New York City Department of Education, Impartial Hearing Decision

CASE NUMBER NYC: 230047

FINDINGS OF FACT AND DECISION

Case Number: 230047

Student’s Name1: REDACTED (“Student”)

Date of Birth: REDACTED

Hearing Requested by: REDACTED (“Parent(s)”)

REDACTED

Request Date/Date Complaint Filed: August 24, 2022 Date(s) of Hearing: October 17, 2022

Actual Record Closed Date: November 4, 2022

Date of Decision: November 7, 2022 Hearing Officer: Teril Holston, Esq.

1 Personally identifiable information is attached as Appendix A, “Redaction Identification Page,” to this decision and must be removed prior to public distribution.

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 17, 2022

For the Student:

REDACTED, Esq

REDACTED

For the Department of Education: REDACTED, Esq.

Parent Witnesses: REDACTED REDACTED

INTRODUCTION

This matter comes before the undersigned Hearing Officer at the request of Petitioner, the parent of the student, a REDACTED-year-old school student classified as a student with a disability under the Individuals with Disabilities Education Act (“IDEA”); New York State Education Law; and the New York State regulations.

On August 24, 2022, Petitioner filed a Due Process Compliant (“Complaint” or “DPC”) against the New York City Department of Education (“NYC DOE” or “DOE” or “District”) alleging that the District failed to provide the student with a Free and Appropriate Public Education (“FAPE”) for the 2022-2023 school year, in that the IEP program was not reasonably calculated to confer an educational benefit, and the placement was untimely and inappropriate (P-A)2. The Petitioner is seeking tuition reimbursement/ direct payment for their unilateral placement of the student at Private School, a private program not approved by the Commissioner of Education for the education of students with disabilities for the 2022-2023 school year (Id.). Furthermore, the parent alleges that the equities support their claim for tuition reimbursement for the school year at issue (Id.).

In light of the foregoing and as more fully discussed below, I find that a) the DOE failed to meet its burden that it offered the student FAPE for the 2022-2023 school year, b) the Private School offers the student with specially designed instruction sufficient to meet student’s needs, and c) the equities support the Parents.

PROCEDURAL HISTORY

On August 26, 2022, the undersigned was appointed to conduct an impartial hearing. The parties held a prehearing conference on September 28, 2022.

On October 17, 2022, the virtual impartial hearing on the merits of the DPC commenced and concluded. It was a closed hearing and the record closed on November 4, 2022.

At the hearing, the District’s representative presented documents (Ex. DOE-1 - 2) but did not call any witnesses. The documents were admitted into evidence without objection. The District made a brief opening statement and rested on the documents.

The Parent, through their representative, submitted to documents (Ex. P-A though P-M),3 including the affidavit testimony of the parent, the Private School Director, and Special Education

2 Exhibits shall be referred to as follows: “P” for Parent Exhibit; “DOE” for the District’s or Department’s Exhibits; and “IHO” for the Impartial Hearing Officer’s exhibits.

3 A more detailed list of exhibits is attached.

Teacher, in support of the Parent’s case. All of the documents were admitted into evidence without objection from the District. The Parent rested and the DOE advised that it had no further statement to make or testimony or documents to offer. Both parties waived closing arguments.

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.

FINDINGS OF FACT

After a full review of the record generated at hearing, I make the following findings of fact and determinations3:

The student is a REDACTED-year old classified by the CSE as a student with Autism (DOE-1).

Specifically, the student meets the criteria for Autism Spectrum Disorder with a language impairment but without global intellectual impairment and Developmental Coordination Disorder (P-D). “His presentation would be considered Level 1 (requiring support) for repetitive and restricted patterns of behaviors and Level 2 (requiring substantial support) for social reciprocity and communications (Id.). The student has a full scale IQ score of 69, placing him in the 2nd percentile, with extremely low to borderline in cognitive development and intellectual functioning (P-D).

