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CASE NUMBER: 579546 NYC: 231553
FINDINGS OF FACT AND DECISION
Student’s Name: REDACTED
School District: New York City Department of Education Hearing Requested by: Parent Request Date/Date Complaint Filed: September 5, 2022
Date(s) of Hearing: October 7, 2022
October 14, 2022
January 27, 2023
February 9, 2023
March 15, 2023
Actual Record Closed Date: April 14, 2023
Date of Decision: April 17, 2023
Date of Distribution if Different than Decision Date: N/A Hearing Officer: Jean Marie Brescia, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
October 7, 2022
For the Student:
REDACTED, Esq.
For the Department of Education:
None
NAMES AND TITLES OF PERSONS WHO APPEARED
October 14, 2022
For the Student:
REDACTED, Esq.
For the Department of Education:
None
NAMES AND TITLES OF PERSONS WHO APPEARED
November 18, 2022
For the Student:
REDACTED, Esq.
For the Department of Education:
None
NAMES AND TITLES OF PERSONS WHO APPEARED
January 4, 2023
For the Student:
REDACTED, Esq.
For the Department of Education:
REDACTED, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
February 6, 2023
For the Student:
REDACTED, Esq.
For the Department of Education:
REDACTED, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
March 10, 2023
For the Student:
REDACTED, Esq.
For the Department of Education:
REDACTED, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
March 31, 2023
For the Student:
REDACTED, Esq.
REDACTED, Parent Student
REDACTED, Program Director, REDACTED
For the Department of Education:
REDACTED, Esq.
INTRODUCTION AND PROCEDURAL HISTORY
This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parent’s Due Process Complaint (“DPC") filed on or about September 5, 2022. Ex. A.[1] On September 13, 2022, I was appointed by the New York City Department of Education to hear this matter. Parent seeks, for the 2022-2023 school year, the continuation of a preschool placement for REDACTED at REDACTED (“REDACTED”) and the related services set forth in a preschool IEP developed by the Department for REDACTED. Ex. A.
I conducted a prehearing conference on October 7, 2022. Counsel` appeared on behalf of REDACTED’s parent; no one appeared on behalf of the Department. Counsel confirmed that REDACTED’s parent was seeking continuation of the Department recommended preschool program and related services. Counsel requested a pendency hearing. I scheduled the pendency hearing for October 14. On October 14, counsel for REDACTED’s parent appeared; no one appeared on behalf of the Department. A pendency hearing was conducted; Parent’s Exhibits A and B were admitted in evidence; and an Order on Pendency was subsequently issued. The hearing was scheduled for November 18.
On November 18, counsel for REDACTED’s parent appeared; no one appeared on behalf of the Department. Counsel reported that the Department had “approved” the case for settlement, and REDACTED’s parents wished to work with the Department to resolve this matter through settlement rather than litigation. Tr. 23. The hearing was rescheduled to permit the parties time to resolve this matter through settlement.
On January 4, 2023, counsel for both REDACTED’s parent and the Department appeared. Counsel reported that they were working together to settle the case. The hearing was rescheduled to February 6.
On February 6, counsel for both parties appeared. Counsel again reported that they were working together to settle the case. The hearing was rescheduled to March 10.
On March 10, counsel for both parties appeared and reported that the parties had not settled the case. Counsel for the Department presented an opening statement and represented that the Department would not present the testimony of witnesses and rested its case. Tr. 60. Counsel for REDACTED’s parent presented an opening statement. Department Exhibits 1 through 9 and Parent’s Exhibits C through H were admitted in evidence.
On March 31, REDACTED’s father and the Program Director of REDACTED’s school testified. Parent’s Exhibits I through O were admitted in evidence. Counsel for both parties provided closing statements, and the hearing concluded.
The record was closed on April 14, upon the Hearing Officer’s receipt of the transcript of the last day of hearing.
Counsel requested extensions of the compliance date, and written Orders of Extension were issued on October 7 and November 21, 2022 and January 4, February 6, and March 10, 2023. The reasons for granting the extensions are set forth in the Orders.
JURISDICTION
The due process hearing was held, and a decision in this matter is now 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. Part 300, and New York State Education Law § 4404, and its implementing regulations, 8 N.Y.C.R.R. Part 200.
REDACTED’s father consented to the conduct of the hearing via videoconference and the transmission of this written decision via email. Tr. 63-64.
