Skip to main content
Special Education Law
DECISIONParent PrevailedIHO Case No. 233351

New York City Department of Education, Impartial Hearing Decision

December 8, 2022·Randy Glasser·New York City Department of Education (“DOE” or the “District”)

NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.

CASE NUMBER: 581496 - NYC: 233351

FINDINGS OF FACT AND DECISION

Student’s Name: REDACTED (“Student”)

Date of Birth: REDACTED

District: New York City Department of Education (“DOE” or the “District”)

Hearing Requested by: REDACTED, Esq., of REDACTED, on behalf of REDACTED and REDACTED (the “Parents”) and the Student

Record Close Date: December 8, 2022

Hearing Officer: Randy Glasser, Esq

On September 6 2022, REDACTED, Esq., of the Law Office of REDACTED, filed a due process complaint (“DPC”) on behalf of the Parents and their child, the Student, regarding her special education program and services for the 2022/2023 school year (Parent Ex. “A”). This Hearing Officer was appointed as the Impartial Hearing Officer (“IHO”) on September 28, 2022, after the appointment of the previous Hearing Officer for this case was rescinded. A pendency hearing was held on October 6, 2022, and a Hearing went forward on November 17, 2022. Consultant Hearing Representative, REDACTED, appeared for the District, while the Parents and Student were represented by REDACTED, Esq.

The District did not put on a direct case or submit any documents into evidence, while the Parents submitted into evidence Exhibits “A” through “Q” (Tr. 24-25, 35, 126). Lists of the appearances and documentary evidence submitted in this proceeding are appended to this Decision. The compliance date for this matter was extended to December 20, 2022 (IHO Ex. “I”).

BACKGROUND AND POSITIONS OF THE PARTIES

The Student is REDACTED years old, classified as a student with a Speech or Language Impairment, and according to the Supplemental Neuropsychological Evaluation dated February 24, 2021 (“Neuropsychological Evaluation”), is diagnosed with a Speech Sound Disorder/Phonological Disorder, Language Disorder, Specific Learning Disorder in Reading and a Specific Learning Disorder Written Expression, while her visual-spatial perception, organizational and reasoning skills are age appropriate, she has a relative weakness in visual-motor integration and graphomotor precision, her language based skills are inconsistent, she has age appropriate attention and executive functioning skills, and she struggles in reading while her math skills are appropriate for her age and grade (Parent Ex. “H”).

The Student’s Individualized Education Program (“IEP”) dated June 1, 2022, for the 2022/2023 school year recommends the following ten (10) month special education program and services: Integrated co-teaching for Math, English Language Arts, Social Studies and Science, each five (5) times per week, one (1) period per session, along with individual speech language therapy one (1) time per week, thirty (30) minutes per session and speech therapy in a group of up to two (2) students, one (1) time per week, thirty (30) minutes per session (Parent Ex. “F”).

The Parents allege the District failed to provide a free and appropriate public education to the Student for the 2022/2023 school year because of the following:

  • • The District failed to consider appropriate evaluative data when developing the Student’s IEP at the CSE meeting held on June 1, 2022; e.g., REDACTED’s Supplemental Neuropsychological Evaluation dated February 24, 2021, REDACTED’ speech language and assistive technology evaluations both dated August 26 2021, and REDACTED Occupational Therapy evaluation; and
  • • The recommended Integrated Co-Teaching Placement by the CSE at the meeting held on June 1, 2022 could not meet the Student’s learning needs; and
  • • The District failed to appropriately address the Student’s academic needs in that it failed to develop an educational program that could allow the Student to make meaningful progress in academic areas and academic IEP goals that could allow for progress in that they are vague immeasurable, inappropriate, contain multiple components, and are not specifically tailored to allow for progress; and
  • • The District failed to develop appropriate levels of performance that address how the Student’s disability affects her involvement and progress in the general curriculum, and how the Student’s disability manifest and/or impacts her; the District failed to provide an appropriate and detailed description of the Student’s needs and abilities in all areas, and to provide adequate baseline through which progress could be measured, and the present levels of performance lack appropriate evaluative data and standardized assessments necessary to understand the Student’s needs and abilities; and
  • • The District failed to appropriately classify the Student in that they changed her classification from Learning Disability to Speech or Language Impairment without data necessitating the change; and
  • • The District failed to recommend appropriate related services, e.g., an appropriate language program, and any occupational therapy services; and
  • • The District failed to develop an appropriate educational program for the 2022/2023 school year that could allow the Student to make meaningful progress in global areas.

