New York City Department of Education, Impartial Hearing Decision

CASE NUMBER NYC: 234208

FINDINGS OF FACT AND DECISION

Case Number: 234208

Student’s Name1: [REDACTED] (“Student”) Date of Birth: [REDACTED]

School District: NYC

Hearing Requested by: [REDACTED] (“Parent(s)”) Request Date/Date Complaint Filed: 9/7/2022 Date(s) of Hearing: 11/9/2022

Actual Record Closed Date: 11/21/2022

Date of Decision: 11/21/2022 Hearing Officer: Teril Holston, Esq.

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

NAMES AND TITLES OF PERSONS WHO APPEARED ON 11/9/2022

For the Student:

[REDACTED], Esq.

For the Department of Education: [REDACTED], Esq.

INTRODUCTION

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

On September 7, 2022, Petitioner filed a Due Process Compliant (“Complaint” or “DPC”) against the New York City Department of Education (“NYC DOE” or “DOE” or “District”) alleging that the District failed to provide the student with a Free and Appropriate Public Education (“FAPE”) for the 2022-2023 school year, in that the IEP program was not reasonably calculated to confer an educational benefit, and the placement was untimely and inappropriate (P-A)2. The Petitioner is seeking tuition reimbursement/ direct payment for their unilateral placement of the student at Private School, a private program not approved by the Commissioner of Education for the education of students with disabilities for the 2022-2023 school year, (Id.). Furthermore, the parent alleges that the equities support their claim for tuition reimbursement for the school year at issue (Id.).

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

PROCEDURAL HISTORY

On October 7, 2022, the undersigned was appointed to conduct an impartial hearing. The parties held a prehearing conference on October 24, 2022.

On November 9, 2022, the virtual impartial hearing on the merits of the DPC commenced and concluded. It was a closed hearing and the record closed on November 21, 2022.

At the hearing, the District’s representative did not present any evidence or witnesses. The District waived an opening statement and rested.

The Parent, through their representative, submitted to documents (Ex. P-A though P-N),3 including the affidavit testimony of the parent and the Private School Principal, in support of the Parent’s case. All of the documents were admitted into evidence without objection from the District. The

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

3 A more detailed list of exhibits is attached.

Parent rested and the DOE advised that it had no further statement to make or testimony or documents to offer.

JURISDICTION

The due process hearing was held, and a decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.

FINDINGS OF FACT

After a full review of the record generated at hearing, I make the following findings of fact and determinations4:

The student is a [REDACTED] classified by the CSE as a student with an Intellectual Disability (P- J). The student is diagnosed with Down’s syndrome (P-L; P-M). The student’s academic functioning levels in reading comprehension are that of a second grader. The student struggles with expressive, receptive and pragmatic language skills (P-L). The student requires 1:1 support, repetitive instruction and continued development of his ADL skills.

The student has been attending Private School since the 2008-2009 school year, in a classroom of 12 students, 1 teacher and 1 assistant teacher (P-L). Private School is a specialized school in a facility with a mainstream private boys’ school (P-L). Approximately 10% of the school day constitutes religious instruction (P-L). All of the approximately 60 students, ages 8 to 21, attending Private School for the 2022-2023 school year have an intellectual disability (Id.). Therefore, the student is placed in a classroom with similarly situated peers (Id.). The Private School curriculum focuses on academic, social and vocational skills. The student is also receiving occupational therapy (3x30), Physical therapy (1x30) and Speech therapy (4x30 (P-F).

An IEP meeting was convened in or about February 2022 (P-B).5 The parent, through counsel notified the District on June 17, 2022 that they were rejecting the IEP and declining the placement and will continue the unilateral placement until an appropriate placement is found (P-B).

4 Although only portions of the evidence are referenced herein, the testimony and documents were reviewed and considered, in full.

5 Although referenced in the due process complaint, an IEP was not entered into evidence.

The parent signed a contract with Private School for the 2022-2023 academic school year on August 23, 2022 at the base cost of $99,000, which the parents do not have the means to pay (P-D; P-K).

