New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 592010 - NYC: 242693

REDACTED

FINDINGS OF FACT & DECISION

Case No.: 242693

Student’s Name: [Redacted] (referred to as “Student”)

Date of Birth: [Redacted]

District: [Redacted]

Hearing Request by: [Redacted] (referred to as “Parent”)

School: [Redacted] (referred to as “Private School”)

Date of Complaint: November 22, 2023

Hearing Dates: March 31, 2023

April 17, 2023

April 27, 2023

May 11, 2023

Actual Record Close Date: May 22, 2023

Decision Date: June 5, 2023

Hearing Officer: Vanessa M. Gronbach, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

MARCH 31, 2023

For the Student:

[Redacted], Esq., Parent Attorney

For the Department of Education:

[Redacted], Esq., District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

APRIL 17, 2023

For the Student:

[Redacted], Esq., Parent Attorney

[Redacted], Parent Student

For the Department of Education:

[Redacted], Esq., District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

APRIL 27, 2023

For the Student:

[Redacted], Esq., Parent Attorney

For the Department of Education:

District Representative – NONE

NAMES AND TITLES OF PERSONS WHO APPEARED

MAY 11, 2023

For the Student:

[Redacted], Esq., Parent Attorney

[Redacted], Parent Student

[Redacted], Director of Academics, Private School

For the Department of Education:

[Redacted], Esq., District Representative

ISSUES

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) through the Parents’ Due Process Complaint (“DPC”) filed on or about November 22, 2022, regarding the 2021/22 and 2022/23 school years (P-Ex. A) ^[1]. The DPC alleged that the District denied the Student a Free Appropriate Public Education (“FAPE”) as required by the Individuals with Disabilities Education Act (“IDEA”) by not providing the Student with special education services during the 2021/22 school year; and failing to provide an appropriate program and placement for the 2022/23 school year (P-Ex. A). The Parent requested tuition reimbursement / direct payment for their unilateral placement of the Student at the Private School, transportation, and compensatory services for missed SETSS and counseling sessions (P-Ex. A).

PROCEDURAL HISTORY

The undersigned was appointed as hearing officer in this matter on January 17, 2023. A prehearing conference was held on January 26, 2023, to discuss the issues in the case. On March 6, 2023, the District indicated that it completed the investigation and requested a hearing. A hearing was scheduled for March 31, 2023 for the District’s case (See, Transcripts).^[2] On that date, the District did not present a case and stated that it was not defending the Parent’s allegation regarding FAPE (T. 20). The Parent’s case continued on April 17, 2023 and continued on April 27, 2023 and concluded on May 11, 2023. The Parent presented exhibits^[3] and two witnesses by affidavit. The record closed on May 22, 2023. There were four extensions of the compliance timelines to allow for investigation, and then to accommodate witnesses.

FINDINGS OF FACT

The Student is a [Redacted] year old, [Redacted] grade student who attends the Private School during the 2022/23 school year (P-Ex. A). The Student is diagnosed with Attention-Deficit/Hyperactivity Disorder (ADHD), predominantly inattentive presentation; and a Specific Learning Disorder with Impairment in Reading, Written Expression, and Mathematics (P-Ex. A; C). She has been classified as a student with a Learning Disability (P-Ex. A; R-6).

In April 2021, the District’s Committee on Special Education (“CSE”) developed an IESP for the Student that mandated SETSS for seven periods per week and counseling once a week individually for 30 minutes, and once a week for thirty minutes in a group (P-Ex. Q-1). The IESP covered the time period of May 1, 2021, to April 26, 2022 (P-Ex. Q-1). The District did not provide the counseling or SETSS, and instead gave the Parent authorization forms to find their own providers (P-Ex. B; Q-1). The Parent called numerous providers on the list provided by the District however, no one was available to provide services (P-Ex. Q-1). As a result, the Student did not receive any SETSS or counseling services during the 2021/22 school year (P-Ex. Q-2).

