Impartial Hearing Decision

In the Matter of the Due Process Hearing

Between

The Parents of [REDACTED] [REDACTED]

And

The [REDACTED] School District

NYSED Case #580748

Pursuant to the Provisions of Article 89 of the Education Law of the State of New York

[REDACTED] [REDACTED] [REDACTED], ESQ.

Impartial Hearing Officer

33 Center Lane

Delmar NY 12054

APPEARANCES:

[REDACTED] [REDACTED] [REDACTED}C.

Attorneys for [REDACTED] Central School District

[REDACTED]

[REDACTED] New York [REDACTED]

[REDACTED] [REDACTED], ESQ., Of Counsel

[REDACTED] [REDACTED], [REDACTED]

Attorneys for Parents

[REDACTED]

[REDACTED] New York [REDACTED]

[REDACTED] [REDACTED], ESQ., Of Counsel

DECISION

JURISDICTION

This proceeding was commenced by [REDACTED] [REDACTED] and [REDACTED] [REDACTED] (hereafter “Parents”, the parents of [REDACTED] [REDACTED] (hereafter “Student”) a student residing within the territorial jurisdiction of the [REDACTED] Central School District (hereafter “District) and a student previously determined to be a student with a disability, by the filing by their attorneys, [REDACTED] [REDACTED] [REDACTED] of a Due Process Complaint Notice, dated September 19, 2022 with the [REDACTED] Central School District,). That Due Process Complaint Notice alleged that District had recommended an inappropriate residential placement and, thus, had failed to offer Student a free, appropriate public education (FAPE) for the 2022--2023 school year (District Exhibit 52) and sought, inter alia, reimbursement for the Parents’ unilateral placement of Student at the [REDACTED] School for the 2022-2023 school year.

In accordance with the Regulations of the Commissioner of Education of the State of New York, the undersigned was appointed as the Impartial Hearing Officer authorized to preside over the above-captioned proceeding on September 20, 2022.

PRELIMINARY PROCEDURES

A Pre-Hearing Conference was held with Counsel on October 26, 2022, at which Hearing Dates were established for January 11, 2023; January 12, 2023; January 17, 2023 and January 18, 2023. However, on the application of Parents’ Counsel, who advised that Parents had withdrawn Student from [REDACTED] and were enrolling Student at the [REDACTED] [REDACTED] School of [REDACTED], [REDACTED], and that Parents would be filing an Amended Due Process Complaint, such established hearing dates were cancelled. Parents did, indeed, file an Amended Due Process Complaint with District on March 2, 2023, which was, on same date. accepted by District.

A Pre-Hearing Conference was conducted with both Counsel on April 4, 2023, at which the hearing dates of May 23, 2023; May 24, 2023; May 30, 2023; May 31; 2023; and June 6, 2023 were scheduled. It was determined that such hearings would be conducted virtually,

THE HEARING

Hearings in the above matter were conducted virtually on

Thursday, May 23, 2023;

Tuesday May 30, 2023;

Wednesday, May 31 2023;

Tuesday, June 6, 2023;

Thursday, June 15, 202 and

Tuesday, July 25, 2023.

.

District was directed, as it bore the burden of proof in establishing its case, to proceed first. In addressing its obligation, District submitted the sworn testimony of five (5) witnesses. They were

[REDACTED] [REDACTED], Ph.D. Academic Administrator for District’s Special Education for its High School Students

[REDACTED] [REDACTED], Ph.D. Assistant Superintendent for Pupil Personnel Services at the [REDACTED] – [REDACTED] Union Free School District [REDACTED] [REDACTED] A School Psychologist Employed by District – Performed a Psychological Re-Evaluation of Student while at [REDACTED] Hall on November 19, 2021

In Rebuttal, District offered the testimony of two witnesses. They were

[REDACTED] A School Psychologist employed by District

Reviewed Student’s Evaluations

[REDACTED] [REDACTED] Director of Special Education for District

In addition to presenting the testimony of the three witnesses described above, District offered fifty-four exhibits into evidence, all of which were received.