(Parent Ex. “A”; see also Parents’ opening statement at Tr. 36-40 and closing statement at Tr. 118-125).

The District maintains that pursuant to the IEP dated June 1, 2022, it did in fact offer a FAPE for the Student for the 2022/2023 school year and that the Parents’ request should be denied in its entirety because they failed to meet their burden regarding the appropriateness of the unilateral placement in that it is far too restrictive and therefore eliminates the benefits of peer interaction and the Student’s progress at the REDACTED School (the “School”) declined (Tr. 35-36, 126-128).

The Parents unilaterally placed the Student at the School for the 2022/2023 school year, for which they are now seeking in part funding for all costs, e.g., tuition, transportation, and admission, associated with such placement for the 2022/2023 school year (Parent Ex. “A”). The Parents also seek attorneys’ fees. However, at the prehearing conference, Parents’ counsel agreed to the fact that this IHO does not have the authority to order attorneys’ fees (Tr. 8-9).

The Student’s eligibility and classification are not at issue in this case.

FINDINGS OF FACT AND DECISION

A. Introduction: The IDEA provides that children with disabilities are entitled to a FAPE (20 U.S.C. § 1400 (d)(1)(A)). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensively written IEP (Id., 20 U.S.C. §1414(d); 34 C.F.R. § 300.17). A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through, the IDEA's procedures, and is (c) reasonably calculated to enable the student to receive educational benefits. Board of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). In order to meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas County Sch. Dist., RE-1, 137 S. Ct. 988 (2017).

Decisions of impartial hearing officers must be on substantive grounds based on a determination of whether the student received a FAPE (8 NYCRR § 200.5(j)(4)(i)), except:

In matters alleging a procedural violation, an impartial hearing officer may find that a student did not receive a free appropriate public education only if the procedural inadequacies impeded the student’s right to a free appropriate public education, significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provision of a free appropriate public education to the parent’s child, or caused a deprivation of educational benefits. Nothing in this paragraph shall be construed to preclude an impartial hearing officer from ordering a school district to comply with procedural requirements under this Part and Part 201 of this Title 8 NYCRR § 200.5(j)(4)(ii).

Id.

School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement (NYS Educ. Law § 4404(1)(c)).

  • • The IDEA empowers a hearing officer to grant the relief he/she deems appropriate. 34 CFR §300.516(c)(3). One such remedy is reimbursement of tuition and related expenses. Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); Burlington Sch. Comm. v. Mass. Dep’t. of Educ., 471 U.S. 359, (1985). Notably, the mere fact that the state educational agency and/or LEA has not approved the private school placement does not bar the parents from reimbursement. Florence County Sch. Dist. Four v. Carter, supra.

The Parents presented two (2) witnesses on their direct case; REDACTED, Dean of the School (“Dean”) and REDACTED (the “Parent”).