Despite, significant improvements since his last evaluation in 2019, the student still presented with marked attention and executive functioning challenges (Id.). Given the improvements the student has made at the Private School, the neuropsychologist opined that the student could begin to receive some instruction in a 2:1 setting (Id.).

The student has been attending Private School since January 2022 (P-E). The Private school provides multi-sensory instruction and provides ABA support to meet the student’s academic and social needs (Id.).

The parent signed a contract on April 18, 2022 for Private School for the 2022-2023 school year because there had not been an IEP meeting scheduled, and student was making progress at the Private School, and the parents wanted to ensure there was a school placement at the start of the 12 month school year (P-F; P-K).

An IEP meeting was convened on June 13, 2022 (DOE-1, P-K). The IEP classified the student with Autism and recommended a 6:1+1 class setting in a DOE District 75 school on a 12-month basis (Id.). At the meeting, the parent felt that no other program or methodology seemed to be considered for the student (P-K). The parent disagreed with the IEP ratio and felt that the IEP was largely copied from prior years and did not reflect the student’s needs (Id.).

On June 17, 2022, the parent provided notice of their intention to unilaterally place the student at Private School for the 12-month school year (P-B; P-K). On June 27, 2022, the parent received a school placement notice for Public School, but parent was not permitted to tour the school until July 12, 2022, after the start of the 12-month school year (P-K). During the Public-School tour, parent was informed that the school did not have a classroom for the student’s age group that could implement his IEP (P-K). The parent also observed that the classrooms were loud, related services were provided inappropriate locations. For example, speech therapy is provided in the classroom separated by a curtain (Id.). The parent emailed the District on July 15, 2022 with her concerns and did not receive a response (Id).

For the 2022-2023 12-month school year, although the student was placed in an 8:1+2 classroom, the classroom actually includes the Special Education teacher, two teaching assistants, and three paraprofessionals, with students aged six to nine, allowing the student to have frequent 1:1 support (Transcript, pgs. 10-11). The student also receives Speech 4x30:1, OT 3x30:1, and Counseling 2x30:1, as well as specialized transportation (P-G; P-L). The student has made progress at the Private School (P-H; P-K). The parents have paid $400 of the $112,000 contracted tuition for the 2022-2023 12-month school year (P-K).

CONCLUSIONS OF LAW

The Individuals with Disability Education Act (“IDEA”) establishes that students with disabilities are entitled to a free and appropriate education (“FAPE”).4 A “free appropriate public education consists of educational instruction that is designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child to benefit from the instruction.”5 In order to demonstrate that a FAPE is being provided, the school district must show “that

4 See, 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 US 49 (2005).

5 Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 188 (1982). it complied with the procedural requirements set forth in the IDEA, and that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits.”6 The student's recommended program must also be provided in the least restrictive environment with non-disabled peers.7 The parent seeks tuition reimbursement/ direct funding for the unilateral placement of the student in Private School for the 2022-2023 school year. As set forth in 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 (1985) it is well established that a District may be required to reimburse parents for tuition payment to a private school if the services offered by the District were inadequate or inappropriate, the services selected by the parents were appropriate under the IDEA, and equitable considerations support the parent’s claim for reimbursement. Thus, consideration of such a claim has been expressed by a three-prong test: (1) was student denied FAPE; (2) the appropriateness of the Parent’s unilateral placement; and (3) a balancing of the equities.

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE8. A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction."9 “To meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”10 Further, “an IEP is not a form document” and it should be constructed after carefully evaluating the student.11

An appropriate program begins with an IEP which accurately reflects the results of the 1) student’s present levels of performance; 2) provides for the use of appropriate special education services to address the child's special education needs; 3) establishes annual goals which are related to the child's educational deficits; 4) identifies transitions services; 5) provides a start and end date to the recommended program and services; and 6) criteria and evaluation procedures for the measurement of goals.12

6 See, Application of Child with a Disability, Appeal No. 05-061, quoting, Rowley at 206.

7 See, Walczak v. Florida Union Free Sch. Dt., 142 F.3rd 119 (2nd Cir. 1998).

8 20 U.S.C. § 1415[f][3][E][i].

