New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 590746 - NYC: 241656

FINDINGS OF FACT AND DECISION

Introduction

This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer (“IHO”) in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (“IDEA”) and the New York State Education Laws. The School District will be referred to as District, the parent(s) as Parent(s) and the student will be referred to as Student.

Overview This is a “reimbursement” case. A board of education may be required to reimburse parents for their expenditures for private education services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim. Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); Sch. Comm. Of Burlington v. Dep’t. of Educ., 471 U.S. 359, 369-70 (1985). The analytical framework for deciding a reimbursement case is typically called a three-prong analysis.

This case involves a demand for tuition reimbursement for the 2022-2023 school year (“SY”). The Parents filed the complaint notice on November 4, 2022 (Ex. A). I was appointed as the IHO on December 20, 2022. A hearing was held across multiple dates.^[1] The Parents introduced exhibits A-Y into the record and called two (2) witnesses: the Co-Education Head of the Private School and the Mother. The District did not offer exhibits, nor did they call witnesses to testify on their behalf.

Parents’ Position The Parents allege that the District failed to provide the Student a Free Appropriate Public Education (FAPE) for the 2022-2023 SY. Specifically, the Parents claim that “the DOE failed to offer [the Student] a FAPE and denied him the right to a sound basic education as guaranteed by the New York State Constitution.” (Ex. A-5). To remedy the above, the Parents seek reimbursement for the tuition costs associated with the unilateral placement of the Student at the Private School.

District’s Position The District did not defend Prong nor raise substantial questions regarding Prong II or III.

Background of the Case On September 20, 2022, a CSE meeting was held to develop an IEP for the Student. Following the meeting, on August 17, 2022, the Parents sent the District a ten-day notice letter^[2] in which they rejected the recommendation and notified the District of their intent to unilaterally place the Student at the Private School for the 2022-2023 SY. (Ex. E). The Parents filed the complaint notice on November 4, 2022. (Ex. A).

Scope of the Hearing The scope of the impartial hearing is limited to the issues raised in the DPC. 8 NYCRR 200.5 (j)(1)(ii), 20 U.S.C. 1415(F)(3)(B), B.P. v. New York City Dep’t of Educ., 841 F. Supp. 2d 605, 611 (E.D.N.Y. 2012); R.C. ex rel. M.C. v. Byram Hills School Dist., No. 11 civ. 3938, 2012 WL 5862736, p. 11 (S.D.N.Y. Nov. 2012). Issues and allegations not contained within the four corners of this complaint are not to be considered pursuant to the applicable case law and regulations cited above. Similarly, any claims set forth within the DPC that were not addressed at the hearing should not be considered as they are considered abandoned. Application of a Child With A Disability Appeal 08-037 and Application of a Child With A Disability Appeal 10-067, pg. 9, n. 9.

Student History The Student was [Redacted] years old and classified as Other Health Impairment^[3] at the start of the 2022-2023 SY (Ex. A-8). At a previous school the teachers described him as “a challenging student who displayed aggressive behaviors and who had difficulty getting along with schoolmates, especially as the size of his group got larger” (Ex. A-2).

Legal Overview The IDEA is a comprehensive statutory framework established by Congress to aid the states in providing disabled children with a FAPE. 20 U.S.C. § 612(a)(I). “A [FAPE] is available to all children with disabilities residing in the state between the ages of 3 and 21.” 20 U.S.C. § 612(a)(1)(A). The IDEA defines a FAPE as special education and related services that:

(A) have been provided at public expense, under public supervision and direction, and without charge,

(B) meet the standards of the state educational agency,

(C) include an appropriate preschool, elementary, or secondary school education in the state involved, and

(D) are provided in conformity with the individualized education program required under § 614(d) of this title. 20 U.S.C. § 601(9). ^[4] A FAPE is crafted through the collaboration of the disabled student’s parents, teachers, and school district administrators and is recorded in an IEP. 20 U.S.C. § 614(d). The “core of the statute … is the cooperative process that [IDEA] establishes between parents and schools.” Schaffer v. Weast, 546 U.S. 49, 53 (2005). The IEP is, in brief, a comprehensive statement of the educational needs of a disabled child and the specially designed instruction and related services to be employed to meet those needs. 20 U.S.C. § 601(14). In New York State, the IEP is produced by a CSE, whose members are appointed by the board of education or trustees of the school district. N.Y. Educ. Law § 4402(1)(b)(1) (McKinney Supp. 2005).