The Dean testified in relevant part, regarding a description of the School, and the size of the reading and writing classes (Tr. 48-49, 49), the qualifications of teachers at the School and professional development provided to them (Tr. 49), the multi-sensory instruction provided to students at the School throughout the day (Tr. 50-51), the REDACTED Writing Program and reading methodologies used by the School (Tr. 51-52, 52-53), the related services provided by the School, e.g., occupational therapy, speech language therapy, and counseling as well as the educational technologist who conducts assistive technology evaluations (Tr. 53-56), the fact that Students at the School are bright with language based learning disabilities (Tr. 56), how the School develops Individualized Education Plans for all of the students (Tr. 56), how she is familiar with the Student (Tr. 57-58), the components of the IEP (Tr. 58-60), how the occupational therapist pushes in into the Student’s classroom (Tr. 60-61), why the School is providing speech language supports for the Student (Tr. 61-62), the Student’s reading group and how/why the other students were chosen (Tr. 62-66), the Student’s reading programs and why they were chosen for her (Tr. 66-69, 70), how the interventions were chosen for the Student are working for her and why they resulted in her feeling ready and easy when integrating into her new setting for 6th grade (Tr. 70-76). On cross-examination the Dean testified in relevant part that this Student has issues with articulation, but the School does not offer intensive ongoing articulation therapy (Tr. 76), and could not answer or address the reported “slower rate of progress” contained in the following statement on the June 1, 2022 which was generated at a CSE meeting she did not attend, “[The School] also reported that [the Student] had a private tutor last year, which she does not have now, in explaining her slower rate of progress this year as compared to last year” (Parent Ex. “F” at p. 30).

The Parent testified in relevant part regarding why she placed the Student at the School (Tr. 93-96), the fact that District first provided the Student with a placement for the 2022/2023 school year at the elementary school where she had attended before the Parents placed her at the School and despite the fact that she was now going into sixth grade/middle school, followed by a second placement at a middle school in September, after the 2022/2023 school year had begun (Tr. 99), the Student’s progress at the School (Tr. 99-104), interventions provided by the School to the Student (Tr. 104), how the School had been helpful to her as a parent (Tr. 105-106), the Parents are paying the Student’s tuition for the School (Tr. 106), the Student has a private tutor for the current school year (Tr. 106-108), the Parent signed the contract with the School in February 2022, in order to secure a seat for the 2022/2023 school year (Tr. 108, 110, 111).

B. Tuition Reimbursement: A board of education may be required to pay for educational services obtained for a child by the child's parent, (1) if the services offered by the board of education were inadequate or inappropriate, (2) the services selected by the parent were appropriate, and (3) equitable considerations support the parent's claim (Burlington Sch. Comm v. Mass. Dep’t. of Educ., supra; Florence County Sch. Dist. Four et al. v. Carter, supra; see also Frank G. and Dianne G. v. Board of Educ. of Hyde Park, 459 F.3d 356 (2d Cir. 2006), cert denied, Board of Educ. of Hyde Park Cent. Sch. Dist. v. Frank G., 2007 WL 2982269 (2007). Accordingly, the above-stated three (3) prong analysis (the “Burlington/Carter Criteria”) is applied to determine whether the board of education is required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents. Id.

The inquiry made pursuant to the first prong, may go beyond the appropriateness of the student’s IEP and/or placement and encompass other FAPE claims (see 20 USC §1412(a)(10)(C)(ii); 34 C.F.R. §300.148(a) and (c); Forest Grove v. T.A., 557 U.S. 230 (2009); P.C. Oceanside Union Free Sch. Dist., 818 F. Supp. 2d 516 (E.D.N.Y. 2011); Mr. N.C. v. Bedford Cent. Sch. Dist., 300 F. App’x 11 (2d Cir. 2009). To determine whether the school district made FAPE available to the student in a timely matter, Rowley’s two-part test, as modified by Endrew F. v. Douglas County Sch. Dist., RE-1, supra, for appropriateness should be applied. Specifically, the hearing officer must determine whether the school district complied with the procedural requirements of the IDEA and whether the IEP is reasonably calculated to enable the child to make appropriate progress in light of her circumstances. Id. “An appropriate educational program therefore begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services.” (See Application of the Dept. of Educ., Appeal No. 07-018 (2007)). Thus, the annual goals and short-term objectives should be consistent with, and relate to, the identified needs and abilities of the student. See Application of a Student with a Disability, Appeal No. 14-078 (2015) (citing 20 U.S.C. § 1414(d)(1)(A)(i)(II); 34 CFR § 300.320(a)(2)(i); 8 NYCRR § 200.4(d)(2)(iii)).