Parents submitted, in support of Parents’ case, the testimony of six (6)

witnesses. They were

[REDACTED] [REDACTED] [REDACTED] Father of Student

REDACTED] [REDACTED] Mother of Student

[REDACTED] [REDACTED] Special Education Advocate and

Educational Consultant to Parents

[REDACTED] [REDACTED] Education Supervisor at The [REDACTED] [REDACTED] School [REDACTED] [REDACTED], Ph.D. A Licensed Independent Psychologist – Conducted an evaluation of Student on two separate occasions at the request of Parents.

In Sur-rebuttal, Parents presented the testimony of one witness, who was [REDACTED] [REDACTED], Psy.D. Conducted a review of Student’s

Educational Records

In addition to the witnesses appearing for Parents, Parents offered into evidence twenty-six exhibits into evidence, of which twenty-two were admitted into evidence.

At the conclusion of the hearing, both parties requested the opportunity to submit Post-Hearing Briefs for my consideration. Those requests were granted, so long as such were submitted, after adjustment, no later than September 29, 2023. Both parties submitted such Briefs in a timely manner, and both were read and considered.

The Record Close Date was October 15, 2023.

BACKGROUND

Student is currently [REDACTED] years of age, having been born, with a twin, on [REDACTED]. Student was adopted by Parents at birth. Student began his elementary education at District Schools.

Student has been diagnosed with an Autism Spectrum Disorder (ASD), as well as an Attention Deficit Hyperactivity Disorder (ADHD); an Oppositional Defiant Disorder (ODD); and a Generalized Anxiety Disorder (GAD)

Student appears to have had some success in his early school years. Entering Sixth Grade, Student was placed in District’s Connections program, which specifically addressed the education of children on the Autism Spectrum. While Student apparently was able to access the curriculum in such setting, Student’s behaviors were becoming severe, with verbal outbursts, refusal to comply and avoidance. The remainder of Student’s elementary education continued without substantial change.

Student moved to District’s High School program for Ninth Grade. Student was again placed in District’s Connections program. Behaviors continued. District’s Committee on Special Education (CSE) prepared a Behavior Intervention Plan, but such seems to have had but little effect. I note that in March of thar school year, Student’s program went to virtual learning. In April of that school year, District’s CSE determined to seek an out-of-district Day Treatment placement for Student. In the Fall of 2020, Student was placed at [REDACTED] School, located in [REDACTED], New York.

It appears that Student did fairly well at [REDACTED] during the remainder of the 2020-2021 school year. Student’s placement for the following school year was unchanged. However, Student’s behavior became worse, which appears to have been related to a social failure with a female student. After a number of suspensions, [REDACTED] advised District on October 15, 2021, that it could no longer meet Student’s needs. However, until it was successful in locating an appropriate placement, District determined that Student remain at [REDACTED].

District did, by letter dated November 30, 2021, seek Out-Of-District placements for Student – both Day Treatment and Residential Treatment Placements. By letter dated December 29, 2021, the [REDACTED]-[REDACTED] Union Free School District, one of facilities to which District had written, advised District that it could offer Student a placement at its residential facility. Parents were advised of that fact and, on January 21, 2022, Parent visited the proffered program, touring both the educational component and the residential component of the facility. Thereafter, at a meeting of District’s CSE, held on February 11, 2022, Student’s Individualized Education Program (IEP) was established placing Student at the [REDACTED]-[REDACTED] [REDACTED] program. Parents were in attendance at that meeting and voiced strong opposition to such placement.

Co-incidentally, Parents were seeking an appropriate private school placement for Student. Parents had located and applied to The [REDACTED] [REDACTED] School, located in [REDACTED], for Student’s admittance to its program. Parents were advised, by letter dated April 4, 2022, of Student’s acceptance into its program. Parents, noting that such facility was a New York State Education Department Approved facility, requested that District simply accept such and place Student such School at District expense. However, District declined to do so, noting that it was unable to make any out-of-State-placements until all appropriate New York State placements had been exhausted.