On January 31, 2022, the Parent received an email from the CSE asking what school the Student attended and a few days later, the Parent received notice that the CSE scheduled an IEP meeting for the Student on February 15, 2022 (P-Ex. D; E; Q-2). Shortly thereafter, the District cancelled the February 15th meeting because they had invited a representative from the wrong school (P-Ex. E-3; Q-2). On March 14, 2022, the District sent the Parent another notice of a meeting to be held on April 4, 2022 (P-Ex. F-2; Q-2). Once again, they invited a representative from the wrong school (P-Ex. Q-2). The same day of the notice, the Parent informed the District of their repeated failure to invite the proper school, and again instructed them to contact the Student’s current school (P-Ex. F; Q-2). In that email communication, the Parent gave the District their correct address and requested assistance in finding SETSS and counseling providers (P-Ex. F; Q-2).

On April 4, 2022, the Parent received a notice of placement and a letter of intent with instructions to sign the letter (P-Ex. G; Q-2). The Parent found out that the CSE had met and developed an IEP without the Parent or the Student’s school being present (P-Ex. G; Q-2-3). On May 11, 2022, the Parent wrote to the CSE requesting that they hold an emergency meeting to develop an IEP for the 2022/23 school year (P-Ex. H; Q-3). The CSE did not respond (P-Ex. Q-3). On August 18, 2022, the Parent sent a letter notifying the CSE that she was still awaiting an IEP meeting for the Student and that absent the offer of an appropriate program and placement from the CSE, they would be enrolling the Student at the Gateway School for the 2022/23 school year and would be seeking funding (P-Ex. J; Q-3). The Parent also requested special transportation, and compensatory services for the District’s failure to fulfill the Student’s recommended SETSS and counseling mandate during the 2021/22 school year (P-Ex. J; Q-3-4). The Parent unilaterally placed the Student at the Private School for the 2022/23 school year (P-Ex. Q-4). The Parent testified that they are unable to pay for the full tuition before the school year ends and are obligated to pay as per the enrollment contract (P-Ex. I; L; Q-4).

CONCLUSIONS OF LAW

The Individuals with Disability Education Act (“IDEA”) is comprehensive statutory framework established by Congress to ensure that students with disabilities are afforded FAPE. See, 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 US 49 (2005). 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.” Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 188 (1982). In order to demonstrate that 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.” See, Application of Child with a Disability, Appeal No. 05-061, quoting, Rowley at 206. The student's recommended program must also be provided in the least restrictive environment with non-disabled peers. See, Walczak v. Florida Union Free Sch. Dt., 142 F.3rd 119 (2nd Cir. 1998).

Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally, Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Rowley, at 206-07).

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. See, Walzczak, supra; Id., Appeal No. 00-005. “The initial procedural inquiry is no mere formality.” Walczak, at 129. “Adequate compliance with the procedures prescribed [by IDEA] would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP.” Rowley at 206. For an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression. This progress, must be meaningful; i.e., more than mere trivial advancement. Walczak, supra.

In Endrew F. v. Douglas County School District, 580 U.S. __, 14 (2017), the Court held that, “[t]o 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, as a focus on the particular child is at the core of the IDEA. The instruction offered must be “specially designed” to meet a child’s “unique needs” through an “individualized education program.” §§1401(29), (14) (emphasis added), to reflect the fact that a contemplated IEP must be focused on the “particular child that is at the core of the IDEA”. In such case, the school is still required to ensure the student is given an IEP that requires not just academic but also functional progress and, although the goals may differ for students, each child must have an IEP that includes goals and services to enable a child to make both academic and functional progress. The court further stated that an IEP “is not a form document. It is constructed only after careful consideration of the child’s present levels of achievement, disability, and potential for growth” §§1414(d)(1)(A)(i)(I)–(IV), (d)(3)(A)(i)–(iv), and that “a student offered an educational program providing “merely more than de minimis progress” from year to year can hardly be said to have been offered an education at all.”