9 Rowley, 458 U.S. at 203.

10 Endrew F. v. Douglas Cnty. Sch. Dist. RE-1, 137 S. Ct. 988, 999

11 Id.

12 See, Walzczak, supra; Id., Appeal No. 00-005.

Special education services must be provided by the district in conformity with the student's IEP.13 A denial of a FAPE occurs if the district deviates from substantial or significant provisions of the student's IEP in a material way and thereby precludes the student from the opportunity to receive educational benefits.14

However, school districts are not required to "maximize" the potential of students with disabilities15, but must provide "an IEP that is 'likely to produce progress, not regression,' and... affords the student with an opportunity greater than mere 'trivial advancement'"16. The IEP must be "reasonably calculated to provide some 'meaningful' benefit"17.

The burden of persuasion and proof is by the preponderance of the evidence standard, which requires a finding that the existence of a fact is more probable than not. When the evidence is evenly balanced, the party with the burden loses. The burden of proof at an impartial hearing is on the district, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement18. Accordingly, the burden of production and persuasion is on the District for the first and third prongs and on the Parent for the second prong.

ANALYSIS

• • Prong I: FAPE It is asserted in the DPC that the DOE failed to provide the student with a FAPE for the 2022- 2023 school year for a number of reasons. As to Prong I of the Burlington/Carter standard, the DOE failed to meet its burden. While the District submitted the June 2022 IEP (DOE-1) and Prior written notice (DOE-2) into the record, a review of same offers no explanation as to how the CSE made its recommendation, how the IEP appropriately describes the Student, whether the IEP is meaningfully calculated to confer educational benefit, or whether the school identified by the District met the student’s needs. Per the hearing record, the parent expressed disagreement with the CSE 13 20 U.S.C. § 1401[9][D]; 34 CFR 300.17[d]; 20 U.S.C. § 1414[d]; 34 CFR 300.320.

14 T.L. v. New York City Dep't of Educ., 2012 WL 1107652, *14 [E.D.N.Y. Mar. 30, 2012]; D.D-S. v. Southold Union Free Sch. Dist., 2011 WL 3919040, at *13 [E.D.N.Y. Sept. 2, 2011]; A.L. v. New York City Dep't of Educ., 812 F. Supp. 2d 492, 503 [S.D.N.Y. 2011]; A.P. v. Woodstock Bd. of Educ., 370 Fed. App'x 202, 205, 2010 WL 1049297 [2d Cir. Mar. 23, 2010]; Van Duyn v. Baker Sch. Dist. 5J, 502 F.3d 811, 821-22 [9th Cir. 2007]; Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 [5th Cir. 2000].

15 Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir.

1998], at 132.

16 Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130.

17 Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192.

18 Educ. Law § 4404[1][c]; see R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 [2d Cir. 2012]. recommendation during the IEP meeting and immediately thereafter via a Ten-Day Notice. In short, the District declined to “offer a cogent and responsive explanation for their decisions” in creating that IEP, and it is “through the IEP that “[t]he ‘free appropriate public education’ required by the Act is tailored to the unique needs of” a particular child”. Endrew F., 137 S.Ct. at 1002. The District failed to provide any defense of the program recommended for the student. Therefore, the undersigned is constrained to find that the District failed to offer the student a FAPE for the 2022-2023 school year.

• • Unilateral Placement In this case, as the District did not offer the student a FAPE for the 2022-2023 school year, the next issue to determine is whether the Parent’s unilateral placement of the student at Private School was appropriate. The Parent argues that the Private School is an appropriate unilateral placement for the student as it provides instruction and services that are specifically designed to meet the student’s unique needs and that enable the student to make meaningful progress there. For the reasons below, the Parent’s unilateral placement was appropriate.