The IDEA provides numerous procedural safeguards to protect the due process rights of disabled children and their parents. See generally, 20 U.S.C. § 615. These procedures include the opportunity for parents to obtain an IEE of the child (20 U.S.C. § 615(b)(I)) and file a complaint with the state or local educational agency (20 U.S.C. § 615(b)(6)). Any such complaint is resolved through an “impartial due process hearing” in which parents of disabled children have “an opportunity to present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a [FAPE] to such child.” 20 U.S.C. § 615(b)(6). Parties to an administrative proceeding under the IDEA have the right to written findings of fact and decisions on any complaint about the provision of a FAPE. Polera v. Board of Education Newburgh, 288 F.3d 478, 482 (2nd Cir. 2002).

Prong I

Did the District Provide a FAPE?

Legal Standard

Procedural Standard

Detailed procedural provisions lie at the heart of the IDEA. 20 U.S.C. §§ 612 and 615; 34 C.F.R. §§300.300-300.576; Evans v. Rhinebeck Central School District, 930 F. Supp. 83 (S.D.N.Y. 1996); B.E. R.R. v. State Bd. of Educ. 874 F.2d 1036, 1041 (5th Cir. 1989). In order to achieve the goal of providing all children with eligible disabilities with a FAPE, the IDEA statute requires that the states comply with “extensive procedural rights and safeguards” in order to receive federal funds for use in special education programs. See 20 U.S.C. § 615(a); LIH v. New York City Board of Educ., 33 IDELR 1 (E.D.N.Y. 2000); J.G. v. Board of Education of the Rochester City Sch. Dist., 830 F.2d 444, 445 (2d Cir. 1987).

In evaluating whether the District has complied with the procedural requirements of the IDEA, I consider whether the alleged procedural violation either 1) impeded the Student’s right to a free and appropriate public education, 2) significantly impeded the Parent’s opportunity to participate in the decision making process regarding the provision of a free and appropriate education, or 3) caused a deprivation of educational benefits. 20 U.S.C. § 1415(f)(3)(E)(ii); see also, Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp.2d 415, 419 (S.D.N.Y. Jan. 9, 2007), Application of a Child with a Disability, Appeal No. 07-007.

Substantive Standard IDEA requires an educational program reasonably calculated to enable a child to make progress appropriately considering the child's circumstances. Endrew F. v. Douglas Co. School Dist. Re-1, 137 S. Ct. 988 (2017). This obligation of the District is accompanied by the requirement to demonstrate the appropriateness of the program recommended by its CSE. (Application of a Child Suspected of Having a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Handicapped Child, 22 Ed Dept Rep 487 [1983]). To meet its burden, a board of education must be able to “. . . offer a cogent and responsive explanation for their decisions . . .” Endrew F., Supra.

Analysis

I first look to the Parents’ allegations to determine the scrutiny to apply in evaluating the District’s presentation. The complaint notice was explicit about the following alleged issues:

• The District did not provide [the Student] with a school to attend; • The District failed to provide the parent with adequate prior written notice; • A 12:l+l special class in a community school is not appropriate; • The District failed to establish and record sufficient baselines; • The IEP is not based on sufficient and reliable information; • The proposed goals are insufficient and inappropriate; • The proposed goals cannot be implemented in the recommended 12:1+1 special class in a community school program; • The District did not conduct an FBA; • The District failed to properly consider whether it should develop a behavior intervention plan; • The IEP does not adequately describe [the Student’s] needs; • [The parent] was denied the right to meaningfully participate; • The District’s recommendations were improperly predetermined; • The CSE review team was not duly constituted; • The District did not provide information regarding remote instruction; and • Any District recommended school placement is inappropriate. (Ex. A, 5-7).