Parents had been advised by The [REDACTED] [REDACTED] School that Parents had to fund Student’s placement at the School before Student could be admitted – something Parents felt they were unable to do.

Failing such, Parents mad application for Student to attend The [REDACTED] School, located in New York State. The [REDACTED] School had offered Parents a Conners’ seat (Connors v. Mills – 34 F.Sup[REDACTED]2d 791) – that is, where Parents could enroll Student without payment so long as Parents would commence a Due Process proceeding to seek prospective reimbursement for such program. Student did, indeed, attend The [REDACTED] School in September of 2022 and Parents commenced the mandated Due Process proceeding against District for the costs of such. However, Parents soon determined that The [REDACTED] School was inappropriate for Student, as its programs were established for higher-functioning children with Autism. Parents thereupon took to seeking ways they could access and secure the money necessary to place Student at The [REDACTED] [REDACTED] School. Having determined it was possible, Parents re-applied to that facility and, by letter date December 12, 2022, were advised of Student’s acceptance into its program. Student began attendance at such facility on January 30, 2023 and completed the 2022-2023 school year.

Parents then filed an Amended Due Process Complaint against District, seeking reimbursement of the costs encountered in their unilateral placement of Student at The [REDACTED] [REDACTED] School for the period from January 2023 to the end of the 2022-2023 school year, asserting that District had denied Student a free, appropriate public education (FAPE) for both the 2021-2022 and 2022-2023 school years.

THE ISSUE

It has been established that Boards of Education may be required to pay for educational services obtained for a child by the child’s Parents, if (1) the services offered by the Board of Education were inadequate or inappropriate; (2) the services selected by the Parents were appropriate and; (3) equitable considerations support the Parent’s claim. Such prerequisites were established by the United States Supreme Court when considering claims for reimbursement brought by parents who had unilaterally placed their disabled child in a private facility. (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); Application of a Child with a Disability, Appeal No. 01-052). Further, it was later held by the same Court that the fact that the facility selected by the parents to provide special education services to the child had not been approved as a school for children with disabilities by the state agency would not be dispositive of a parents’ claim for tuition reimbursement (Florence County School District 4 et al. v. Carter by Carter, 510 U.S. 7 [1993]). The Court noted that parents who unilaterally decide to place their child do so at their own financial risk.

Burden of Proof

Generally, in applying the three-prong standard enunciated by the Supreme Court of the United States in the Burlington and Carter decisions above-cited, it is necessary, in my consideration of the issues presented, that I first determine whether or not the School District offered to the student a free, appropriate public education. The burden of establishing that it did so rests upon the District (N.Y.S. Education Law§4404). Under the guidelines established by Burlington and Carter, should I determine that District offered Student an appropriate educational program, my inquiry into Parents’ request would cease at that point, for if a district has offered an appropriate program, a parent’s right to the requested relief must be denied. Under the same guidelines, if it is determined that District failed to establish the appropriateness of its program, I must then determine the appropriateness of the Parents’ unilaterally selected educational facility. The burden of establishing such appropriateness rests upon Parents (N.Y.S. Education Law §4404). Should Parents fail to establish the appropriateness of the unilaterally selected facility, Parents’ request for relief must be denied. If the unilaterally selected educational facility is determined to be appropriate, I must, because the awarding of any relief is possible only by an invocation of the equitable powers inherent in the proceeding, then review the equities in order to determine whether equitable considerations favor an award of any relief to the Parents.