Parents need not show that the placement provides every special service necessary to maximize the student's potential.19 When determining whether the parents' unilateral placement is appropriate, that placement must be “reasonably calculated to enable the child to receive educational benefits.”20 A private placement is only appropriate if it provides education instruction specially designed to meet the unique needs of a student.21

A private school placement must be “proper under the Act”22, i.e., the private school must provide an educational program which meets the student's special education needs.23 A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement.24 The private school need not employ certified special education teachers or have its own IEP for the student.25 The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement:

19. Frank G. v Bd. of Educ., 459 F.3d 356, 364-65 (2d Cir. 2006)

20 Id.; see Gagliardo, 489 F.3d at 115.

21 20 U.S.C. § 1401[29]; 34 CFR 300.39[a][1]; Educ. Law § 4401[1]; 8 NYCRR 200.1[ww]; Rowley, 458 U.S. at 188-89.

22 Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370

23 See, Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129.

24 Carter, 510 U.S. at 14

25 Id.

“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.”26

Moreover, where the District failed to provide the student with a FAPE, the District is precluded from arguing that the testing, evaluations, or assessments introduced by the Parent’s and utilized by the unilateral placement are not sufficiently comprehensive evaluations of the student’s functioning levels and needs, as it is the District that retains the requirement to comprehensively evaluate the student.27

• • Student Needs In this case, the Parent submitted a detailed neuropsychological evaluation (P-D) and testimony of the student’s Special Education teacher (P-L), detailing the student’s needs, as noted above. The student needs constant 1:1 adult supervision, assistance, and instruction. The student requires frequent redirection to stay on task (P-L). The student is easily overwhelmed in large or chaotic environments (Id.). The student also benefits from interaction with similarly situated peers and continues to struggle with expressive and receptive language (Id.).
• • Program The Private School provides 12 month 1:1 intensive programming for children with special needs with a goal of preparing students for a less restrictive setting (P-J). The student was placed in a 26 Gagliardi, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65.

27 see 34 CFR 300.305[c]; 8 NYCRR 200.4[b][5][iii]; A.D. v. Bd. of Educ., 690 F. Supp. 2d 193, 208 [S.D.N.Y. 2010]

[finding that a unilateral placement was appropriate even where the private school reports were alleged by the district to be incomplete or inaccurate and finding that the fault for such inaccuracy or incomplete assessment of the student's needs lies with the district]; see also Application of the Dep't of Educ., Appeal No. 21-194; Application of the Dep't of Educ., Appeal No. 20-131; Application of the Dep't of Educ., Appeal No. 18-125; Application of a Student with a Disability, Appeal No. 180-049; Application of a Student with a Disability, Appeal No. 15-076; Application of a Student Suspected of Having a Disability, Appeal No. 15-038; 17 Application of a Student with a Disability, Appeal No. 14-033; Application of a Student with a Disability, Appeal No. 14-028; Application of a Student Suspected of Having a Disability, Appeal No. 14-003; Application of the Dep't of Educ., Appeal No. 13-198; Application of the Dep't of Educ., Appeal No. 13-072; Application of a Student with a Disability, Appeal No. 12-027 class with similar aged students, supervised by a Board-Certified Behavior Analyst (“BCBA”) and led by a certified Special Education Teacher, two teaching assistants, and three paraprofessionals. A few weeks into the school year, the school conducted assessments of the student to be used in developing an education plan and goals (P-J; see generally Transcript). In addition to 1:1 instruction in core subjects, the student also receives related services. The Private School is equipped to address sensory needs of the students, containing LED lighting, sensory tiles on the wall, soundproof classrooms, sensory gym, smartboards, and iPad (P-L). Further, the school remains in constant contact with the student’s parents.

• • Progress With respect to the student’s progress at Private School, a finding of progress is not required for a determination that a student's unilateral placement is adequate, but it is a relevant factor to be considered.28 However, here the Private School progress reports and affidavit testimony of the student’s special education teacher and parent, detail the progress student has made at the Private School in his daily functioning and academics (See generally, P-D; P-E, P-G; P-H, P-J; P-K, and P-L).