While the Second Circuit has emphasized that school districts must comply with a checklist of procedures for developing a student’s IEP, the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA. See A.C. v. Board of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 (2d Cir. 2009). Under the IDEA, if procedural violations are 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 parents’ 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 to the student (20 U.S.C. §1415(f)(d)(E)(ii); 34 C.F.R. §300.513(a)(2); 8 NYCRR §200.5(j)(4)(ii)).

As aforementioned, the DOE has the statutory burden of persuasion and production in this case, to show that the program and services offered, pursuant to the Student’s IEP were adequate or appropriate in order to satisfy Prong I of the Burlington/Carter Criteria. In this regard, the District failed to proffer sufficient documentary or any testimonial evidence or otherwise prove that it had offered the Student a FAPE for the 2022/2023 school year, e.g., whether it offered a program that “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas County Sch. Dist., RE-1, 137 S. Ct. 988 (2017).

Moreover, and as aforementioned the Parents allege the District failed to provide a FAPE to the Student for the reasons stated above, which this IHO addresses below:

  • • The District failed to consider appropriate evaluative data when developing the Student’s IEP at the CSE meeting held on June 1, 2022:

A CSE must consider independent educational evaluations whether obtained at public or private expense, provided that such evaluations meet the district's criteria, in any decision made with respect to the provision of a FAPE to a student (34 CFR 300.502(c); 8 NYCRR 200.5(g)(1)(vi)). However, consideration does not require substantive discussion, or that every member of the CSE read the document, or that the CSE accord the private evaluation any particular weight (Mr. P. v. W. Hartford Bd. of Educ., 885 F.3d 735, 753 (2d Cir. 2018), citing T.S. v. Ridgefield Bd. of Educ., 10 F.3d 87, 89-90 (2d Cir. 1993).

A review of the June 2022 IEP demonstrates that the CSE reviewed and included within the IEP many of the testing results and findings from the February 2021 neuropsychological evaluation, as well as the recommended testing accommodations (Parent Ex. “F” at pp.1-2, 25; “H” at pp. 1-2, 16). However, other than the February 24, 2021 Neuropsychological Evaluation there was no testimony or evidence submitted regarding the other evaluations the District allegedly failed to consider in developing the June 1, 2022 IEP, e.g., REDACTED’s occupational therapy evaluation, REDACTED’ speech language and assistive technology evaluations. Accordingly, the Parents have failed to support and therefore substantiate this claim.

  • • The recommended Integrated Co-Teaching Placement by the CSE at the meeting held on June 1, 2022 could not meet the Student’s learning needs:
  • • The Neuropsychological evaluation recommends the following school placement:
  • • [The Student] requires individualized support in the context of a small classroom within a small, nurturing school environment. [The Student] requires a program that will allow for individual attention and instruction tailored to her needs.
  • • She requires a small classroom, with no more than 15 students in attendance. In addition to small class size, [the Student] requires special education academic support in a. small group and one-to one as needed.

(Parent Ex. “H” at p.14) (emphasis added).

However, as aforementioned the District recommended integrated co-teachings classes, for Science, Math, and Social Studies along with Special Education Teacher Support Services (“SETSS”) for ELA, which means the Student would be in a regular education class for ELA (Parent Ex. “F”).

Pursuant to 8 NYCRR 200.6(g):

(g) A school district may include integrated co-teaching services in its continuum of services. Integrated co-teaching services means the provision of specially designed instruction and academic instruction provided to a group of students with disabilities and nondisabled students.