PENDENCY

The Parents requested an interim order on pendency seeking enforcement of the Student’s “stay-put” rights during the pendency of the case (P-A).

Under the IDEA, the pendency inquiry focuses on identifying the student’s then-current educational placement. Application for Review of a Determination, Appeal No. 10-112, citing Mackey v. Bed. of Educ., 386 F. 3d 158 (2d Cir. 2004). The student’s then-current educational placement “refers to the child’s last agreed-upon educational program before the parent requested a due process hearing to challenge the child’s IEP” (Ventura de Paulino v. New York City Dept. of Educ., 959 F.3d 519, 532 (2d Cir. 2020)).

Here, the Parents presented an unappealed FOFD dated March 21, 2014 where the unilateral placement at Private School was found to be appropriate(P-N). The parent alleges this was the last agreed upon program. The District Representative did not contest the parent’s assertion. Therefore, I find that the student is entitled to pendency as of the date on the due process complaint.

CONCLUSIONS OF LAW

The Individuals with Disability Education Act (“IDEA”) establishes that students with disabilities are entitled to a free and appropriate education (“FAPE”).6 A “free appropriate public education consists of educational instruction that is designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child to benefit from the instruction.”7 In order to demonstrate that a FAPE is being provided, the school district must show “that it complied with the procedural requirements set forth in the IDEA, and that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits.”8 The student's recommended program must also be provided in the least restrictive environment with non-disabled peers.9 The parent seeks tuition reimbursement for the unilateral placement of the student in Private School for the 2022-2023 school year and the cost of related services. As set forth in Florence County

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

7 Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 188 (1982).

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

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

Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); Sch. Comm. Of Burlington v. Dep’t of Educ., 471 U.S. 359 (1985) it is well established that a District may be required to reimburse parents for tuition payment to a private school if the services offered by the District were inadequate or inappropriate, the services selected by the parents were appropriate under the IDEA, and equitable considerations support the parent’s claim for reimbursement. Thus, consideration of such a claim has been expressed by a three-prong test: (1) was student denied FAPE; (2) the appropriateness of the Parent’s unilateral placement; and (3) a balancing of the equities.

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE10. A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction."11 “To meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”12 Further, “an IEP is not a form document” and it should be constructed after carefully evaluating the student.13

An appropriate program begins with an IEP which accurately reflects the results of the 1) student’s present levels of performance; 2) provides for the use of appropriate special education services to address the child's special education needs; 3) establishes annual goals which are related to the child's educational deficits; 4) identifies transitions services; 5) provides a start and end date to the recommended program and services; and 6) criteria and evaluation procedures for the measurement of goals.14

Special education services must be provided by the district in conformity with the student's IEP.15 A denial of a FAPE occurs if the district deviates from substantial or significant provisions of the student's IEP in a material way and thereby precludes the student from the opportunity to receive educational benefits.16

10 20 U.S.C. § 1415[f][3][E][i].

11 Rowley, 458 U.S. at 203.

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

13 Id.

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

15 20 U.S.C. § 1401[9][D]; 34 CFR 300.17[d]; 20 U.S.C. § 1414[d]; 34 CFR 300.320.

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

However, school districts are not required to "maximize" the potential of students with disabilities17, but must provide "an IEP that is 'likely to produce progress, not regression,' and... affords the student with an opportunity greater than mere 'trivial advancement'"18. The IEP must be "reasonably calculated to provide some 'meaningful' benefit"19.

The burden of persuasion and proof is by the preponderance of the evidence standard, which requires a finding that the existence of a fact is more probable than not. When the evidence is evenly balanced, the party with the burden loses. The burden of proof at an impartial hearing is on the district, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement20. Accordingly, the burden of production and persuasion is on the District for the first and third prongs and on the Parent for the second prong.