Based on all of the above, the parent has met the burden that the Private School is an appropriate placement for the student for the 2022-2023 school year as required.

The weight of the evidence demonstrates that the student’s individual special education needs were addressed by the Private School and that the instruction offered was "reasonably calculated to enable the child to receive educational benefits."29 Of note, the District offered no valid arguments concerning the appropriateness of Parent’s unilateral placement, nor challenged the equities in this action. Further, the District had the opportunity to cross-examine the Parent’s witnesses and did not object to any evidence entered into the record. Under these circumstances, I find that the Parent’s witnesses and documentary evidence are credible.

• • Equitable Considerations Equitable considerations are relevant in determining relief “because the authority to grant reimbursement [under the IDEA] is discretionary.”30 “With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with 28 Gagliardo, 489 F.3d at 115, citing Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21, 26-27 (1st Cir. 2002)

29 Frank G., 459 F.3d at 364.

30 Frank G., 459 F.3d at 363-64 (quoting, Burlington, 471 U.S. at 374). respect to the actions taken by the parents (20 U.S.C. § 1412 [a][10][C][iii]; 34 CFR 300.148[d]; E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014] [identifying factors relevant to equitable considerations, including whether the withdrawal of the student from public school was justified, whether the parent provided adequate notice, whether the amount of the private school tuition was reasonable, possible scholarships or other financial aid from the private school, and any fraud or collusion on the part of the parent or private school]; C.L., 744 F.3d at 840 [noting that "[i]important to the equitable consideration is whether the parents obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA"]).

Reimbursement may also 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 10 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."31 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."32 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.33 Parents of students enrolled in private school are not exempted from 10-day notice requirements.34 The Second Circuit has recently reiterated that "[t]he ten-day notice requirement gives school districts an opportunity to discuss with parents their objections to the IEP and to offer changes to the IEP designed to address those objections—all before the parents enroll their child in a private school and file a due process complaint" and that "if parents unreasonably reject the school district's proposed changes to the IEP, or are otherwise uncooperative, courts and hearing officers are fully empowered to deny them reimbursement"35

31 20 U.S.C. § 14129(a)(10)(C)(iii)(I); see 34 CFR 300.148(d)(1)

32 Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 (1st Cir. 2004).

33 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).

34 S.W. v New York City Dep't of Educ., 646 F. Supp. 2d 346, 361-63 (S.D.N.Y. 2009).

35 Bd. of Educ. of Yorktown Cent. Sch. Dist. v C.S., 990 F.3d 152, 171 (2d Cir. 2021).

However, the hearing officer must excuse the failure to provide timely notice if, in her discretion, she determines that the reason for the lack of timely notice is that the school district prevented the parents from providing the notice, the parents had not received the procedural safeguards notice advising of the requirement to provide notice, or compliance with the notice requirement would likely result in physical harm to the student.36 In the instant case, the parent provided the necessary Ten-Days’ Notice of their concerns with the District’s offer of a FAPE for the student for the 2022-2023 school year on June 17, 2022, after expressing her concerns during the IEP meeting and visiting the Public School (P-B; P-K; P-M).

Therein, the parent detailed her specific concerns with the recommendations and provide notice of their intention to unilaterally place the student (P-B). The District did not respond until after the 12-month school year began (P-C).

By way of relief, Parent seeks direct funding to the Private School. The record establishes that Parent incurred an obligation to pay the Private School and specialized transportation (P-F; P-K).

Direct tuition funding is relief encompassed by the equitable remedial powers inherent in IDEA. See e.g. Mr. and Mrs. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 406 (S.D.N.Y. 2011) (parents may seek direct funding in the instance in which, “due to a lack of financial resources, [parents of a student with a disability] have not made tuition payments but are legally obligated to do so”). I find that the unilateral tuition costs exceed the Parent’s income (P-F; P-I; P-K). Equity demands that the DOE fund Student’s Private School tuition in this instance.