DISCUSSION

Essential to any determination of an entitlement to reimbursement is whether the agency responsible for a student’s education provided that student with a free, appropriate public education (FAPE). However, exactly what criterion is employed to determine if – or whether – a free, appropriate public education has been provided? It has often been stated that a FAPE is offered to a student when a board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). The mandate that a Board comply with all procedural requirements set forth in IDEA That resulted in courts and reviewing officers concluding the negative – that is, that if all procedural requirements were not fully complied with, it necessarily had to follow that a free, appropriate public education had not been provided. Courts and reviewing officers, as well as the United States Congress itself, were concerned with such outcome. Courts considering that issue therefore ruled that, while school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (A.C. v. Bd. of Educ., 2008 WL 5505470, at *4 [2d Cir. Jan. 16, 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]). Such also resulted in the United States Congress amending IDEA, so as to now require that if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the Parent’s' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]

There have been other judicial, quasi-judicial or regulatory determinations that provide beneficial guidance to my review of the issues presented in this proceeding. The student's recommended program must be provided in the Least Restrictive Environment (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. §§ 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see [REDACTED] v. Newington Bd. of Educ., 2008 WL 4509089, at *7 [2d Cir. Oct. 9, 2008]; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132). A school district may be required 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 also20 U.S.C. § 1412[a][10][C][ii]; 34 C.F.R. § 300.148). The IDEA directs that, in general, an impartial hearing officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). 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). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving Parent’s" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). Most recently, the United States Supreme Court, in deciding Endrew F. v. Douglas City Sch. Dist. 137 S. Ct. 1001; 197 L. Ed 2d 335 (2017), held that the Individuals with Disabilities Act (IDEA) “requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”

PRONG ONE

As has been noted, it is initially the obligation of District to establish that it offered Student a free, appropriate public education (New York State Education Law, §4404)1). That is, was District’s program reasonably calculate to enable Student to make progress appropriate in light of Student’s circumstances.

District ultimately relies in this proceeding on the appropriateness of its’ CSE’s determination, made on February 11, 2022, which placed Student in a residential program at the [REDACTED]-[REDACTED] Union Free School District’s [REDACTED] Program, located in [REDACTED], New York, effective on February 28, 2022, for the remainder of the 2021-2022 school year.

As previously noted, Student had been removed from District facilities in October of 2021 and placed in a program at [REDACTED] Hall, where he remained for the remainder of the 2020-2021 school year. Student continued in such placement at the commencement of the 2021-2022 school year, but after a number of disciplinary events, it was determined that [REDACTED] could not offer Student an appropriate program. However, even after such admission and determination, Student was continued at [REDACTED] until a proper placement could be determined. However, even that arrangement was discontinued, with District providing services to Student at home. Such exacerbated the pressure upon District and its CSE to obtain another placement for Student.

Having send out packets to both Day and Residential programs seeking placement, District ultimately received, on December 29, 2021, a letter from the [REDACTED]-[REDACTED] Union Free School District advising that it could offer Student a placement in its [REDACTED] program, located at [REDACTED], New York, together with a very brief description of its programs (District Exhibit 44). Parents were advised of the offer and, in January, visited the proffered site.

On February 11, 2023, District’s CSE convened. The Committee was composed of [REDACTED] [REDACTED}, Chair; [REDACTED} [REDACTED}, School Psychologist; [REDACTED], Administrator; [REDACTED], Director of Special Education; [REDACTED], Clinician; [REDACTED] Clinician; [REDACTED] Special Education Teacher; [REDACTED] [REDACTED], Additional Parent Member; [REDACTED] [REDACTED], Family Attorney; [REDACTED] [REDACTED], School Attorney; [REDACTED] [REDACTED}, Father; and [REDACTED] [REDACTED], Mother.

The action of the Committee, as reflected in the Individualized Education Program (IEP) (District Exhibit 45) changed Student’s program to Placement in an Approved Private School - Residential and the [REDACTED]-[REDACTED] Union Free School District.as the School. The actions of the Committee were confirmed it the Prior Written Notice of February 15, 2022 (District Exhibit 46), in which it was noted that Student was to begin his new program on February 28, 2022. While neither the IEP nor the Prior Written Notice states the duration of such Residential Placement, I have assumed it to be for the remainder of the 2021-2022 school year – although the Chair of that meeting, Witness [REDACTED] stated that” …our recommendation was going to be to continue for the remainder of the school year through the summer and into the following year. T.R.50)

I find numerous errors in the actions of the Committee which require that such determination and recommendation be considered null and void.