ANALYSIS

• • Prong I: FAPE It is asserted in the DPC that the DOE failed to provide the student with a FAPE for the 2022- 2023 school year for a number of reasons. As to Prong I of the Burlington/Carter standard, the DOE failed to meet its burden, presenting no documentary evidence or witnesses. The District offered no explanation as to how the CSE made its recommendation, how the IEP appropriately describes the Student, whether the IEP is meaningfully calculated to confer educational benefit, or whether the school identified by the District met the student’s needs. In short, the District declined to “offer a cogent and responsive explanation for their decisions” in creating that IEP, and it is “through the IEP that “[t]he ‘free appropriate public education’ required by the Act is tailored to the unique needs of” a particular child”. Endrew F., 137 S.Ct. at 1002. The District failed to provide any defense of the program recommended for the student. Therefore, the undersigned is constrained to find that the District failed to offer the student a FAPE for the 2022-2023 school year. Moreover, a review of the record herein establishes that the weight of the evidence supports the conclusion that the DOE failed to offer the Student an educational program reasonably calculated to offer FAPE for the 2022-2023 school year.
• • Unilateral Placement 17 Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir.

1998], at 132.

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

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

20 Educ. Law § 4404[1][c]; see R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 [2d Cir. 2012].

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

Parents need not show that the placement provides every special service necessary to maximize the student's potential.21 When determining whether the parents' unilateral placement is appropriate, that placement must be “reasonably calculated to enable the child to receive educational benefits.”22 A private placement is only appropriate if it provides education instruction specially designed to meet the unique needs of a student.23

A private school placement must be “proper under the Act”24, i.e., the private school must provide an educational program which meets the student's special education needs.25 A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement.26 The private school need not employ certified special education teachers or have its own IEP for the student.27 The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement:

“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.”28

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

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

23 20 U.S.C. § 1401[29]; 34 CFR 300.39[a][1]; Educ. Law § 4401[1]; 8 NYCRR 200.1[ww]; Rowley, 458 U.S. at 188-89.

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

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

26 Carter, 510 U.S. at 14

27 Id.

28 Gagliardi, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65.

Moreover, where the failed to provide the student with a FAPE, the District is precluded from arguing that the testing, evaluations, or assessments introduced by the Parent’s and utilized by the unilateral placement are not sufficiently comprehensive evaluations of the student’s functioning levels and needs, as it is the District that retains the requirement to comprehensively evaluate the student.29

• • Student Needs In this case, the Parent submitted progress report composed by the Private School professionals, as well as the affidavit testimony of the Private School Principal, detailing the student’s needs (See Generally, P-I; P-P-J; P-L).
• • Program The Private School is a private, religious, and highly specialized education program created for children who suffer from intellectual disabilities. The Private School provides its students with educational goals geared toward improving functioning skills appropriate to their cognitive, physical, and developmental levels. The Private School offers its students a wide variety of related therapy services, including occupational therapy, physical therapy, and speech therapy. Further, the Private Schools’ colocation with a mainstream school allows the students normal and regular interaction with general education students. The Private School, modifies instruction to meet the student’s individual needs and provides necessary related services (P-L; P-M).
• • Progress With respect to the student’s progress at Private School, a finding of progress is not required for a determination that a student's unilateral placement is adequate, but it is a relevant factor to be considered.30 Here the parent detailed the progress that she has seen in the student since attending the Private School.

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

[finding that a unilateral placement was appropriate even where the private school reports were alleged by the district to be incomplete or inaccurate and finding that the fault for such inaccuracy or incomplete assessment of the student's needs lies with the district]; see also Application of the Dep't of Educ., Appeal No. 21-194; Application of the Dep't of Educ., Appeal No. 20-131; Application of the Dep't of Educ., Appeal No. 18-125; Application of a Student with a Disability, Appeal No. 180-049; Application of a Student with a Disability, Appeal No. 15-076; Application of a Student Suspected of Having a Disability, Appeal No. 15-038; 17 Application of a Student with a Disability, Appeal No. 14-033; Application of a Student with a Disability, Appeal No. 14-028; Application of a Student Suspected of Having a Disability, Appeal No. 14-003; Application of the Dep't of Educ., Appeal No. 13-198; Application of the Dep't of Educ., Appeal No. 13-072; Application of a Student with a Disability, Appeal No. 12-027

