NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
STATE EDUCATION DEPARTMENT OF NEW YORK
X
In the Matter of a Complaint Pursuant to Part 200 of the Regulations of the Commissioner of Education Regarding,
STUDENT[1], a minor, by and through his/her Parent(s),
Petitioners
-against-
NEW YORK CITY DEPARTMENT OF EDUCATION,
Respondent.
X
FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION
INTRODUCTION AND PROCEDURAL BACKGROUND
This matter came before the hearing officer by way of a due process complaint filed by the Parent on December 12, 2022. An amended due process complaint was filed by the Parent on May 9, 2023. No written response was provided by the Respondent, the New York City Department of Education (hereinafter “DOE”, “District” or “Respondent”). A hearing was held regarding this matter on May 2, 2023, and August 16, 2023. It was a closed hearing and the Petitioners were represented by [REDACTED]. Respondent was represented by [REDACTED]. The record was closed on August 21, 2023.
In the due process complaint, the Parent requested tuition reimbursement for a unilateral placement at the [REDACTED] (“[REDACTED]”) covering the 2021-2022 and 2022-2023 school years.
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 the New York State Education Law, Educ. Law Art. 89 § 4404 et seq., and its implementing regulations, 8 N.Y.C.R.R. § Part 200.
BACKGROUND
Student is a [REDACTED]-year-old child mandated for a 12-month school year who is classified as a student with a Other Health Impairment. The circumstances which gave rise to the current due process complaint involved the alleged failure of the CSE to review the Student’s current IEP, the CSE’s failure to request any updated evaluations for the Student and the CSE’s failure to recommend an appropriate program for the Student for the 2021-2022 and 2022-2023 school years.
ISSUES
1) Whether Student was denied a FAPE for the 2021-2022 and 2022-2023 school years by the failure of the CSE to request updated evaluations for the Student, by failing to develop an appropriate IEP for the Student for the 2021-2022 and 2022-2023 school years and/or by failing to recommend or provide Student an appropriate placement.
2) Whether the Parent’s unilateral placement(s) of the Student for the 2021-2022 and 2022-2023 school years was appropriate to the Student’s needs.
3) Whether the equities favor reimbursement.
Petitioner requests relief in the form of an order directing the District to fund the tuition at [REDACTED] for the 2021-2022 and 2022-2023 school years.
EVIDENCE SUBMITTED AT HEARINGS
DISTRICT’S CASE
The District introduced no exhibits.
PARENT’S CASE
The Parent introduced twenty-four (24) exhibits into evidence which included the following:
P-A: TDN (21/22)
P-B: TDN (22/23)
P-C: Enrollment Contract (21/22)
P-D: Tuition Affidavit (21/22)
P-E: Proof of Payment (21/22)
P-F: Class Schedule (21/22)
P-G: Enrollment Contract (22/23)
P-H: Tuition Affidavit (22/23)
P-I: Proof of Payment (22/23)
P-J: Class Schedule (22/23)
P-K: Program Description
P-L: Neuropsychological Evaluation
P-M: Parent Email to CSE
P-N: Updated Neuropsychological Evaluation
P-O: Email to School
P-P: Letter from Psychiatrist
P-Q: Progress Reports (21/22)
P-R: Speech Progress Report
P-S: Progress Reports (22/23)
P-T: Affidavit – School Representative
P-U: Affidavit – School Representative
P-V: Affidavit – Parent
P-W: Amended DPC
P-X: End of Year Report – 22-23
WITNESSES
The District presented no witnesses.
The Parent presented three witnesses, [REDACTED], Upper School Director at [REDACTED], [REDACTED], Assistant Head of School at [REDACTED], and the Parent. In lieu of direct examination, the Parent produced affidavits of the witnesses.[2] The District waived its right to cross-examine the witnesses.
FINDINGS OF FACT
After considering all of the evidence, as well as arguments of both sides, this Hearing Officers Findings of Fact are as follows:
1) The Student was a [REDACTED]-year-old child entering the 2021-2022 school year.[3] The Student is classified as a student with a Other Health Impairment. [4]
2) The District appeared in this matter. However, the District did not present a Prong I case. As a result, I am constrained to find that the District has conceded that it did not conduct an appropriate review, that it failed to conduct relevant evaluations, failed to develop an appropriate IEP, and/or did not offer the Student an appropriate placement for the 2021-2022 and 2022-2023 school years. As a result, there is no question that the Student was denied a FAPE for the 2021-2022 and 2022-2023 school years.
