY. (Ex. L-2). Finally, on July 14, 2022, the Parents filed the complaint notice. (Ex. A). Finally, on August 11, 2022, the District belatedly sent the Parents a Prior Written Notice (“PWN”) to inform them of their recommended program and placement for the Student. (Ex. 4).
d. Student History The Student was [REDACTED] years old at the start of the 2022-2023 ESY. The Student has been diagnosed with Autism Spectrum Disorder (F84.0). (Ex. K-1). The Student carried a disability classification of Autism.[3] (Ex. 1-1). The Student’s IEP described him as follows:
[The Student] presents with great difficulty when in a social setting. [The Student] struggles to consider whether his behavior is appropriate and how others may feel because of his behavior. Instead, [the Student] will act impulsively to gain peer attention or avoid communicating. He often grabs items from his peers and hit them, for attention. During peer play, adult supervision is needed to make sure [the Student] doesn’t become aggressive. When a peer has a preferred item, [the Student] will steal it. [The Student] will use a baby voice and will babble when in a group setting. He doesn’t initiate peer play and doesn’t engage for longer than 30 seconds. [The Student] often engages in immature play and doesn’t play with a lot of imagination. He does not take turns by waiting appropriately while a partner plays with the toy. [The Student] oversteps boundaries and touches others inappropriately. (Ex. 1-3).
It is with this background that I now turn to the legal considerations of the IDEA.
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:
(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:
The IEP which was developed for [the Student] on April 14, 2021 is inadequate and insufficient to assist him to meet all of his academic, social, and behavioral needs for the 2022-2023 school year. The Student remains in need of his placement in the [the Private School] in the full-time special education classroom to meet all of his academic, social, and behavioral needs. (Ex. A-2). 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 responded by stating that, “[t]he Parents’ allegation is unsupported by the record and contradicted by the documentary and testimonial evidence.” (Ex. IHO #1-3).
The Social Worker, testified on the District’s behalf in support of their position. When asked why the Committee on Special Education (“CSE”) recommended a 12:1+1 for the Student, the Social Worker provided the following response:
This specific student was easily distracted. So any kind of stimulus happening in the classroom would take him away from being able to learn. Hence, a smaller classroom setting was recommended. Also because of the distractibility and difficulty expressing himself and excessive behaviors, it was recommended that he's in a class with two adults in the room. That's why the -- 12:1:1 class was recommended. (T. 45-46).
The Social Worker also defended the related services that were recommended in the Student’s IEP. Regarding the counseling recommendation, she stated that it was to “address the appropriate behaviors or the inappropriate behaviors that were happening in class. He was reported as acting silly, also difficulty communicating with peers as well as teachers.” (T. 46).
Next, regarding the occupational therapy recommendation, the Social Worker noted that “the Student is a sensory child, so part of occupational therapy would address how to deal with all the stimulus in the classroom … part of the occupational therapy would be working on the clarity of his handwriting.” (T. 46). Finally, when asked about the Student’s speech-language therapy, the Social Worker stated that “[the Student] has limited vocabulary, and he has trouble expressing himself. And his reading is not fluent. It’s still choppy. So he needs to work on the fluency in reading.” (T. 46-47).
The Social Worker was asked about the Student’s supplementary aids and services, including the Student’s behavior support paraprofessional, to which she answered:
He had a history of physical aggression towards other peers and teachers once he got overwhelmed and upset. Also, some of the behaviors were unpredictable.
And in order to make sure that he's safe within a school building, a behavioral paraprofessional was recommended. (T. 47).
When asked about how the Student’s management needs were developed at the IEP meeting, the Social Worker responded: They are -- they were taken as a guideline from a document that the school developed since they're the ones who are dealing with him, and then they can really report what is and what is not successful when dealing with [the Student].
(T. 47-48).
On cross examination, the Parents’ attorney asked the Social Worker if she had any interaction with the Student. She testified that she had observed the Student but had never had any direct interaction with him. (T. 48-49).
The Social Worker was asked if the District had created a Behavioral Intervention Plan (“BIP”) for the Student. She indicated that the District used the previous BIP and Applied Behavior Analysis (“ABA”) that was provided to them by the Private School. (T. 58). When asked if she observed any maladaptive behaviors during the observation, the Social Worker responded:
I didn't see any extreme behaviors during my observation. It wasn't adopt -- you know, it wasn't based on anything the parent said because this conduct -- this observation was conducted way before the meeting. But you know, as I said, that's why we rely heavily on the school progress reports because they're with the child day in and day out. And we understand that an observation is another tool for assessment, but we also understand that, you know, while we observe a child may or may not behave the way they normally do. (T. 59-60). The Social Worker’s testimony concluded with some confusion as to how the prior written notice was created. (T. 62-63).