ISSUES
REDACTED’s parent requests funding for tuition and related services costs owed to REDACTED for REDACTED’s enrollment at REDACTED for the 2022-2023 school year. At the hearing, the Department did not defend the special education program that it offered to REDACTED for the 2022-2023 school year. The issues to be resolved are:
1. Was REDACTED an appropriate unilateral parental placement for REDACTED for the 2022-2023 school year?
2. Was the specialized bus transportation obtained by REDACTED’s parents appropriate for REDACTED?
3. Does the balance of the equities favor REDACTED’s parents?
4. Is a finding that REDACTED be provided with a 12-month school year appropriate at this time in the context of this proceeding?
FINDINGS OF FACT
1. REDACTED is a REDACTED-year-old boy who is eligible for special education and services under the IDEA and whose disability, for the purposes of the IDEA, is classified as speech or language impairment. Ex. 1 at 1.
2. REDACTED experiences challenges with comprehension, communication skills, expressive and receptive language, processing verbal information, following directions, maintaining attention (particularly in a group setting), self-regulation, sensory processing, social participation, play skills, visual motor skills, fine and gross motor skills, rigidity, frustration, and pre-academic skills. Exs. 1 at 1-4; 5, 6, 7, 8, 9; I, J, K, L, M at ⁋ 3, N passim.
3. REDACTED is unable to use language to communicate his wants and needs and demonstrates delays across all areas of development. Ex. M at ⁋ 3; Ex. N at ⁋⁋ 11, 16; Tr.
72-73. He presents with “ASD-kind of symptoms.” Tr. 72.
4. REDACTED is a REDACTED-dominant child. Ex. 1 at 2; Ex. 4; Ex. M at ⁋ 2.
5. REDACTED attended a mainstream preschool in a religious school, where he had difficulties attending to classroom activities, following teacher directions, play skills, interacting with peers and adults, and awareness of his environment. Exs. 5, 6; Tr. 68.
6. REDACTED’s parents sought an evaluation from the CSPE, and the evaluation was conducted in February and March of 2021. Exs. 4, 5, 6, 7, 8, 9.
7. The CPSE convened, recommended that REDACTED was eligible to receive special education and services, and placed REDACTED at REDACTED as a preschool student.
Ex. B. REDACTED attended a 9:1:2 bilingual REDACTED class and received the related services of speech and language therapy (three 30-minute sessions per week in REDACTED), occupational therapy (three 30-minute sessions per week), and physical therapy (three 30-minute sessions per week), all in a 12-month program. Ex. B at 1, 11.
8. REDACTED attended REDACTED for the 2021-2022 school year. Ex. M at ⁋ 4; Ex. N at ⁋ 11.
9. REDACTED is a bilingual REDACTED special education program designed to provide individualized programming for children ages three through five years with multiple disabilities and/or REDACTED spectrum disorders or who otherwise experience global developmental delays. Each class is taught by a certified bilingual REDACTED special education teacher and supported by two paraprofessionals. Ex. H; Ex. N at ⁋⁋ 4-8, 14.
10. REDACTED remained in the preschool program for summer 2022 pursuant to his CPSE IEP. Ex. B.
11. The CSE convened a “turning five” IEP meeting for REDACTED on June 14, 2022. Ex.
1. REDACTED’s mother attended the meeting. Ex. 1 at 22.
12. The CSE recommended that, for the 2022-2023 school year (starting in September 2022), REDACTED attend a bilingual REDACTED 12:1:1 class in a community school and receive the following related services: speech and language therapy (two 30-minute sessions per week individually in REDACTED and one session per week in a group of three students in REDACTED ), occupational therapy (three 30-minute sessions per week), and physical therapy (two 30-minute sessions per week). Ex. 1 at 15; Ex. 2.
13. The CSE did not recommend that REDACTED attend a 12-month program. Ex. 1 at 16.
14. At the meeting, REDACTED’s mother and his teacher from REDACTED explained that the 12:1:1 class was too large for REDACTED, that REDACTED needed a 12-month program in order to address is delays, and that REDACTED, due to his developmental delays, was not ready for a school-age program. Ex. M at ⁋ 5.