3) On October 29, 2021, the Parent sent the District a ten-day notice stating their intention to unilaterally place the Student at [REDACTED] for the 2021-2022 school year.[5] There is no evidence in the record to suggest that the District ever responded to that notice.
4) On August 24, 2022, the Parent sent the District a ten-day notice stating their intention to unilaterally place the Student at [REDACTED] for the 2022-2023 responded to that notice.
5) During the 2021-2022 and 2022-2023 school years, Student attended [REDACTED]. [7]
6) For the 2021-2022 school year, the Parent submitted documentation to demonstrate that the Student made progress at [REDACTED].[8] In addition, the testimony of the school representatives and the Parent detailed the Student’s progress, both academically and otherwise, and reflected that the Student did well at [REDACTED].[9] The District did not challenge any of this evidence.
7) For the 2022-2023 school year, the Parent submitted documentation to demonstrate that the Student made progress at [REDACTED].[10] In addition, the testimony of the school representative and the Parent detailed the Student’s progress, both academically and otherwise, and reflected that the Student did well at [REDACTED].[11] The District did not challenge any of this evidence.
8) For the 2021-2022 and 2022-2023 school years, the Parent submitted documentation which amply demonstrated that [REDACTED] was an appropriate placement for the Student.[12] In addition, and as stated above, the testimony of the 6 P-B school representatives set forth the various ways in which [REDACTED] had created a program which was specifically tailored to address the Student’s unique needs. [13]
9) For the 2021-2022 school years, the Parent provided documentation that verified that the Parent was contractually obligated to pay the tuition, inclusive of related services, at [REDACTED] which totaled seventy-two thousand seven hundred twenty-five dollars ($72,725.00).[14] For the 2022-2023 school years, the Parent provided documentation that verified that the Parent was contractually obligated to pay the tuition, inclusive of related services, at [REDACTED] which totaled seventy-five thousand seven hundred thirty dollars ($75,730.00). [15]
10) The District sought a reduction in the Parent’s tuition reimbursement claim for the 2021-2022 school year upon the grounds that the Parent did not seek the District’s assistance until the Parent sent a letter to the District on July 7, 2021.[16] However, there is no question that the Parent had been actively seeking the District’s assistance for a considerable time prior to that.[17] In fact, in November 2020, during the course of the 2020-2021school year, the Parent obtained an independent neuropsychological evaluation.[18] That evaluation was forwarded to the District and the parties agreed during the hearing that an IEP meeting was held sometime in March 2021 and that at that meeting, the District continued to maintain that the Student was not eligible for special education services despite the broad scope of recommendations for support contained in that evaluation. [19]
11) The Parent then obtained an updated neuropsychological evaluation in June 2021.[20] By the letter dated July 7, 2021, the Parent requested the District conduct an IEP meeting to reconsider its decision to find the Student ineligible for special education services.[21] The CSE did not convene that meeting until October 2021. [22]
The District conceded during the hearing that this letter constituted a consent by the Parent for the District to evaluate the Student. On the other hand, the District made no attempt to explain why it took over three months to convene the IEP team or why it completely failed in fulfilling its statutory obligation to evaluate the Student subsequent to the receipt of the Parent’s July 2021 letter. Rather, the District argued that it did, in fact, conduct the IEP meeting in a timely fashion (albeit with no new information of its own) pursuant to 8 N.Y.C.R.R. §200.4 and that the Student’s entitlement to a FAPE did not accrue until October 7, 2021.
12) While the District argued that the Parent’s July 7, 2021, letter should be treated as a request for an initial evaluation, the record is devoid of any evidence to suggest that the District treated it as such to the extent that the District failed to conduct any evaluations or assessments of the Student between July 7, 2021 and October 7, 2021, when the District finally convened the IEP team. In the absence of any such evaluative data, it is relatively obvious that the District simply convened the October 2021 IEP meeting to appease the Parent and fully intended to rubberstamp its previous determination that the Student was not eligible for special education services. It is equally clear that without a trace of justification, the IEP team summarily (and continuously) ignored all the findings and recommendations contained in the updated neuropsychological evaluation. In reality, and given the total lack of effort to obtain evaluative data following the Parent’s letter of July 7, 2021, the District clearly treated the Parent’s letter as a request to reevaluate the Student and to revisit its previous decision to deny the Student special education services. Moreover, I so find that the Parent’s initial request was made in October 2020 which culminated in an IEP meeting in March 2021, and then resulted in a reevaluation in October 2021.