Inexplicitly, the purported Letter of Acceptance from [REDACTED]-[REDACTED], dated December 29, 2021 (District Exhibit 44), while Referencing Student, states

“We are accepting [REDACTED] (sic) for placement in our Residential program at [REDACTED] Academy”

(emphasis is mine).

Also, none of the participants attending the Committee meeting of February 11, 2022 were familiar with the [REDACTED]-[REDACTED] [REDACTED] Program or had ever visited such facility. While there is in the Record testimony regarding the facility and its suitability for Student, such came from personnel who had visited the facility after the meeting and not until the following October.T.R.50).

More importantly, the Regulations of the Commissioner of Education require that:

“if the recommended placement is to be in a school operated by an agency or school other than the school district in which the student would normally attend if the student did not have a disability or if the education of a student residing in a facility operated or supervised by a State department or agency is a responsibility of the school district, the school district must ensure that a representative of that agency or school attends. If the private school or facility representative cannot attend, the school district must use other methods to ensure participation by the private school or facility, including individual or conference calls.”

(8 NYCRR 200.4(d)(4)(i)(a))

Yet, neither Dr. [REDACTED], the Director of Pupil Personnel Services, who appeared in this proceeding on behalf of District, nor any other from the [REDACTED]-[REDACTED] facility, participated in the Committee meeting of February 11, 2022.

Indeed, the ONLY persons in attendance at that Committee meeting who had visited the recommended facility were the Parents of Student – who most vigorously did not agree to the recommended placement!

Additionally, I note that the recommended placement was for a residential setting. Yet, there is nothing in the Record before me that speaks of how the residential aspect of the program would address Student’s needs. Even Dr. [REDACTED] could not respond to inquiries regarding that important portion of District’s recommendation. Again, only Parent had visited and inspected the residential facility in which Student was to be placed – and found such unacceptable.

It is clear that District – having finally gotten a residential placement acceptance and the opportunity to place Student – made a rush to judgment and were to determined to act immediately – even without proper information or deliberation and with little concern for Parents’ opposition to such placement.

It must be noted that my findings and determinations hereafter stated are based upon my finding that District’s CSE failed to properly and appropriately gather and consider all necessary information regarding the proffered placement before making its determination.

It is, therefore, my finding and determination that District’s determination to place Student in the Residential Program at [REDACTED]-[REDACTED] Union Free School District’s[REDACTED] Program for the remainder of the 2021-2022 school year must be – and hereby is annulled and voided.

It is, therefore, my finding and determination in determining Prong One of the Burlington Prerequisites, that District has failed to establish that it offered Student a free appropriate public education for the 2021-2022 school year.

However, there is no Prong Two, as Parents made no unilateral placement of Student in any educational facility during the 2021-2022 school year

THE 2022-2023 SCHOOL YEAR

As previously noted, Parents did enroll Student at The [REDACTED] [REDACTED] School for a portion of the 2022-2023 school year – specifically from January 30, 2023 until the conclusion of the 2022-2023 school year. Parents Amended Due Process Complaint seeks reimbursement for the expenses incurred in such unilateral placement from District.

The law regarding reimbursement for a unilateral placement by Parent from a District has been set out above and will not be repeated. However, it involves the same Prong One, Prong Two and Equitable Considerations as previously outlined herein, except that it deals with the 2022-2023 school year.

However, my review of the evidence in this proceeding is quite different. District’s Committee on Special Education convened a meeting on May 17, 2022 (during the 2021-2022 school year) purportedly for a Program Review. The Committee issued an IEP (District’s Exhibit 49), which, confusedly, notes that Student’s Special Education Program is to consist of Special Classes 6:1+2; that the Agency Responsible is [REDACTED] (page 12); and that Placement is “Student is Parentally Placed in a Non-Public School” (page 1) and that “Parent has unilaterally placed the student at: “Home Schooled and Registered for State Assessment”, all of which is incorrect. The “Decision/Status” portion of the IEP states: “Classified/No Services”. However, the Prior Written Notice emanating from such Committee meeting (District’s Exhibit 50) states the meeting was held to review attendance and determined that Student’s non-attendance was not a direct and substantial manifestation of his disability. It further noted that Student had not attended his “recommended placement” for more than twenty days. However, according to the testimony of Witness [REDACTED] (T.R.51) it was determined that, as Student was above the age of mandatory attendance, ‘”…we disenrolled” him from the District.