15. The CSE recommended special transportation accommodations for REDACTED:
transportation from the closest safe curb location to school; an air conditioned bus; and limited time travel. Ex. 1 at 19. 16. After the meeting, REDACTED’s parents received a school placement for REDACTED at P.S. 164. The school did not have a bilingual REDACTED 12:1:1 class. Ex. M at ⁋ 6; Tr. 70. 17. By letter dated August 22, 2022, REDACTED’s mother informed the CSE that the CSE’s recommendations for REDACTED, specifically the 12:1:1 program, were inappropriate for him and that the school proposed by the Department, P.S. 164, did not provide any bilingual REDACTED instruction. She also notified the Department that she would continue REDACTED’s placement at REDACTED and pursue her due process rights to secure this placement and bus transportation. Ex. C. 18. In September 2022, REDACTED continued to attend REDACTED, in a 9:1:2 bilingual REDACTED class, for the 2022-2023 school year. Ex. I; Ex. N at ⁋⁋ 12, 34. 19. In 9:1:2 setting, REDACTED needs (and his teacher provides) much 1:1 direct teacher support in order to learn. Ex. N at ⁋⁋ 22, 26, 34. 20. REDACTED utilizes the DIR Floortime model to address students’ social and emotional development, self-regulation, sensory processing, and engagement with people and learning. Ex. N at ⁋⁋ 8-9. 21. REDACTED staff utilizes DIR Floortime with REDACTED because this methodology focusses on engagement and communication with others in order to learn; REDACTED needs such strategies to address his needs and develop his learning skills. Ex. N at ⁋ 17-18. 22. REDACTED’s schedule at REDACTED includes fine motor centers, breakfast, morning circle, music and movement, play centers, pre-academic and communication skills lessons, gym/outdoor play, instructional lunch, sensory play, language circle, quiet time/independent reading, learning centers (for cognitive, language and fine motor skills), and end of day review. Ex. F; see also Ex. N at ⁋⁋ 18-30. 23. REDACTED benefits from fine motor centers at the start of the school day because these sensory activities assist him in regulating himself to be available for learning during the school day and to integrate with his peers in the group learning setting. Ex. N at ⁋ 18. 24. The program’s focus, throughout the school day, on sensory integration addresses REDACTED’s sensory integration difficulties in order for him to be available for learning. School personnel provide REDACTED with an individualized sensory diet and other sensory work in the classroom as well as during music and movement activities. Tr. 87-88; Ex. N at ⁋⁋ 18, 21, 27. 25. The program provides REDACTED with a “language learning environment” to support the development of his language skills, particularly his expressive language skills. Tr. 88. 26. The program provides REDACTED with social skills support to assist him is socializing with his peers, particularly during lunch and play centers. Tr. 88; Ex. N at ⁋⁋ 19, 22. 27. With respect to reading, REDACTED is taught with a multisensory approach to develop phonemic awareness; REDACTED has increased his engagement in lessons, is understanding the sounds and letters taught to him, and has begun to recognize the initial sounds in words. Ex. N at ⁋ 24. 28. REDACTED participates in language circle/story time to develop literacy and cognitive skills; he has become more attentive to the stories and is able to follow the story and retell the events of a simple story. Ex. N at ⁋ 28. 29. With respect to math, REDACTED is working on basic math concepts, including sequencing, shapes, patterns, counting, and 1:1 correspondence. Ex. N at ⁋ 25. 30. REDACTED provides REDACTED with the related services of speech, occupational and physical therapies. Ex. N at ⁋ 30. 31. In speech, REDACTED works on receptive, expressive, and pragmatic language and improving his conversational skills and ability to follow directions. Ex. N at ⁋ 31. 32. In occupational therapy, REDACTED works on sensory processing, fine motor skills, visual motor skills, motor planning and self-regulation. Ex. N at ⁋ 32. 33. In physical therapy, REDACTED works on postural control, climbing stairs, core muscle strength and coordination. Ex. N at ⁋ 33. 34. REDACTED made progress at REDACTED during the 2022-2023 school year (Tr. 73-74, 90-91; Exs. I, J, K, L; Ex. M at ⁋ 10; Ex. N at ⁋⁋ 18-33, 36): a. Emotional and self-regulation, readiness to learn and greater availability for learning; b. Improved his sensory processing, fine motor skills, visual motor skills and motor planning; c. Improved his ability to attend to instruction for longer periods of time; d. Improved his ability to follow directions; e. Improved play skills and peer interaction skills, by, for example, learning to participate in conversations, engage in group activities and understand the perspectives of others; f. Improved pre-reading skills by learning letters and sounds of letters; g. Improved listening and comprehension skills; h. Improved understanding of basic math concepts; and i. Improved his gross motor skills, including postural control, climbing stairs, core muscle strength, and coordination. 