This is the backdrop in which I weigh the District’s position, mindful that the District has the burden of proof. In New York State, “[t]he board of education or trustees of the school district or the state agency responsible for providing education to students with disabilities shall have the burden of proof, including the burden of persuasion and burden of production, in any such impartial hearing …” N.Y. Educ. Law § 4404 (1)(c), modifying the rule enunciated in Schaffer where “[t]he burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief.” Schaffer, 546 U.S. at 537. The District conceded Prong I to the extent that they did not defend the/any recommended program or placement. L.O. v. N.Y. City Dep't of Educ., 822 F.3d 95, 111 2016 U.S. App. LEXIS 9239. There was no testimony indicating the nature of the CSE deliberations, or even if such deliberations occurred. Rather, I am left to speculate concerning the particulars of the review process, the rationale employed by the CSE members and the discussions that may or may not have contributed to a final recommendation. Further, given the myriad specific substantive allegations against the school, and the failure to defend, I find that the District fell short of their burden in this case.

Conclusion Upon review, I find that the procedural violation resulted in a denial of FAPE for the Student. I, therefore, rule for the Parents on Prong I.

Prong II

Legal Issue: Did the Parents Establish the Appropriateness of the Private School?

Legal Standard

I now consider whether the Parents met their burden of proving the appropriateness of the unilateral placement of the Student at the Private School. On Prong II, New York federal courts have held that parental placements are “subject to fewer constraints than that applied to the school authorities.” Schreiber v. E. Ramapo Cent. Sch. Dist., 700 F. Supp 529 [S.D.N.Y. 2010] The Second Circuit has clearly stated:

“. . . [P]arents 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.” Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105 [2d Cir. 2007] quoting Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d Cir. 2006] Moreover, parents "may not be subject to the same mainstreaming requirements as a school board." Frank G. v. Bd. of Ed. of Hyde Park [2d Cir. 2006] quoting M.S. v. Bd. of Ed. of City Sch. Dist. of Yonkers, 231 F.3d 96, 105 [2d Cir. 2000] citing Warren G. v. Cumberland County Sch. Dist., 190 F.3d 80, 84 [3d Cir. 1999] (holding that "the test for the parents' private placement is that it is appropriate, and not that it is perfect").

The Co-Education Head at The Private School – Testimony via Affidavit The Private School Co-Education Head began her testimony on behalf of the Parents by stating her credentials and responsibilities: I have worked at the [Private School] for over 12 years in various roles. I began working as a student clinician for several months before working as an employed speech-language pathologist in 2011. I became Director of our Summer Learning Program in 2013 and Head Speech Pathologist in 2016. Starting in the 2020-2021 school year, I also worked as the school's Director of Communications. At the start of the 2022-2023 school year, I became Co-Education Head at the [Private School].

I have a Bachelor's degree (2009) from [ ] University and a Master's degree (2011) in Communication Sciences and Disorders. I hold the American-Speech and Hearing Association (ASHA) Certificate of Clinical Competence (CCC-SLP) and am a Licensed Speech-Language Pathologist in the state of New York. (Ex. X-1)

The Private School Co-Education Head then described the program at the Private School:

The curriculum at [the Private School] is based upon the New York State, or Common Core, Standards for Learning, with modifications, based on the individual needs of our students. In this regard, we modify our curriculums so that there are differences in the individualized pacing of the material as well as repetition and exposure to the content through various modalities to make sure our students are being provided with all of the content required by the Common Core, but at a pace that is individually tailored to each individual student's level of comprehension and needs. (Ex. X-5).

The Private School Co-Education Head continued, by describing the Student’s file and individual program in some detail:

Based on my review of [the Student’s] file and the information provided to [the Private School] by [the Parent], it is my understanding that, prior to starting school at [the Private School], [the Student] attended school in a series of small private schools for preschool and kindergarten. During the 2020-2021 school year, he was a student at the [ ] School. I have been advised that [ ] is a small [ ]-style school. [the Parent] informed me that while he was attending school at [ ], his teachers stated that he was a challenge in that he had some aggressive behaviors and difficulty getting along with schoolmates.