(1) The maximum number of students with disabilities receiving integrated co-teaching services in a class shall be determined in accordance with the students' individual needs as recommended on their IEPs, provided that the number of students with disabilities in such classes shall not exceed 12 students, unless a variance is provided pursuant to subparagraph (i) or (ii) of this paragraph.

Accordingly, it appears that all of the classes recommended by the CSE for the Student for the 2022/2023 school year, would be in regular education classrooms[1] and contain more than fifteen (15) students.

Since, as stated above the District failed to proffer sufficient documentary or any testimonial evidence or otherwise prove that it had offered the Student a FAPE for the 2022/2023 school year, e.g., that it complied with the recommendation in the Neuropsychological Evaluation that the Student be placed in a small, nurturing classroom where she would receive individualized/academic support in a small group and one-to-one as needed, in classes containing no more than fifteen (15) students, the District has failed to prove its recommendation is appropriate.

  • • The District failed to appropriately address the Student’s academic needs in that it failed to develop an educational program that could allow the Student to make meaningful progress in academic areas[2] and academic IEP goals that could allow for progress in that they are vague immeasurable, inappropriate, contain multiple components, and are not specifically tailored to allow for progress:

In terms of the second part of this allegation regarding the Student’s goals, the Parents failed to proffer any testimony or documentary evidence, or even address this allegation in their opening or closing statement. Accordingly, the Parents have failed to substantiate this claim.

  • • The District failed to develop appropriate levels of performance that address how the Student’s disability affects her involvement and progress in the general curriculum, and how the Student’s disability manifest and/or impacts her; the District failed to provide an appropriate and detailed description of the Student’s needs and abilities in all areas, and to provide adequate baseline through which progress could be measured, and the present levels of performance lack appropriate evaluative data and standardized assessments necessary to understand the Student’s needs and abilities:

The Parents failed to proffer any testimony or documentary evidence, or even address these allegations in their opening or closing statement. Accordingly, the Parents have failed to substantiate this claim.

  • • The District failed to appropriately classify the Student in that they changed her classification from Learning Disability to Speech or Language Impairment without data necessitating the change:

The Parents failed to proffer any testimony or documentary evidence, or even address this allegation in their opening or closing statement. Accordingly, the Parents have failed to substantiate this claim.

  • • The District failed to recommend appropriate related services, e.g., an appropriate language program, and any occupational therapy services:

The speech language evaluation dated August 26, 2021 states the following, in relevant part, regarding the Student’s recommended services:

Services and accommodations provided in the past were insufficient for [the Student] to make meaningful progress. According to her IEP from 06/21/2021, [the Student] is mandated to 2x30:1 sessions of speech-language therapy per week. However, [the Student] requires speech-language therapy at a mandate of 3x30:1 in order to receive adequate individualized therapy to establish the foundational language skills she needs. This recommended amount was derived from a qualitative clinical approach, considering [the Student’s] current needs and the time she will need to perform age-expected skills. These hours are recommended in addition to the provision of service to help expedite minimizing the gaps that are present. Unfortunately, without a robust clinical program, the gaps will continue to widen. It is recommended that these hours do not have an expiration date, to allow access to them over time.

Parent Ex. “K” at p. 21).

Similarly, the Neuropsychological Evaluation recommends “intensive” speech language service three (3) to four (4) times per week, “in school to address her articulation challenges as well as her inconsistent expression and comprehension. Individual sessions should focus on skill-building with the Student with a particular emphasis on improving her articulation, expression of conceptual aides and comprehension of language passages with and without salient detail” (Parent Ex. “H” at pp. 14-15). While the District has failed to proffer any evidence or testimony regarding their recommendation for the Student to receive one session in a group of up to two (2) students and one individual session, thirty minutes each, recommended on the IEP dated June 1, 2022. Accordingly, the Parents substantiated this claim, regarding the District’s failure to provide appropriate speech language services for the 2022/2023 school year.