Whether Student was properly or effectively “disenrolled” from District, it is my finding and determination that such attempt to disenroll Student so as to be relieved from providing educational services to him during the 2022-2023 school year is just as null and void as District’s original placement. District has offered no proof that it offered any educational Services to Student during the 2022-2023 school year. To the extent that the Committee, at its meeting of February 11, 2022 intended Student’s placement at [REDACTED] [REDACTED] was to extend into the following year, my finding that such recommendation is null and void constitutes my finding that District failed to offer an appropriate program to Student during the 2022-2023 school year.

WAS PARENTS’ UNILTERAL PLACEMENT OF STUDENT AT THE [REDACTED} [REDACTED] SCHOOL FOR A PORTION OF THE 2022-2023 SCHOOL YEAR APPROPRIATE?

Having made the determination that District has failed in its obligation to establish that it offered an appropriate program to Student during the 2022-2023 school year, I must determine if Parents have sustained their obligation to establish that the program in which Parents unilaterally placed Student during a portion of the 2022-2023 school year was appropriate. The standard for evaluating whether Parents meet that burden has been enunciated by the Second Circuit Court of Appeals, both in its decision in Frank G. v. Board of Education of Hyde Park, 459 F,3d 356 (2006) and Gagliardo v. Arlington Central School District, 489 F.3d 105 (2007). In Frank G. v. Hyde Park, the Court basically stated that the appropriateness of a parents’ unilateral placement was to be determined as reasonably calculated to enable the child to receive educational benefit. In the Gagliardo v. Arlington case, the Court went further, noting that:

“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 to 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.”

Parents presented the testimony of [REDACTED] [REDACTED] School Educational Supervisor [REDACTED][REDACTED], who described her duties at the [REDACTED] facility as maintaining communications with families and school districts; coordinating IEP and team meetings; receiving and entering daily reports submitted by Student’s teachers and School personnel, both in its educational and residential programs; and coordinating report cards. I find it most significant that Witness [REDACTED][REDACTED] was able to describe Student’s progress and success from her reading of the daily reports which she daily read and filed, as such described how Student’s day had gone; whether there were any behavior incidents involving Student, as well as all any positive events of note (T.R 354).

Witness [REDACTED] [REDACTED] described [REDACTED] as a small private educational facility with forty-eight residential students of both sexes, as well as twelve Day students. Residential students reside in six separate houses, where they have daily chores. Its academic program runs from 8:00 a.m. to 3:00 [REDACTED] P.M. on all days but Wednesday, when there is an Enrichment Period from 1:00 [REDACTED] to 3:00 P.M. Student’s academic classes contain seven students including Student, which are taught by one teacher and one teacher aide for all subjects but Math, which is taught by a Math Teacher, Art and Physical Education. Student also attends an Automotive Shop class on Wednesdays during his Enrichment Period for two hours, as well as two other days during the week, also for two hours. It was also her testimony that most of the teachers at [REDACTED] are experienced with working with children with autism and staff is offered training sessions regarding autism by the School.

From her review of all Daily Reports filed by his teachers and others, as well as checking in weekly or biweekly with Student’s teachers as to how things are going, Witness [REDACTED][REDACTED] was able to provide her opinion as to Student’s success at [REDACTED]. She reported that Student is doing well. She reported that Student has developed friendships; has followed routines in class; and is finishing all of his work (T.R.364). Witness [REDACTED][REDACTED] also noted that, while there have been occasions where students have become aggressive with peers, Student has not been; that Student has never been suspended from [REDACTED]; that Student has not destroyed property or been physically aggressive.