In terms of his reading skills at the beginning of the 2022-2023 school year in September 2022, [the Student] was inconsistent when identifying his letter sounds. He needed a lot of teacher support just to blend sounds together to form words. He needed moderate-maximal support such as oral segmentation and tactile cuing, to read on even a kindergarten level.

In terms of his writing skills at the beginning of the 2022-2023 school year in September 2022, [the Student] needed individualized support from a teacher when engaging in any writing activities. He was usually reliant upon the teacher to dictate the sounds in words individually so he could write them down. He would usually write using only capital letters and needed reminders regarding how to properly form lowercase letters. [the Student’s] stamina for writing was poor and presented as a negative and confounding variable, limiting how much writing he was actually able to write.

In math, when school started in September 2022, [the Student] needed support and was working on accurately identifying his numbers up to 50. He would frequently confuse many of the teen numbers and he needed a number line to use as a tool to count. At the start of the year, we were also working with [the Student] on representing quantities and counting sets of objects with one-to-one correspondence. He needed teacher support to group quantities, for labeling, and to show how he counted a set of objects. He also needed prompting and support regarding how to properly form his numbers.

When school started in September 2022, [the Student] had a strong need for one-on-one teacher support and facilitation to get through his day. Specifically, he was reliant upon us for 1 :1 support throughout the school day. He required consistent reminders to stay seated and focused. ln order to ensure comprehension of verbal directions, [the Student] needed prompts to repeat back the direction to ensure comprehension. Both his attentional and emotional interferences affected his performance. So, we provided him with teacher support to assist him in verbalizing his feelings throughout the day and taught him to recognize when he might need a break and to advocate for breaks when he needed them. [the Student] was reliant upon adult support regarding to properly Initiate conversations with peers and stick to topics that were schoolappropriate. (Ex. X.10-11)

The Private School Co-Education Head concluded with an assessment of the program’s appropriateness considering the Student’s needs, as well as ways he has progressed.

Once [the Student] realized he could confide in and trust his counselor and other special education providers including his teachers at [the Private School], he became more aware of what was difficult for him and what he found more challenging. This diminished the length of [the Student’s] periods of dysregulation as well as the frequency of the times that he became dysregulated.

In fact, as the school year is progressing, [the Student’s] periods of becoming upset and dysregulated are becoming much less frequent, from taking place continuously throughout a day at the start of the 2022-2023 school year to only a few times a day now. [The Student] is learning to ask for his counselor and teachers to help support himself and in turn he is using the adult help more, so he becomes upset significantly less frequently.

Further, [the Student’s] confidence and ability to show us what he can accomplish in small group lessons has increased. In his small reading class of two students, he is now able to identify letters and their corresponding sounds, write words and sentences from dictation (e.g .. ''The man sat in the van"), and read word family/level l readers and corresponding PAF Merrill Readers. He is remarkably proud of his growth, specific to reading. In math he's been able to be a learner in a group of 3 - counting (numbers and coins), improving fact fluency, understanding place value, and adding numbers with visuals.

Based on all of the foregoing, I do not believe that [the Student] would be able to function or make any educational progress if he was forced to attend school in a DOE community school. Conversely, I believe [the Student] made and is making meaningful progress at [the Private School].

Accordingly, I believe his placement at [the Private School] was appropriate and is addressing [the Student’s] learning needs. (Ex.s X-12 & X-18)

The Mother – Affidavit Testimony

The Mother described the ways the student has struggled and the challenges he faces: Based on what I have been told by [the Student’s] teachers and others who work (and who have worked) with him at [the Private School] (and at his prior school) and upon the reports and evaluations concerning [the Student] that I have reviewed over the years (see, e.g., Exhibits (C, pp. 3 -7), (U at pp. 7), and (V at pp. 2 - 12)), I believe that [the Student] is a child who has good cognitive and learning potential who is inhibited by a variety of issues.