  • • The District failed to develop an appropriate educational program for the 2022/2023 school year that could allow the Student to make meaningful progress in global areas:
  • • As more fully explained under Point 2 above, the Parents substantiated this claim.

Since, the District has failed to provide a FAPE and thus failed to satisfy the first prong of the Burlington/Carter criteria, the burden shifts to the Parents to prove that the unilateral placement was appropriate or proper. Burlington Sch. Comm., 471 U.S. at 369 and 370; see also Florence County Sch. Dist. Four et al. v. Carter, 510 U.S. at 15. In order to meet this burden, the Parents must establish, by a preponderance of the evidence, that the unilateral placement provides “educational instruction specifically designed to meet the unique needs of the student” (Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d. Cir. 2007)). In this regard, the court in Gagliardo explained:

No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.

Id. at 112 (quoting, Frank G., 459 F.3d at 364-65).

However, the private school placement “need not meet the IDEA’s definition of a free and appropriate public education” or “state education standards or requirements” (Frank G. v. Board of Educ., at 364). Moreover, the private placement need not provide certified special education teachers or an IEP. Parental placements are not subject to the same mainstreaming requirements as a school district placement. The private school placement must be reasonably calculated to enable the child to receive educational benefits, and must be likely to produce progress, not regression. Id.

In the instant case, the testimony and documentary evidence overwhelmingly support the Parents’ claim that the Student’s placement at the School provides her with educational instruction that is specifically designed to meet her unique special education needs, supported by such services that are necessary to permit her to benefit from instruction and established that the Student has, in fact, made meaningful progress at the School. In this regard the Dean testified in relevant part, why the School is providing speech language supports for the Student (Tr. 61-62), regarding the Student’s reading group and how/why the other students were chosen (Tr. 62-66), the Student’s reading programs and why they were chosen for the Student (Tr. 66-69, 70), and how the interventions chosen for the Student are working for her and why they resulted in her feeling ready and easy when integrating into her new setting for 6th grade (Tr. 70-76). Moreover, the size of the classroom and reading methodologies provided at the School appear to comply with the recommendations contained in the Neuropsychological Evaluation on pp. 14-16 of Parent Ex. “H”. The Parent also testified regarding the progress the Student had made at the School (see: Infra).

In addition, the School’s Year-End Report discussed her strengths and growth in writing, journal, and social studies (Parent Ex. “L” at pp. 2-3), gradual progress in reading (Id. at pp. 4-6), growth in math (Id. at pp. 7-8), progress in speech language therapy (Id. at p. 9), strengths in Typing Lab, art and music (Id. at pp. 10-11, 12), as well as how her areas of need in each class were addressed (Id.). is providing is pro The determination of whether, or not equitable factors support a parent’s claim for tuition reimbursement hinges, in large part, on whether, the parent cooperated with the CSE. In the instant matter, the DOE failed to provide any evidence and/or raise any equitable factors, which would preclude or limit tuition reimbursement for the Parents’ unilateral placement of the Student at the School for the 2022/2023 school year. In this regard the Parent testified that she signed the Tuition Contract with the School in February, knowing that she would lose the deposit, in order to hold a seat for the Student for the current school year (see: Infra). She also provided ten (10) business days’ notice to the District of her intention to enroll the Student in the School for the 2022/2023 school year (Parent Ex. “C”).

Based on the foregoing, this IHO finds that the Parents have satisfied the third prong of the Burlington/Carter Criteria for tuition reimbursement. Having met all three (3) of the Burlington/Carter Criteria, the Parents are entitled to reimbursement for the cost of the Student’s tuition at the School for the 2022/2023 school year. The record in this case establishes that the Student’s total annual tuition at the School for the 2022/2023 school year is SIXTY-SIX THOUSAND ONE HUNDRED DOLLARS ($66,100.00), of which the Parents have paid FORTY-THREE THOUSAND EIGHT HUNDRED AND SIXTY DOLLARS ($43,860.00) to date and owe a balance of TWENTY-TWO THOUSAND TWO HUNDRED AND FORTY-ONE DOLLARS ($22,241.00). Accordingly, the Parents are entitled to the District providing tuition reimbursement for the Student’s total tuition of SIXTY-SIX THOUSAND ONE HUNDRED DOLLARS ($66,100.00).