The Court in Endrew further stated that, “[t]he IDEA demands more. It requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Although the Supreme Court declined to elaborate on the definition of “appropriate progress” from case to case, it stated that, “the adequacy of a given IEP turns on the unique circumstances of the child for whom it was created.” Finally, The Supreme Court in Endrew declined to hold, as it declined to hold in Rowley, that “every handicapped child who is advancing from grade to grade . . . is automatically receiving a [FAPE].” Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty v. Rowley, 458 U. S. 176, 203, n. 25 (1982). A Student’s “IEP need not aim for grade-level advancement. But his educational program must be appropriately ambitious in light of his circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives.” Endrew F. v. Douglas 580 U.S. ___ (2017). “It cannot be the case that the Act typically aims for grade-level advancement for children with disabilities who can be educated in the regular classroom, but is satisfied with barely more than de minimis progress for those who cannot.” Id.

Here, the District did not present a case, and therefore failed to meet its burden in demonstrating that FAPE was provided to the Student for the 2021/22 and 2022/23 school years. There was no testimony to describe why the IEP team failed to provide the special education services during the 2021/22 school year, and there was no testimony to explain why the IEP meeting for the 2022/23 school year was held without the Parent or members of the Student’s school. Based on all of reasons above, I find that the District did not provide the Student with FAPE for the 2021/22 and 2022/23 school years.

PARENT’S BURDEN

Parents seeking reimbursement “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate” Gagliardo, at 112; see also, M.S. v. Bd. Of Educ., 231 F.3d 96, 104 [2d Cir. 2000]). “Subject to certain limited exceptions, ‘the same considerations and criteria that apply in determining whether the school district's placement is appropriate should be considered in determining the appropriateness of the parents’ placement…’” Gagliardo, at 112, quoting, Frank G. v. Bd. of Educ., 459 F.3d 356, 364 (2d Cir. 2006). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). When determining whether the parents’ unilateral placement is appropriate, ultimately, the issue turns on whether that placement is “reasonably calculated to enable the child to receive educational benefits” (Frank G., 459 F.3d at 364; Gagliardo, 489 F.3d at 115). A private placement is only appropriate if it provides education instruction specially designed to meet the unique needs of a student (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).

The Supreme Court of the United States has held that the appropriateness of a unilateral placement turns on whether it is reasonably calculated to enable the child to receive educational benefits, which is not limited to a single dispositive factor. Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982). The Second Circuit cited several factors that may be considered evidence that a child is receiving an educational benefit, including grades, test scores, and regular advancement, yet clarified that courts assessing the appropriateness of a parent’s unilateral placement must “consider the totality of the circumstances in determining whether that placement reasonably serves a child’s individual needs.” Frank G. 459 F.3d at 364; accord Knable ex rel. Knable v. th Bexley City Sch. Dist., 238 F.3d 755 (6 Cir.2001) (holding that a unilateral private placement with small classes, where the student made educational progress and grades and behavior improved, was appropriate). Under the IDEA, to meet the requirements for reimbursement, parents do not need to show that a private placement provides every single service required to “maximize their child’s potential.” Frank G. 459 F.3d at 364; See M.S. ex rel. S.S. v. Bd. of Educ., 231 F.3d 96, 102 (2d Cir.2000) (“The test for parents’ private placement is not perfection.”). Parents must only demonstrate that the placement provides “educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.” Frank G. 459 F.3d at 364; Rowley, 458 U.S. at 188–89. “Specially-designed instruction means adapting, as appropriate to the needs of an eligible student under this Part, the content, methodology, or delivery of instruction to address the unique needs that results from the student’s disability.” 8 NYCRR § 200.1(vv). Where “the hearing record shows that [the Private School] did not provide OT or PT...” and the school “provided programs that assisted the student in developing both fine and gross motor skills,” “the lack of these services” is “not sufficient to support a finding that [the Private School] is not appropriate given that these services did not appear to be necessary to the student receiving educational benefits and [Private School] did address the needs to some extent. The student’s primary needs related to his attention and academics, and [Private School]...adequately, if not perfectly, addressed them.” Application of the Board of Education of the Arlington Central School District, Appeal No. 16- 023 at 24-25.