I also find telling the testimony of Parent, who testified that, although there were a few behavioral incidents when Student first began at [REDACTED], the School walked him through the rules and regulations so that he understood, and that Student thrived in his placement. Parent also noted that staff at [REDACTED], on occasion of parental visits, would praise Student; that Student was going “above and beyond”; earning extra points every day and that Student “was happy”. (T.R.246-247). I note that such is a remarkable change from Student’s performance during his time at District’s schools and at [REDACTED].

I have no hesitancy whatsoever in determining that Parents have more than established that Parents’ unilateral placement of Student at The [REDACTED] [REDACTED] School during a portion of the 2022-2023 school year was appropriate.

EQUITABLE CONSIDERTIONS

The third of the Burlington Prerequisites is whether Equitable Considerations favor an award of reimbursement to Parents. Such is to be gleaned not from any particular act or acts of Parents, but upon a full examination of the Record.

It is my finding and determination that there simply is nothing in the Record before me to indicate that Parents were at any time uncooperative or unwilling to meet with District representatives or in any manner delayed or impeded District or its Committee on Special Education in carrying out its function.

DECISION

It is my finding and determination that the Parents in this proceeding are entitled to receive reimbursement from the [REDACTED] Central School District for the costs incurred in connection with the enrollment of Student in the [REDACTED] [REDACTED] School commencing on January 30, 2023 and continuing until the conclusion of the 2022-2023 school year. I have reviewed the provisions of the Agreement executed by and between the [REDACTED] [REDACTED} Center, Inc, , d/b/a/ [REDACTED] [REDACTED] School and Parents (Parents’ Exhibit U), as well as the paid Invoices submitted by Parents (Parents’ Exhibit V), which confirm an initial payment by Parents to [REDACTED] [REDACTED] School of One Thousand Fifty-Seven and 82/100 ($1,057.82) Dollars and six monthly payments thereafter of Sixteen Thousand Eighty-Seven and 70/100 ($16,087.70), for a the total amount of Ninety-Seven Thousand Five Hundred Eighty-Four and 02/100 ($97,584.02) Dollars

It is, therefore

HEREBY ORDERED

That the [REDACTED] Central School District pay to [REDACTED] [REDACTED] and [REDACTED] [REDACTED], within thirty (30) days of the receipt of this Decision, the sum of Ninety-Seven Thousand Five Hundred Eighty-Four and 02/100 ($97,584.02) Dollars.

Dated: October 26, 2023

Delmar, New York

__________________________________

James P. Walsh, Esq. IHO

NOTICE OF APPEAL

The above constitutes my decision that in accordance with the provisions of Article 89 of the New York State Education Law.

The [REDACTED] Central School District and the Parents of [REDACTED] [REDACTED] have the right to obtain a review of this Decision by the State Review Officer of the State Education Department of the State of New York, in accordance with the provisions of Part 200.5(k) of the Regulation of the Commissioner of Education of the State of New York.