Among the issues that interfere with [the Student’s] learning are difficulties resulting from his inability to focus and attend, heightened-anxiety, low frustration tolerance, poor emotional regulation, impulsivity, challenges in reading, writing, and math, language processing issues, and behavioral challenges.

[The Student] is aware of his challenges. He suffers from a lack of confidence in his liabilities and from poor self-esteem, especially as it relates to his learning and his social challenges.

[The Student] is easily frustrated which causes him to get upset and dysregulated. When dysregulated, he cannot constructively engage or interact with peers, teachers, or anyone else. (Ex. Y.1-2).

The Mother describes why she chose to send the Student to this specific Private School:

What Dr. [[ ] reported to me frightened me. I was worried for my son's wellbeing. So, upon receiving the report from Dr. [ ], in the Spring of 2022 (specifically in March 2022), and because I was not aware that there might be public-school options for a child with challenges like the ones [the Student] had, I immediately moved him to a school that I was told could provide [the Student] with what Dr. [ ] stated he needed to learn, [the Private School]. [The Student] moved to [the Private School] in March 2022 and he finished his kindergarten school year, the 2021-2022 school year, at [the Private School] where he blossomed. (Ex. Y-3)

The Mother describes how the Student has benefited from his time at the Private School:

I believe that [the Student] made a lot of progress at [the Private School] so far during the 2022-2023 school year. He improved in terms of his academic, social and emotional, and behavioral skills. He has also made significant improvements in terms of his academic and social skills. [The Student] improved in his reading, writing, math, executive functioning, and communicative skills. Moreover, he has shown marked improvement in terms of his emotional regulation and he has made and has friends at [the Private School]. (Ex. Y.11-12).

Conclusion In addition to considering the testimony and observations of the Co-Education Head, I am mindful of the unique and complicated profile of the Student as outlined above in the “Student History” and is amplified throughout the record.

To conclude, I find that the Private School provided educational instruction specially designed to meet the unique needs of the Student. I credit the Parents’ exhibits and witnesses for articulating the appropriateness of the placement in addition to the Student’s progress. The Parents have met their burden by establishing that such services were necessary to permit the Student to benefit from instruction. I, therefore, rule for the Parents for Prong II.

Prong III

Legal Issue: Did the Parents Cooperate with the District?

Legal Standard A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents where equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "Reimbursement merely requires [a district] 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 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148 5). The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85; M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at 7 [S.D.N.Y. Aug. 27, 2010]).

Tuition reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the child from public school, or by written notice ten 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

5 § 300.148 Placement of children by parents when FAPE is at issue.

(a) General. This part does not require an LEA to pay for the cost of education, including special education and related services, of a child with a disability at a private school or facility if that agency made FAPE available to the child and the parents elected to place the child in a private school or facility. However, the public agency must include that child in the population whose needs are addressed consistent with §§ 300.131 through 300.144.

(b) Disagreements about FAPE. Disagreements between the parents and a public agency regarding the availability of a program appropriate for the child, and the question of financial reimbursement, are subject to the due process procedures in §§ 300.504 through 300.520.

(c) Reimbursement for private school placement. If the parents of a child with a disability, who previously received special education and related services under the authority of a public agency, enroll the child in a private preschool, elementary school, or secondary school without the consent of or referral by the public agency, a court or a hearing officer may require the agency to reimburse the parents for the cost of that enrollment if the court or hearing officer finds that the agency had not made FAPE available to the child in a timely manner prior to that enrollment and that the private placement is appropriate. A parental placement may be found to be appropriate by a hearing officer or a court even if it does not meet the State standards that apply to education provided by the SEA and LEAs.