A private school placement must be “proper under the Act” (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school must provide an educational program which meets the student’s special education needs. See, Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129. 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 (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (id. at 14). 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.” (Gagliardo, 489 F.3d at 112, quoting, Frank G., 459 F.3d at 364-65). Finding that the District did not provide FAPE to the student during the 2022/23 school year, the burden now shifts to the Parent to prove the appropriateness of the Private School. After reviewing the testimony and evidence provided, I find that they have met that burden. The Parent’s burden is to demonstrate that the Private School provided educational instruction specially designed to meet the unique needs of the Student, which is supported by such services as are necessary to permit the child to benefit from instruction.

The Director of Academic Support (“DAS”) at the Private School testified by affidavit regarding the Student and the Private School (P-Ex. R). As DAS, she participates in IEP meetings, reviews applications, screen students, and collaborates with the team to determine if the student meets the school’s profile and if there is an appropriate class setting (P-Ex. R-2). The DAS supports teachers in applying language-based support for students in all content and skills classes (P-Ex. R-2).

The Private School is a school for children with language-based learning disabilities (P-Ex. R-2). It has a lower school for ages five to ten, and a middle school for grades five through eight (P-Ex. R-2). All students enrolled in the Private School have a language-based learning disability and at least average intelligence; some of the students also have attentional difficulties (P-Ex. R-2). At the Private School the students become skilled, strategic learners and confident self-advocates relying on direct, multisensory instruction and guided by an integrated curriculum, expert faculty teach students the language, literacy, and critical thinking skills that are the foundations for success in mainstream educational settings and beyond (P-Ex. R-2). The Private School provides small classes so that students can experience academic and social success, recognize their strengths, and are empowered to become independent learners (P-Ex. R-2-3).

The middle school has small class sizes of no more than 12 students and one head teacher (P-Ex. R-3). The Head Teacher has a master’s degree in general and special education (P-Ex. R-3). Classes are broken down into smaller groups of 6 to 8 students, for reading, writing, and math (P-Ex. R-3). The smaller classroom ratio provides opportunities for students to work in a group, but also to have the one-to-one support they need to make progress (P-Ex. R-3). The small class ratio enables the teachers to ensure that all the attentional needs are addressed throughout the classroom (P-Ex. R-3). The Private School also provides speech-language therapy and counseling in middle school (P-Ex. R-3).

The Private School embeds language skills throughout all classes to promote learning and progress (P-Ex. R-3). Their curriculum includes researched based explicit instruction for reading and math, which are labeled as “skills,” and for science and social studies, which are called “subjects” (P-Ex. R-3). A skill is the ability and capacity to learn the information such as the ability to decode words in order to read or to know how to find the main idea in a paragraph (P-Ex. R-3-4). Content are the concepts and information pertaining to a particular subject such as social studies or science (P-Ex. R-4). This instruction is provided in a structured, warm, and nurturing environment where students are provided the language skills needed to understand the rich content in their subject and skills classes (P-Ex. R-4).

The Private School addresses reading by using Preventing Academic Failure, a research based multi-sensory systematic phonics approach to teaching reading (P-Ex. R-4). For math, they use Singapore Math, a research based multi-sensory approach to teaching math (P-Ex. R-4). The Private School provides formal professional development for all faculty and staff nine times during the school year (P-Ex. R-4). During sessions, they focus on language development, social development, and how those methods support a students’ growth (P-Ex. R-4). In addition, faculty and supervisors participate in outside professional development courses to learn about current programs and methods to best serve students and to further develop professional expertise in skill and content areas (P-Ex. R-4).