DISTRICT’S EXHIBITS RECEIVED IN EVIDENCE

# #.of Pages Description

2 1 District Response to Due Process Complaint, dated 10-3-22

3 3 2015-2016 Functional Behavior Assessment

4 7 [REDACTED] Psychoeducational Re-Evaluation Report, 1/16

5 12 2017-2018 IEP, dated 4-11-17

6 2 Prior Written Notice, dated 6-2-17

7 1 ` Letter – [REDACTED]on to Parents re: IEP Revision w/o meeting

8 1 Filed IEP Amendment District Request Form, dated 10-27-17

9 13 2017-2018 Amended IEP, dated 10-27-17

10 13 2018-2019 IEP, dated 3-29-18

11 2 Prior Written Notice, dated 5-25-18

12 12 Behavior Intervention Plan – red-lined, dated 12-2018

13 7 Behavior Intervention Plan, dated 12/2018

14 9 Functional Behavior Assessment, dated 12/2018

15 7 Psychoeducational Evaluation, dated 1-3-19

16 12 2018-2019 Amended IEP, dated 1-4-19

17 2 Prior Written Notice, dated 1-28-19

18 14 2019-2020 IEP, dated 2-7-19

19 2 Prior Written Notice, dated 2-22-19

20 14 2019-2020 Amended IEP, date 2-13-20

21 3 Prior Written Notice, date 2-13-20

22` 10 Spring 2020 NYSED career plan – CDOS certificate

23 2 Prior Written Notice, dated 4-2-20

24 14 2019-2020 Amended IEP, dated 3-11-20

25 15 2020-2021 IEP, dated 4-6-20

27 12 Autism Spectrum Disorder Evaluation, dated 7-15-20

28 14 2020-2021 Amended IEP, dated11-9-20

29 2 Prior Written Notice, dated 11-10-20

30 5 CSE Functional Behavior Assessment Update, dated 12/20

31 14 Amended IEP, dated 1-7-21

32 2 Prior Written Notice, dated 1-12-21

33 12 2021-2022 IEP, dated 4-27-21

34 2 Prior Written Notice, dated 6-30-21

35 4 Updated Neuro ..Brief Psychological Eval. dated 10-13-21

36 12 2021-2022 Amended IEP, dated 10-15-21

37 2 Prior Written Notice, dated 10-20-21

38 2 Prior Written Notice, dated 11-12-21

39 12 2021-2022 Amended IEP, dated 11-12-21

40 9 Reevaluation Report, dared 11-19-21

41 13 2121-22 Amended IEP, date 11-23-21

`42 2 Prior Written Notice, dated 11-23-21

43 2 Standard Literary Assessment, dated 12-2021

44 10 [REDACTED}-[REDACTED} Acceptance Letter, dated 12-29-21

45 13 2021-22 Amended IEP, dated 2-11-22

46 2 Prior Written Notice, dated 2-15-22

47 13 2022-2023 IEP, dated 2-28-22

48 2 Prior Written Notice, dated 4-28-22

49 13 2021-22 Amended IEP, dated 5-17-22

50 2 Prior Written Notice, dated 5-17-22

51 1 Director [REDACTED} email to Parent, dated 4-11-22

52 1 CSE Chair [REDACTED} email to Parent, dated 3-8-22

53 15 Amended Due Process Complaint, dated 3-3-23

54 1 Response to Amended Complaint, dated 3-14-23

55 13 2022-2023 IEP, dated 2-28-23

PARENTS’ EXHIBITS RECEIVED IN EVIDENCE

# # of Pages Description

A 7 Occupational Therapy Evaluation, dated 4-14-14

B 12 Psychological Evaluation, dated 11-2017

C 7 [REDACTED]Rejection Letter, dated 8-2020

D 9 Behavior Intervention Plan, dated 11-10-20

E 1 [REDACTED] BOES Rejection Letter, dated 3-23-21

G 1 [REDACTED] School Suspension Letter, dated 8-10-21

H 1 [REDACTED] School Suspension Letter, dated 10-14-21

J 4 [REDACTED] Math Assessment, dated 10-2021

K 1 [REDACTED] High School Transcript

M 1 [REDACTED]’s Education Center Rejection Letter, dated 11-20-21

N 2 Out-of-District Referral Status Letter, dated 11-3021

O 1 Consent for Re-Evaluation, dated 11-30-21

P 1 [REDACTED] School Acceptance Letter, dated 4-4-22

R 1 [REDACTED] School Acceptance Letter, dated 12-12-22

S 2 Ten-Day Notice Letter, dated 2-7-23

T 15 Amended Due Process Complaint, dated 3-2-23

U 6 [REDACTED] Placement Agreement, dated 1-27-23

V 6 Paid Invoices from [REDACTED] School – various dates

X 20 Excerpts from DSM-5

Y 68 Transcript of CSE meeting of 10-20-21

Z 23 Transcript of CSE meeting of 5-17-22

ALSO CONSIDERED

District’s Post-Hearing Brief, dated 9-20-23 30 pages

Parents’ Post-Hearing Brief, dated 9-29-23 22 pages