In balancing the equities, I find in favor of the Parent. To the extent possible, the Parent has participated in all aspects of the special education process. I find no issue with the reasonableness of the costs, including tuition, associated with the Private School and the Student is enrolled for the 2022-2023 school year.

CONCLUSION

Based on a review of the record and the findings mentioned above, the undersigned makes the following findings:

• • The District failed to provide the student with a FAPE during the 2022-2023 school year.
• • The parent’s unilateral placement at Private School was appropriate and equitable considerations support an award of full tuition reimbursement and direct funding for the 2022-2023 school year.

36 See 20 U.S.C. § 1412(a)(10)(C)(iv); 34 C.F.R. § 300.148(e)(1)

• • The undersigned has reviewed the parent’s remaining contentions and find them to be either unnecessary to this decision, without merit, beyond my jurisdiction, too vague to be of use, or without sufficient basis in the record for a finding and award of relief. Accordingly, any relief not specifically discussed in this decision is denied, and all the Parent’s remaining claims not discussed herein are dismissed with prejudice.

ORDER

Based upon the above Findings of Fact and Conclusions of Law,

• • IT IS HEREBY, ORDERED, that the New York City Department of Education shall directly pay Private School the balance for all tuition and fees for the student’s unilateral placement at Private School for the 2022-2023 school year in amount not to exceed $111,600 within 25 calendar days of this Order. For the purposes of this Order, I find the evidence submitted in Petitioner’s Exhibit F to be adequate proof of balance owed entitling Petitioner to immediate reimbursement. Furthermore, I find that the District has already been provided with adequate proof via this proceeding and so the District shall directly pay the Private School within 25 calendar days from the date of this decision without any action on the part of Petitioner.
• • IT IS HEREBY, ORDERED, that the New York City Department of Education shall reimburse the parents for all tuition paid to Private School for the 2022-2023 school year, in an amount not to exceed $400, within 25 calendar days of receiving proof of payment.

DATED: SO, ORDERED

11/7/2022 /s/ Teril Holston

Teril Holston, Esq., IHO

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.

IMPARTIAL HEARING OFFICER'S CERTIFICATION OF THE RECORD

I, Teril Holston, Impartial Hearing Officer in this matter, do hereby certify that the below Index of Exhibits included within this Findings of Fact and Decision itemizes the entire record before me. I further certify that the materials included in the record are either the original or a true copy of the original materials that were provided to me in this matter.

DATED: CERTIFIED BY

11/7/2022 /s/ Teril Holston

Teril Holston, Esq., IHO

APPENDIX A – REDACTION IDENTIFICATION PAGE

REDACTED

APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD

PARENT EXHIBITS

Exhibit

Document

Date

Pages

A Due Process Impartial Hearing Request 8/24/22 8

B Ten-Day Notice 6/14/22 3

C Ten-Day Notice Response 7/7/22 1

D Neuropsychological and Educational Evaluation Report 9/23,24,30/21 20

E REDACTED Quarterly Report of Progress 2/22-6/22 11

F REDACTED Enrollment Contract 4/18/22 8

G REDACTED Schedule 2022-2023 3

H REDACTED Quarterly Report of Progress 7/22-8/22 15

I

U.S. Individual Tax Return – Form 1040

2021

4

J Affidavit in Lieu of Direct Testimony – REDACTED 10/6/22 4

K Affidavit in Lieu of Direct Testimony – REDACTED 10/7/22 6

L Affidavit in Lieu of Direct Testimony – REDACTED undated 6

M Email Exchange – DOE and Parent 6/27/22; 7/15/22 3 DOE’S EXHIBITS

Exhibit

Document

Date

Pages

1

Individualized Education Plan

6/13/2022

34

2

Prior Written Notice Package

6/27/2022

6