This IHO notes that the Parents paid ONE THOUSAND TWO HUNDRED NINETY-THREE DOLLARS AND SEVENTY-TWO CENTS for Tuition Refund Insurance ($1,293.72) (Parent Ex. “N” at p. 1). Reasonableness of the cost of the services which a Parent has obtained for a child may be considered in determining whether equitable considerations support the parent’s claim for reimbursement (Florence County Sch. Dist. Four, supra). When the cost of the services which a parent has obtained is excessive, a hearing officer or reviewing officer may properly limit the parent’s claim for reimbursement (Application of a Child with a Disability, Appeal No. 97-10, 06-004, 06-061, 06-058, 07-028, 99-021). Even though SRO decisions are not binding authority, they offer guidance in this regard. Accordingly, this IHO finds that the Tuition Refund Insurance is excessive, and therefore not proper to be included within an award of tuition reimbursement.

G. Transportation: As aforementioned the Parents request that this IHO order in part that the District shall fund all costs associated with the School for the 2022/2023 school year, including transportation (Parent Ex. “A”). However, at both the pendency hearing and Hearing, the Parents’ attorney acknowledged that the District had been providing transportation for the Student to the School and thus the Parents were no longer making this request (Tr. 8, 125).

ORDER

IT IS HEREBY ORDERED that no later than thirty (30) days after this Decision, the DOE shall reimbursement the Parents the total amount of SIXTY-SIX THOUSAND ONE HUNDRED DOLLARS ($66,100.00), upon the Parents providing documentation to the District demonstrating their payment of such amount to the School.

December 8, 2022

Randy Glasser

Randy Glasser, Esq.

Impartial Hearing Officer

NAMES AND TITLES OF APPEARANCES FOR HEARING HELD ON

NOVEMBER 17, 2022

DOE

REDACTED, Consultant Hearing Representative

PARENTS

REDACTED, Esq., REDACTED

REDACTED, Parent

REDACTED, Parent

REDACTED, Dean, the School

DOCUMENTS ENTERED INTO THE RECORD

IHO Exhibits

I. Order of Extension, 11/17/2022, 1 page

  • • DOE Exhibits
  • • None
  • • Parents’ Exhibits A. Parent’s Hearing Request, 09/06/2022, 14 pages B. Findings of Fact and Decision, 04/11/2022, 10 pages C. Ten Day Notice Letter, 08/22/2022, 3 pages D. Prior Written Notice, 06/12/2022, 6 pages E. Prior Written Notice, 09/23/2022, 6 pages F. Individualized Education Program, 06/01/2022, 31 pages G. Resume, Undated, 8 pages H. Neuropsychological Evaluation, 02/24/2021, 20 pages I. Academic Assessment, 06/15/2021, 2 pages J. Assistive Technology Evaluation, 08/26/2021, 12 pages K. Speech and Language Evaluation, 08/26/2021, 22 pages L. Year-End Report, 02/22 - 06/2022, 15 pages M. School Mission Statement, Undated, 2 pages N. School Enrollment Contract, Undated, 6 pages O. Student Schedule, 2022/2023, 2 pages P. Student Attendance Report, 09/08/2022 – 09/29/2022, 1 page Q. Tuition Document, 09/09/2022, 1 page

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.

Footnotes

[1] According to the UFT, “Students with disabilities who receive Integrated Co-Teaching services are educated with age appropriate peers in the general education classroom” (https://www.uft.org/teaching/students-disabilities/integrated-co-teaching-ict; last accessed 12/8/2022).

[2] See discussion of Point 2 above, demonstrating how this claim is substantiated.