The Private School holds formal staff meetings twice a week to help facilitate collaboration among teachers, related service providers, and staff (P-Ex. R-4). In addition, teachers meet with coaches and supervisors weekly to discuss each student and how best to meet their needs (P-Ex. R-4). The coach meets weekly with classroom teachers to model lessons, discuss how the teaching practices affects a student’s learning curve, supports lesson planning and helps to develop short- and long-term goals (P-Ex. R-4). The teacher implements the goals, teaches all subject and skill areas and is responsible for understanding the individual needs of the students as they become independent learners (P-Ex. R-4). The supervisor observes the teacher and provides feedback concerning the teacher’s use of explicit teaching practices and how the goals are being met as well as the teacher’s classroom management skills (P-Ex. R-4-5). At the beginning of the school year, the Private School holds a formal meeting for each student to discuss the student’s areas of strength and weaknesses (P-Ex. R-5). Over the course of the year, teachers issue two report cards that describe the students’ progress in all skill and subject areas (P-Ex. R-5). Two formal parent/teacher conferences are held during the year to allow parents and teachers to discuss the students’ progress (P-Ex. R-5). Teachers and parents are also able to communicate daily through email, and parents can request special meetings at any time to discuss a concern or share information (P-Ex. R-5). For the 2022/23 school year, there are 147 students enrolled at the Private School, 101 at the middle school (P-Ex. R-6). The Student is currently attending the Private school’s Middle School for the 2022/23 school year (P-Ex. R-6). The Student was described as a socially motivated and cooperative, with language-based learning disabilities and attentional struggles (P-Ex. R-6). All of the of the students in the skill-based classes had classifications of Speech-Language Impaired, Other Health Impaired, or Learning Disabled (P-Ex. R-7). In Reading and Writing, there were seven students (P-Ex. R-7). At the beginning of the school year, the Student was at a late Fourth grade level in reading and a Fourth grade level in writing (P-Ex. R-7). The Student is grouped with students by similarity of need and academic deficits, ensuring that instruction was always delivered in a manner consistent with her needs (P-Ex. R-7). During small-group instruction, the Student is in a group of seven students who are also at a late Fourth to Fifth Grade level (P-Ex. R-7). In Reading, the Student is working on increasing her vocabulary, decoding and encoding skills, and applying newly-learned words to her reading comprehension (P-Ex. R-7). She is also gaining facility with a variety of reading comprehension skills such as distinguishing between relevant and irrelevant details, making inferences, and taking perspectives (P-Ex. R-7). She is provided with graphic organizers, decoding, and encoding lessons from PAF (Preventing Academic Failure) which is based on an OrtonGillingham multisensory approach to reading (P-Ex. R-7). The Student’s work in Writing in began with developing her skills at the sentence-level, then moved to more complex sentences, leading to her creation of a single paragraph outline (P-Ex. R-7). She is provided with sequential lessons from Writing Revolution Program (formerly the Judith Hochman Writing Program) and graphic organizers to increase these writing skills (P-Ex. R-8).

In math, the Student is in a group of seven students (P-Ex. R-8). The Student is at a beginning 6th grade level and grouped with students at a similar functional math level (P-Ex. R-8). The Student is developing her comprehension of mathematical concepts such as square and cube roots, exponents, representing negative numbers; and geometry concepts such as measuring angles and identifying polygons (P-Ex. R-8). Teachers use Singapore Math, which is a multi-sensory math program, and she is supported with color-coding for algebraic equations, 1:1 support, and multisensory hands-on instruction (P-Ex. R-8).

The Student also receives the related services of Speech-Language therapy, once per week for 45 minutes in a group of six students and her goals include increasing her vocabulary, improving her verbal reasoning skills in the context of the curriculum, and developing and improving her strategies for social and interpersonal competence (P-Ex. R-8). The Student’s attention deficits are also addressed during speech-language therapy (P-Ex. R-8). The Private School’s clinical interventions include redirection, increased response time, repetition, and clarification of linguistic information when given multi-step, verbal directions (P-Ex. R-8). The Student is making progress in speech-language therapy and is able to generate oral narratives with appropriate content and syntax for topics of interest and she interacts with members of the group in reciprocal conversations (P-Ex. R-9).