(d) Limitation on reimbursement. The cost of reimbursement described in paragraph (c) of this section may be reduced or denied (1) If - (i) At the most recent IEP Team meeting that the parents attended prior to removal of the child from the public school, the parents did not inform the IEP Team that they were rejecting the placement proposed by the public agency to provide FAPE to their child, including stating their concerns and their intent to enroll their child in a private school at public expense; or (ii) At least ten (10) business days (including any holidays that occur on a business day) prior to the removal of the child from the public school, the parents did not give written notice to the public agency of the information described in paragraph (d)(1)(i) of this section;

(2) If, prior to the parents' removal of the child from the public school, the public agency informed the parents, through the notice requirements described in § 300.503(a)(1), of its intent to evaluate the child (including a statement of the purpose of the evaluation that was appropriate and reasonable), but the parents did not make the child available for the evaluation; or (3) Upon a judicial finding of unreasonableness with respect to actions taken by the parents.

(e) Exception. Notwithstanding the notice requirement in paragraph (d)(1) of this section, the cost of reimbursement - (1) Must not be reduced or denied for failure to provide the notice if - (i) The school prevented the parents from providing the notice; (ii) The parents had not received notice, pursuant to § 300.504, of the notice requirement in paragraph (d)(1) of this section; or (iii) Compliance with paragraph (d)(1) of this section would likely result in physical harm to the child; and

(2) May, in the discretion of the court or a hearing officer, not be reduced or denied for failure to provide this notice if -

(i) The parents are not literate or cannot write in English; or (ii) Compliance with paragraph (d)(1) of this section would likely result in serious emotional harm to the child. (Approved by the Office of Management and Budget under control number 1820-0030) (Authority: 20 U.S.C. 1412(a)(10)(C)) and their intent to enroll their child in a private school at public expense." (20 U.S.C. § 612[a][10][C][iii][I] ; see 34 C.F.R. § 300.148[d]) This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools." (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004])

Analysis

The Parents sent a ten-day notice letter in a timely manner, expressing their intent to unilaterally place the Student at the Private School for the 2022-2023 SY. In the letter, the Parents informed the District that they would seek funding from the District for the placement. (Ex. E).

Conclusion Upon review of the record, I find that the Parents cooperated with the District and did nothing to impede them from developing an appropriate IEP for the Student. As such, I find no reason for a reduction in tuition reimbursement. I, therefore, rule for the Parents in Prong III. It is therefore ORDERED

For the District to reimburse/directly pay the Parent(s)/Private School for cost of tuition at the Private School where they unilaterally placed the Student for the 2022-2023 SY together with reimbursement for the cost of transportation to and from the Private School upon presentation of invoicing for same.

Dated: June 06, 2023

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] A hearing was held across the following dates: February 1, 2023; May 17, 2023; and June 5, 2023.

[2] In the letter, the Parents’ representative wrote the following: In addition, the parent(s) believe(s) that, regardless of any procedural errors it may have committed, the DOE failed to develop a substantively appropriate IEP and offer a school placement that was adequate and/or appropriate to address [the Student’s] individual educational needs including, but not limited to his attentional, sensory, language processing, social, environmental, emotional, and academic needs during the 2022-2023 school year. As a result, unless the DOE provides [the Student] with an offer of a FAPE for the 2022-2023 school year, he will be placed a [the Private School], located on [Redacted] in [Redacted], when school starts. If the parent(s) has/have to place unilaterally [the Student], he/she/they will seek reimbursement and/or payment for [the Student’s] private school placement from the DOE. A formal request for due process will follow (Ex. E-2).

[3] 8 NYCRR 200.1(zz)(10) Other health-impairment means having limited strength, vitality or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment, that is due to chronic or acute health problems, including but not limited to a heart condition, tuberculosis, rheumatic fever, nephritis, asthma, sickle cell anemia, hemophilia, epilepsy, lead poisoning, leukemia, diabetes, attention deficit disorder or attention deficit hyperactivity disorder or tourette syndrome, which adversely affects a student's educational performance.

[4] “Special education” is defined by the IDEA as specially designed instruction, at no cost to parents or guardians, to meet the unique needs of a child with a disability, including (A) instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and (B) instruction in physical education. The term “related services” is defined as transportation, and such developmental, corrective, and other supportive services (including speech pathology and audiology, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, counseling services, including rehabilitation counseling, and medical services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education, and includes the early identification and assessment of disabling conditions in children. 20 U.S.C. § 601(26).