30 Gagliardo, 489 F.3d at 115, citing Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21, 26-27 (1st Cir. 2002)

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

The weight of the evidence demonstrates that the student’s individual special education needs were addressed by the private school and that the instruction offered was "reasonably calculated to enable the child to receive educational benefits."31 Of note, the District offered no arguments concerning the appropriateness of Parent’s unilateral placement, nor challenged the equities in this action. Further, the District had the opportunity to cross-examine the Parent’s witnesses and did not object to any evidence entered into the record. Under these circumstances, I find that the Parent’s witnesses and documentary evidence are credible.

• • Equitable Considerations Equitable considerations are relevant in determining relief “because the authority to grant reimbursement [under the IDEA] is discretionary.”32 “With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412 [a][10][C][iii]; 34 CFR 300.148[d]; E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014] [identifying factors relevant to equitable considerations, including whether the withdrawal of the student from public school was justified, whether the parent provided adequate notice, whether the amount of the private school tuition was reasonable, possible scholarships or other financial aid from the private school, and any fraud or collusion on the part of the parent or private school]; C.L., 744 F.3d at 840 [noting that "[i]important to the equitable consideration is whether the parents obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA"]).

Reimbursement may also be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to their removal of the student from public school, or by written notice 10 business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense."33 This statutory

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

32 Frank G., 459 F.3d at 363-64 (quoting, Burlington, 471 U.S. at 374).

33 20 U.S.C. § 14129(a)(10)(C)(iii)(I); see 34 CFR 300.148(d)(1) provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools."34 Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision.35 Parents of students enrolled in private school are not exempted from 10-day notice requirements.36 The Second Circuit has recently reiterated that "[t]he ten-day notice requirement gives school districts an opportunity to discuss with parents their objections to the IEP and to offer changes to the IEP designed to address those objections—all before the parents enroll their child in a private school and file a due process complaint" and that "if parents unreasonably reject the school district's proposed changes to the IEP, or are otherwise uncooperative, courts and hearing officers are fully empowered to deny them reimbursement"37

However, the hearing officer must excuse the failure to provide timely notice if, in her discretion, she determines that the reason for the lack of timely notice is that the school district prevented the parents from providing the notice, the parents had not received the procedural safeguards notice advising of the requirement to provide notice, or compliance with the notice requirement would likely result in physical harm to the student.38 In the instant case, the parent provided the necessary Ten-Days’ Notice of their concerns with the District’s offer of a FAPE for the student for the 2022-2023 school year on June 17, 2022 (P-B).

Therein, the parent detailed their specific concerns with the recommendations and provided notice of their intention to unilaterally place the student (Id.). There is nothing in the hearing record to demonstrate that the District responded to the parents.

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

Direct tuition funding is relief encompassed by the equitable remedial powers inherent in IDEA. See e.g. Mr. and Mrs. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 406 (S.D.N.Y. 2011)

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

35 Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 (1st Cir. 2004); Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 (6th Cir. 2003); Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 (1st Cir. 2002); see Frank G., 459 F.3d at 376; Voluntown, 226 F.3d at 68).

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

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

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

(parents may seek direct funding in the instance in which, “due to a lack of financial resources, [parents of a student with a disability] have not made tuition payments but are legally obligated to do so”). I find that the unilateral tuition costs exceed the Parent’s ability to fund and await reimbursement, and the Parent filed a DPC. Equity demands that the DOE fund Student’s Private School tuition in this instance.