The Student also receives Counseling once per week in a group of six students (P-Ex. R-9). Her counseling work has focused on social/pragmatic communication skills, independent problem solving, and working cooperatively with others (P-Ex. R-9). She has made some progress in all areas and will benefit from continuing her weekly counseling sessions during the second part of the school year (P-Ex. R-9). With respect to the student’s progress at the Private Schools, 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 (Gagliardo, 489 F.3d at 115, citing Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21, 26-27 [1st Cir. 2002]). Here, the Student has made progressvduring the 2022/23 school year (P-Ex. R-9). She is a willing participant in all her programs and classes (P-Ex. R-9). She has made significant gains socially (P-Ex. R-9). In reading, the Student is able to decode and encode multi-syllabic words that follow typical patterns, she can use newly learned adjectives to answer explicit questions and describe character traits and she can name important plot details at a fifth grade level with minimal support (P-Ex. R-9). In writing, she is using conjunctions to expand her sentences and she can fill in a single paragraph outline independently and then generate a narrative with minimal teacher support (P-Ex. R-9). In math, she is able to add, subtract, multiply and divide negative whole numbers and answer single step word problems at a beginning 6th grade level (P-Ex. R-9). Based on all of the above, I find that the Private School is an appropriate placement for the Student for the 2022/23 school year.

EQUITABLE CONSIDERATIONS

Equitable considerations are relevant in determining relief “because the authority to grant reimbursement [under the IDEA] is discretionary.” Frank G., 459 F.3d at 363-64 (quoting, Burlington, 471 U.S. at 374). 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 and communicated their concerns with the District.

DECISION

Based on a review of the record and the facts mentioned above, I find that the District failed to provide the Student FAPE during the 2021/22 and 2022/23 school years. I find that the Student is entitled to compensatory services for the services the District failed to provide during the 2021/22 school year. I further find that the Parent’s unilateral placement at the Private School was appropriate and that the Parent is entitled to reimbursement / direct funding for the 2022/23 school year. I have considered the Parent’s other requests for relief in the Due Process Complaint and they have been denied for lack of evidence in the record.

ORDER

Based upon the Findings of Fact and Conclusions of Law, it is hereby ordered: 1) ORDER THAT, the District shall reimburse the Parent and/or directly pay the Private School for all tuition and fees for the Student’s unilateral placement at the Private School during the 2022/23 school year and provide door-to-door special transportation; 2) ORDER THAT, the District shall provide the Student with a bank of 280 hours of SETSS services, which shall not expire, to be provided by a licensed/certified provider of the Parent’s choosing, at an enhanced rate; 3) ORDER THAT, the District shall provide the Student with a bank of 40 hours of counseling services, which shall not expire, to be provided by a licensed/certified provider of the Parent’s choosing, at an enhanced rate.

SO ORDERED

DATED: June 5, 2023

Vanessa M. Gronbach

Vanessa M. Gronbach, Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

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

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

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

EXHIBITS

DISTRICT EXHIBITS

None

PARENT EXHIBITS

A. DPC 11/22/22 7 pages

B. Email from District 10/27/21 1 page

C. Neuropsychological Evaluation 1/14/22 10 pages

D. Correspondence with CSE 1/31/22 2 pages

E. Email from CSE 2/3/22 3 pages

F. Correspondence with CSE 3/14/22 3 pages

G. Correspondence with CSE 4/4/22 3 pages

H. Letter to CSE 5/11/22 3 pages

I. Enrollment Contract 6/17/22 3 pages

J. Ten Day Notice 8/18/22 3 pages

K. TDN Confirmation 8/18/22 1 page

L. Tuition Affidavit 12/7/22 2 pages

M. Counseling Progress Report 3/2/23 2 pages

N. Speech Language Report 3/9/22 2 pages

O. Semester 1 Report Card 22/23 15 pages

P. District Operating Manual Related Services undated 2 pages

Q. Parent Affidavit undated 5 pages

R. Affidavit of Director 4/11/23 10 pages

Footnotes

[1] Exhibits shall be referred to as follows: “P” for Parent Exhibit; “D” for the District’s or Department’s Exhibits.

[2] Reference to the Transcript shall be referred to as “T”.

[3] A more detailed list of exhibits is attached.