Despite the prima facie rendition of supporting facts by the District, I note that there is only a single psychoeducational evaluation in this record (Ex. K dated 7/4/17) that was conducted relative to early intervention services approximately five (5) years before the operative CSE meeting in this case. (Ex. B. 5/31/22). To the extent that this document purports to be the most valid evidence of the Student’s cognitive, emotional and behavioral profile for educational purposes, it offers a significantly different perspective of the Student than what the Social Worker testified to. (T. 53 – No District evaluation)
For example: The student’s cognitive profile is low average with a full-scale IQ of 86; his adaptive profile from the administration of the Vineland 3 is consistently low; and the CARS@ raw score of 37 which is significant for symptoms of autism. His profile is further complicated by precursor’s to ADHD (Ex. K)
Another point is that the observation of the Student (Ex. 5) and the relevant documentary foundation to the District’s case (Ex. 6) were derived from observations and the program documents from the Private school. (T. 52). The District was not convincing in their attempt to differentiate the recommendation of the Public school from the progress and benefits that the Student was receiving om the Private school in the previous years. (See, Ex. 6)
For example, there was no attempt to explain the plan for the sudden and complete removal of the specific interventions the Private School was utilizing during the 2022-2023 school year were (OTT, NET, desensitization, behavioral momentums, Premack Principle, positive reinforcement (e.g., praises, money, attention, access to favorable activity/toy, and scheduled breaks), teaching replacement behaviors, prompt hierarchy, shaping, task analysis, extinction, and social skills training.) (Ex. N-8 Paragraph 22)
I am also informed by the testimony of the School Supervisor at the Private School where she distinguishes the Private School from the 12:1:1 program recommended by the District. She described the general structure of the classes:
Each class operated by the [Private School] has a corresponding general education class operated by [Private School]. This allows our students, including [the Student], to have opportunities to integrate with his general education peers, including for religious studies, during our social skills program, and during mealtimes. This afforded [the Student] the opportunity to engage and benefit from positive peer models, and to maintain and build his confidence and selfesteem by feeling as though he was part of a general education school and environment.
The integration with general education peers also afforded the [Private School] the ability to see how [the Student] was generalizing the social and behavioral skills and strategies that we were teaching him, both within the classroom and within the social environment, in a controlled manner. (Ex. N-2).
With my review of the record, I am convinced that the substantive education offered by the District was perfunctory at best. This is not a comparison with the Private School but an observation that the rationale for supporting the District recommendation is not aligned with the data source for the recommendation (the Private School). I do credit the presentation of the District for putting on a prima facie3 case but when analyzed through the lens of cross-examination and the presentation of the Parents’ witnesses and documents I find the District fell short of their burden.
Probably, as importantly, there are two glaring procedural violations: 1) The District failed to have an IEP in place before the start of the 2022-20223 SY. There is little question that the Student requires an extended School Year (ESY) program, yet the District did not issue a Prior Written Notice (PWN) until after the start of the SY (Ex. 4 -8/11/2023) and this was significantly after the Parents provided a ten-day notice3 of the Districts failure (Ex. L - 6/16/2022); and
2) The fact that there was no comprehensive evaluation in more than three (3) years. Each violation significantly impeded the Parent’s opportunity to participate in the decision-making process regarding the provision of a free and appropriate education
iii. Conclusion
Upon review, I find that the District failed to demonstrate that they met their burden in providing the Student a FAPE. 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 offer the student a FAPE in the least restrictive environment (“LRE”) for the 2022-2023 ESY, the next inquiry focuses on whether the parent's unilateral placement of the student at the Private School 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
School Supervisor at the Private School (“the Supervisor”) testified on the Parents’ behalf to help demonstrate the appropriateness of the Private School. .The Supervisor mentioned that he personally observed the Student and worked with his teachers in developing his individualized curriculum. (Ex. N-3). Upon his arrival for the 2022-2023 ESY, the Private School conducted an FBA to assess his problem behaviors and their functions. The Supervisor provided some additional insight: With the collaboration of his parent, teachers and providers, [the Private School] generated and implemented an individualized behavior plan for [the Student] and monitored his progress through careful and consistent data collection on [the Program]. This allowed all members of [the Student’s] education team to monitor and update his areas of deficiency and to ensure that he was making progress. (Ex. N.3-4).
The Supervisor continued by describing the Student’s numerous struggles (i.e., poor communication skills, social-emotional and behavior deficits, inability to self-regulate, etc.). (Ex.