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

However, tuition reimbursement may be limited to the amount paid for the secular part of the student's education. In Application of the Board of Education of the City School District of the City of New York, Appeal No. 96-14, the State Review Officer stated that tuition reimbursement to parents of a student who attends a school which offers religious instruction is not precluded by the First Amendment's Establishment Clause. The decision relies on Zobrest v. Catalina Foothills School District, 113 S.Ct. 2462 (1993), which held that "Government programs that neutrally provide benefits to a broad class of citizens defined without reference to religion are not readily subject to an Establishment Clause challenge just because sectarian institutions may also receive an attenuated benefit." The IDEA has the clear secular purpose of ensuring that all children with disabilities are offered a free appropriate public education. Tuition reimbursement does not “have as its primary effect the advancement of religion. Tuition reimbursement does not create a financial incentive for children to undertake religious education. It simply makes parents whole, by reimbursing them for expenditures which they would not have made, if their boards of education had offered their children the appropriate educational placements."39 As such, I find that the student part-religious curriculum does not preclude an award of tuition reimbursement. The record indicates that only about 10% of the student’s school day is devoted to religious instruction. The District made no objections or arguments; therefore, I find no reason to reduce the award.

CONCLUSION

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

• • The District failed to provide the student with a FAPE during the 2022-2023 school year.

39 Application of the Board of Education of the City School District of the City of New York, Appeal No. 96-14

• • The parent’s unilateral placement at Private School was appropriate and equitable considerations support an award of tuition reimbursement and direct funding for the 2020-2023 school year.
• • The undersigned has reviewed the parent’s remaining contentions and find them to be either unnecessary to this decision, without merit, beyond my jurisdiction, too vague to be of use, or without sufficient basis in the record for a finding and award of relief. Accordingly, any relief not specifically discussed in this decision is denied, and all the Parent’s remaining claims not discussed herein are dismissed with prejudice.

ORDER

IT IS HEREBY ORDERED, effective September 7, 2022, the date of filing, and during the pendency of these due process proceedings, the District shall continue to fund the student’s placement at Private School;

IT IS FURTHER, ORDERED, that the New York City Department of Education shall directly pay Private School the balance for all tuition and fees for the student’s unilateral placement at Private School for the 2022-2023 school year in amount not to exceed $99,000 within 30 calendar days of this Order. For the purposes of this Order, I find the evidence submitted in Petitioner’s Exhibit D and Exhibit K to be adequate proof of balance owed entitling Petitioner to immediate relief. Furthermore, I find that the District has already been provided with adequate proof via this proceeding and so the District shall directly pay the Private School within 30 calendar days from the date of this decision without any action on the part of Petitioner.

DATED: SO, ORDERED

11/21/2022 /s/ Teril Holston

Teril Holston, Esq., IHO

NOTICE OF RIGHT TO APPEAL

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

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

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

IMPARTIAL HEARING OFFICER'S CERTIFICATION OF THE RECORD

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

DATED: CERTIFIED BY

11/21/2022 /s/ Teril Holston

Teril Holston, Esq., IHO

APPENDIX A – REDACTION IDENTIFICATION PAGE

Student’s Name: [REDACTED]

Date of Birth: [REDACTED] School District: NYC

Parent’s Name: [REDACTED] Principal: [REDACTED]

Private School: [REDACTED]

APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD

PARENT EXHIBITS

Exhibit

Document

Date

Pages

A Request for Impartial Hearing 9/7/2022 8

B Notice of Unilateral Placement 6/17/22 5

C 18-19 Findings of Fact and Decision 11/9/19 5

D 22-23 [REDACTED] Contract 8/23/22 3

E 22-23 Class Schedule undated 1

F 22-23 Therapy Schedule undated 1

G 22-23 Attendance Record 10/1/22 1

H 22-23 [REDACTED] Curriculum undated 14

I Progress Checklist 9/12/22 8

J Individualized Education Program 1/13/21- 1/31/22 9

K [REDACTED] Payment Affidavit 10/26/22 1

L Affidavit of [REDACTED] 11/3/22 8

M Affidavit of [REDACTED] 10/25/22 7

N Findings of Fact and Decision 3/21/14 12 DOE’S EXHIBITS Exhibit

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IHO’S EXHIBITS

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