35. When REDACTED returns from school after breaks, he needs time to reacclimate to the classroom routine, additional support for self-regulation, and additional support to engage in social interactions. School staff opined that he needed a 12-month school year to prevent regression. Ex. J, Ex. N at ⁋ 35. 36. REDACTED’s parents signed an enrollment contract for REDACTED’s attendance at REDACTED for the 2022-2023 school year, for the period from September 6, 2022 through June 23, 2023. Ex. D. REDACTED’s parents are obligated to pay the tuition amount of $75,000.00 as set forth in the contract. Ex. D at 1; Ex. E; Ex. M at ⁋⁋ 13-14. 37. REDACTED’s parents also signed monthly contracts for REDACTED’s provision of specialized bus transportation for REDACTED for the 2022-2023 school year. The daily fee under the contract is $150.00, and REDACTED’s parents are obligated to pay these amounts. Ex. D at 3-5; Ex. E; M at ⁋⁋ 13-14; Ex. O. 38. REDACTED has been providing the above-referenced specialized transportation, via minibus, to REDACTED since September 2022. Tr. 76. 39. REDACTED’s parents have not paid the REDACTED tuition or the fees for specialized bus transportation and are financially unable to pay the tuition. Exs. E, G; Ex. M at ⁋ 15.
CONCLUSIONS OF LAW
The central purposes of the IDEA are to ensure: (1) that students with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living and (2) that the rights of students with disabilities and their parents are protected. 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 U.S. 49, 51 (2005); Board of Education v. Rowley, 458 U.S. 176, 179-181 (1982). The first step in the inquiry is to determine whether the school district offered a free appropriate public education to the student. See, e.g., Application of a Child with a Disability, Appeal No. 07-008; Application of a Child with a Disability, Appeal No. 06-121.
A board of education may be required to pay for education services obtained for a child by the child's 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. School Committee of the Town of Burlington v. Department of Education, 471 U.S. 359 (1985). The fact that the school selected by the parents is not approved as a school for children with disabilities by the State Education Department (as in the instant case) is not dispositive of the parents’ claim for tuition reimbursement. Florence County School District
v. Carter, 510 U.S. 7 (1993). A free appropriate public education includes special education and related services designed to meet the student’s individual needs, provided in conformity with a written IEP. See 20 U.S.C. §1401(9); 20 U.S.C. §1414(d). A school district offers a student a free appropriate public education when (1) it complies with the procedural requirements of the IDEA and
(2) the IEP developed by the district is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 137
S. Ct. 988, 999 (2017); see also Rowley, 458 U.S. at 207; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 (2d Cir. 2014); R.E. v. New York City Dep’t of Educ., 694 F.3d 167, 189-90 (2d Cir. 2012). A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” Rowley, 458 U.S. at 203. The school district also must ensure that “[t]o the maximum extent appropriate, children with disabilities are educated with children who are not disabled” that is, in the student’s least restrictive environment. 20 U.S.C. § 1412(a)(5)(A); 8 NYCRR 200.1(cc), 200.6(a)(1); see M.W. ex rel. S.W. v. New York City Dep’t of Educ., 725 F.3d 131,143 (2d Cir. 2013).
The particular educational needs of a student with a disability and the services required to meet the needs must be set forth in a written IEP. Honig v. Doe, 484 U.S. 305, 311 (1988); 20 U.S.C. § 1401(9)(D); see 20 U.S.C. § 1414(d); 34 C.P.R. § 300.320. An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs. 34 C.F.R. 300.320 (a)(1); 8 N.Y.C.R.R. 200.4(d)(2). The CSE then must establish annual goals related to the identified needs of the student and provide for the use of appropriate special education services in the IEP. 8 N.Y.C.R.R. 200.4(d)(2)(iii), (v). The school district must then implement the IEP. 8 N.Y.C.R.R. 200.4(e)(1), (3).
In New York, the school district bears the burden of proof in 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. N.Y. Educ. Law § 4404(1)(c); see R.E., 694 F.3d at 184-85.
In this case, the DOE did not present testimony with respect to its provision of FAPE to REDACTED for the 2022-2023 school year. Since the Department did not offer any testimony to demonstrate that the program it had developed for REDACTED for the 2022-2023 school year was “reasonably calculated” to permit him to make progress given his unique circumstances, the Department did not carry its burden of proof and cannot prevail on the first “prong” of the Burlington/Carter test. Was REDACTED an appropriate placement for REDACTED for the 2022-2023 school year?