N.4-7). He then spoke to the ways in which the Private School addressed the Student’s challenges: For the 2022-2023 school year, [the Student’s] unique needs required his placement in a full-time, highly-structured program, in a classroom with a low student-to-teacher ratio to minimize distractions and to maximize individualized attention. He required a behavior intervention plan to help him maintain appropriate classroom behaviors and to enable him to focus on classroom instruction and tasks. He required social skills training to help him interact with others. [The Student] also required a program with modifications and accommodations in the classroom, and differentiated instruction to help him learn. He needed individualized attention and frequent prompting, redirection, and repetition to initiate, remain focused, and follow through with his assignments. (Ex. N-7).
…
By virtue of being part of a class with a low student-to-teacher ratio, the [the Private School] was able to offer [the Student] a personalized program which was designed to support him in his areas of deficiency and challenge, and to enable him to make academic and functional progress. [The Student] was in a setting where distractions were minimized and staying on task was promoted.
He was redirected, given reminders and prompted by instructors as needed. He had a behavior intervention plan in place which was frequently monitored to help him replace maladaptive behaviors with functionally-equivalent appropriate behaviors. (Ex. N-8).
Among the many strategies utilized for [the Student] during the 2022-2023 school year were OTT, NET, desensitization, behavioral momentums, Premack
Principle, positive reinforcement (e.g., praises, money, attention, access to favorable activity/toy, and scheduled breaks), teaching replacement behaviors, prompt hierarchy, shaping, task analysis, extinction, and social skills training. (Ex. N-8).
The Supervisor concluded his testimony by demonstrating some of the ways in which the Student has displayed signs of progress: The intense and comprehensive supports provided for [the Student] during the 2022-2023 school year enabled him to make meaningful academic and functional progress and he made a considerable amount of progress since he entered the program. With the interventions in place, he has demonstrated significant improvement in his sensory integration, emotional regulation, and organization skills and decreased his tantrum and aggressive behaviors. He made progress in emotional regulation, utilizing strategies such as deep breathing and mindfulness exercises to manage his anger. He was learning to respect others and respond to their needs and can also identify appropriate and inappropriate behavior given minimal prompts. While using modeling as well as positive reinforcement, he has shown improvement in verbalizing what he wants in a healthier manner. With the provided held, he can stay on task for longer periods of time. He became more comfortable with tactile input, leading to increased participation in age-appropriate activities. His decoding skills have improved and he can identify all letter sounds and decode eve words, and shows more ability to recall mastered information. Additionally, he has made progress in organizing his belongings and has demonstrated an improved pencil grasp during writing tasks. (Ex. N-9).
iii. Conclusion
In addition to considering the testimony and observations of the Supervisor, I am mindful of the unique profile of the Student as outlined above in the “Student History” and is amplified throughout the record. To conclude, I agree with the statement of the Supervisor that the Private School was an appropriate placement for the Student during the 2022-2023 ESY.
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 witness 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 5). The burden of proof
5 § 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 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 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 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)) provided in the public schools." (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004])
ii. Analysis
During his testimony, the Parent stated that he sent the District a ten-day notice letter in a timely manner, expressing his intent to unilaterally place the Student at the Private School for the 2022-2023 ESY. (Ex. M-1). In the letter, the Parents informed the District that he would seek funding from the District for the placement. (Ex. L-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
For the District to reimburse/directly pay the Parents/Private School for cost of tuition at the Private School, where they unilaterally placed the Student for the 2022-2023 SY.
Dated: September 15, 2023
Martin J. Kehoe, III
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.
Footnotes
[1] A hearing was held across the following dates: August 31, 2022; December 2, 2022; February 9, 2023; March 17, 2023; April 27, 2023; May 24, 2023; June 6, 2023; and July 18, 2023.
[2] The CSE team recommended the Student be placed in a 12:1+1 special education class. Additionally, the team recommended the following related services: Counseling Services (Individual, 1x40); Occupational Therapy (Individual 2x40); Speech-Language Therapy (Individual, 2x40); and Parent Counseling and Training (4x yearly). (Ex. 1-17).
[3] 8 NYCRR Part 200.1(zz)(1) Autism means a developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before age 3, that adversely affects a student’s educational performance. Other characteristics often associated with autism are engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences. The term does not apply if a student's educational performance is adversely affected primarily because the student has an emotional disturbance as defined in paragraph (4) of this subdivision. A student who manifests the characteristics of autism after age 3 could be diagnosed as having autism if the criteria in this paragraph are otherwise satisfied.
[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).