REDACTED’s parents bear the burden of proof concerning the appropriateness of REDACTED for REDACTED. See, e.g., Frank G. v. Board of Education of the Hyde Park Central Sch. Dist., 459 F. 3d 356, 364 (2d Cir. 2006), cert. denied, 128 S.Ct. 169 (2007). To meet this burden, REDACTED’s parents must show that the educational services provided at REDACTED addressed REDACTED's identified special education needs. See C.F. v. New York City Dep’t of Educ., 746 F.3d 68, 82 (2d Cir. 2014); C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 837 (2d Cir. 2014); R.E., 694 F.3d at 187; G.B. and L.B. on behalf of N.B. v. Tuxedo Union Free Sch. Dist., 09-CV-859 (S.D.N.Y Sept. 30, 2010); Application of the Bd. of City School District of the City of New York, Appeal No. 95-79, at pp. 6-7; Application of a Child with a Disability, Appeal No. 96-1. The Second Circuit instructs that:
No one factor is necessarily dispositive in determining whether parents’ unilateral placement is “reasonably calculated to enable the child to receive education benefits.” Rowley, 458 U.S. at 207. 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.
Frank G., 459 F. 3d at 364 (emphasis added); also Bd. of Educ. of the Wappingers Cent. Sch. Dist.
v. D.M., 831 F. App’x 29, 78 IDELR 2 (2d Cir. 2020) (Summary Order). Furthermore, as the Second Circuit held in R.E.: “parents may provide evidence that the child made actual progress at their chosen private placement to support the adequacy of that placement.” 694 F.3d at 187 n.3.
The preponderance of the evidence establishes that REDACTED provided REDACTED with an educational environment in which his specific and identified special education needs were addressed. In particular, REDACTED addressed REDACTED’s needs for small classes in which he received 1:1 teacher support, individualized programming, supports and strategies to maintain self-regulation and attention in order for him to be available for learning and to address his sensory processing needs, social skills programming, and the related services that he required in order to address his cognitive, communication, social-emotional, sensory, and self-regulation challenges so he could learn. The record is clear as to the extent of the individualized special education and other supports that REDACTED personnel provided to REDACTED. See paragraphs 19 through 33, above. REDACTED made progress at REDACTED during the 2022-2023 school year. See paragraph 34, above.
The evidence thus demonstrates that REDACTED provided REDACTED with an appropriate special education program. See, e.g., T.K. v. New York City Dep’t of Educ., 810 F.3d 869, 878 (2d Cir. 2016) (unilateral program appropriate when it meets child’s needs and child makes progress); F.B. v. New York City Dep’t of Educ., 132 F. Supp. 3d 522, 555-56 (S.D.N.Y. 2015) (unilateral program appropriate when it provided instruction and related services individualized to child’s needs and which resulted in progress); see also, e.g., Application of a Student with a Disability, Appeal No. 22-002 at pp. 16-19 (prong II burden met when testimony of school witness describes how school’s program addresses student’s individual needs); Application of a Student with a Disability, Appeal No. 21-063 at pp. 14-16 (same); Application of a Student with a Disability, Appeal No. 21-056 at pp. 18-22 (same).
As to the specialized bus transportation, there is no dispute that REDACTED needs the specialized transportation accommodations included in the Department’s IEP for REDACTED.
Considering the “totality of the circumstances” as required by the Second Circuit in Frank G., the evidence supports a finding that the program at REDACTED and the specialized transportation are appropriate for REDACTED for the 2022-2023 school year. As a result, REDACTED’s parent prevails with respect to the second Burlington/Carter criterion. Does the balance of the equities favor REDACTED’ parents?
With respect to the third Burlington criterion, whether equitable considerations support REDACTED’s parent’s claims, the evidence establishes that REDACTED’s parents cooperated with the CSE by attending CPSE and CSE meetings, communicating with Department personnel about their concerns, and providing the requisite statutory notice. See, e.g., R.E., 694 F.3d at 185, 195; M.F. v. New York City Dep’t of Educ., 2013 U.S. Dist. LEXIS 79181 at *34-*35 (S.D.N.Y. June 4, 2013) (“equitable considerations” include parental cooperation with the school district, attending CSE meetings, and providing notice to the school district). “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.” C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 840 (2d Cir. 2014). There is no indication in the record that REDACTED’s parent impeded the Department’s efforts to offer REDACTED a FAPE.
Furthermore, REDACTED’s parents have an obligation under the enrollment and transportation contracts to pay REDACTED’s tuition at REDACTED and for bus transportation for the 2022-2023 school year. A hearing officer may, where the other requirements of Burlington and Carter permit, order prospective payment to a school or provider (rather than reimbursement to a parent) because: (1) such payment is permitted by Connors v. Mills, 34 F. Supp. 2d 795 (N.D.N.Y. 1998); and (2) it would be patently unfair to extend the protections granted by the United States Supreme Court in Burlington and Carter only to those disabled children whose parents happen to have the financial wherewithal to “front” the entire amount of the private school tuition, as in the instant case, and subsequently seek repayment from the school district. See also Ferreira v. New York City Dep’t of Educ., 22 Civ. 4993 (S.D.N.Y. March 14, 2023).
While REDACTED’s parents are financial unable to pay the REDACTED tuition (see paragraph 39, above), there is a recent decision from the Southern District, which is precedent controlling in this matter, holding that proof in inability to pay is not necessary. See Ferreira v. New York City Dep’t of Educ., 22 Civ. 4993 (S.D.N.Y. March 14, 2023). Thus, an analysis and a ruling on REDACTED’s parents’ inability to pay is neither necessary nor appropriate.
Equitable considerations thus favor the award of relief to REDACTED’s parents. As a result, REDACTED’s parents prevail with respect to the third Burlington/Carter criterion. Request for a 12-month School Year
REDACTED’s parents request that I order that the Department provide REDACTED with a 12-month school year. While there is evidence that REDACTED would experience regression without summer services, at this juncture it would not be proper for me to rule in REDACTED’s parents favor with respect to their request for an order for a 12-month school year. The question of the 12-month school year pertains to the 2023-2024 school year. Granting such relief would usurp the CSE’s duty and authority to convene and develop a new IEP for REDACTED for the 2023-2024 school year.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby ORDERED:
1. The Department of Education shall fund REDACTED’s placement at REDACTED for the 2022-2023 school year. The amount of funding for the 2022-2023 school year shall not exceed $75,000.00.
2. The Department of Education shall fund REDACTED’s specialized transportation between his home and REDACTED for the 2022-2023 school year at the daily rate of $150.00.
SO ORDERED.
DATED: April 17, 2023
Jean Marie Brescia, Esq.
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.
DOCUMENTATION ENTERED INTO THE RECORD
DEPARTMENT OF EDUCATION EXHIBITS
# DOCUMENT DESCRIPTION DATE PAGE
1. Individualized Education Program (IEP) 06/14/2022 22 pages DOE
2. Prior Written Notice Package 06/14/2022 4 pages DOE
3. School Location Letter 06/30/2022 5 pages DOE
4. Social History Evaluation 02/23/2021 2 pages DOE
5 Psychological Evaluation 03/11/2021
6 pages DOE
6. Educational Evaluation 2/23/2021 5 pages DOE
7. Occupational Therapy Evaluation 03/03/2021 4 pages DOE
8. Physical Therapy Evaluation 03/04/2021 3 pages DOE
9. Speech Language Evaluation 03/02/2021 5 pages DOE
PARENT’S EXHIBITS
A. Letter Date Name of Document # of Pages DPC 9/6/22 3 pages
B. IEP 5/31/22 17 pages
C. Parent letter 8/22/22 3 pages
D. Contract 22-23 5 pages
E. Payment affidavit 11/20/22 2 pages
F. Schedule 22-23 1 page
G. Federal 1040 form 2020 3 pages
H. Program Description N/A 2 pages
I. School progress report 12/13/22 6 pages
J. Speech therapy report 12/18/22 3 pages
K. Occupational therapy report 12/30/22 3 pages
L. Physical therapy report 11/25/22 2 pages
M. Parent testimony affidavit 3/22/23 4 pages
N. School testimony affidavit 3/22/23 7 pages
O. Transportation addendum agreement 22-23 4 pages
Footnotes
[1] Exhibits shall be referred to as follows: Parent’s exhibits are identified with letters; Department exhibits are identified with numbers; and Impartial Hearing Officer’s Exhibits are labeled as “IHO.”