13) The District made no effort whatsoever during the hearing to demonstrate that the District complied with its statutory obligations to promptly evaluate and assess the Student.
14) [REDACTED] was an appropriate placement for Student for the 2021-2022 and 2022-2023 school years. The small class sizes allowed the Student to get more individualized attention and support from the Student’s teachers.[23] In addition, all of the Student’s related services were received at [REDACTED].[24] In addition, Student had access to numerous individual and small group sessions where the Student received additional support from teachers within the school. [25]
CONCLUSIONS OF LAW AND DISCUSSION
Denial of FAPE
The purpose of the IDEA is “to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs.” Bd. Of Educ. V. Rowley, 458 U.S. 176, 179-91 (1982). Implicit in the congressional purpose of providing access to a free and appropriate public education (hereinafter “FAPE”) is the requirement that the education to which access is provided be sufficient to confer some educational benefit upon the handicap child. (Id.)
Pursuant to 20 U.S.C. §1401(9) and 34 C.F.R. §300.17 FAPE is defined as follows:
Special Education and related services that are provided at public expense under public supervision and direction and without charge; meet the standards of the SEA… include an appropriate preschool, elementary school, or secondary school education in the State involved; and are provided in conformity with the individualized education program (IEP).
In deciding whether the Respondent provided a student with a FAPE, the inquiry is typically: (1) whether the Respondent complied with the procedures set forth in IDEA; and (2) whether the student’s IEP is reasonably calculated to enable the student to receive educational benefit (Rowley, supra.). Under the second prong, a school district need not maximize the potential of child but must open the door of public education in a meaningful way, and the IEP must provide the opportunity for more than only a “trivial advancement” P. v. Newington Bd. Of Educ., 546 F.3d. 111 (2nd Cir. 2008).
The IEP is “the centerpiece of the statute’s education delivery system for disabled children” Honig v. Doe, 484 U.S. 305, 311 (1988). An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides appropriate specialized instruction and related services. See 34 C.F.R. §300.320 (a). For an IEP to be “reasonably calculated to enable the child to receive educational benefits,” it must be “likely to produce progress, not regression” Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998).
Additionally, each public agency must ensure that, as soon as possible following the development of an IEP, special education and related services are made available to the child in accordance with the child’s IEP. In order to implement the IEP, a team that includes the child's parents determines where the child should be placed based on the child's IEP. Thus, the placement should not dictate the IEP but rather the IEP determines whether a placement is appropriate. Rourke v. District of Columbia, 460 F.Supp.2d 32, 44 (D.D.C. 2006).
The DOE must ensure that the IEP team reviews a student’s IEP periodically, but not less than annually, to determine whether the annual goals for the child are being achieved. Moreover, the DOE must ensure that the IEP team revises the IEP, as appropriate, to address any lack of expected progress toward the annual goals; and the results of any reevaluation or information about the child provided to, or by, the parents. Additionally, if the parent obtains an independent educational evaluation (“IEE”) at public expense, or shares with the public agency an evaluation obtained at private expense, the school district must consider the results of the evaluation, if it meets agency criteria, in any decision made with respect to the provision of FAPE to the child. The IDEA mandates that an IEP be based on the results of the most recent evaluation of a student.
In determining the appropriate placement for a child, preference is given to the least restrictive environment and the appropriate schools nearest the child's home (Id.). The IDEA requires that unless the IEP of a child with a disability requires some other arrangement, the child is to be educated in the school that he or she would attend if the student was otherwise not disabled. In selecting the least restrictive environment, consideration is given to any potential harmful effect on the child or on the quality of the services that he or she needs. A child with a disability is not removed from education in age-appropriate regular classrooms solely because of needed modifications in the general education curriculum. See 34 C.F.R. § 300.116.
When developing the IEP, the District will have evaluations of the child, as a procedural safeguard the parents are entitled, as a matter of Law, an independent education evaluation (IEE) at public expense. 34 CFR § 300.502
Where a school system fails to provide special education or related services to a student with a disability, the student is entitled to compensatory education, “i.e., replacement of educational services the child should have received in the first place.” Reid v. District of Columbia, 401 F.3d 516 (D.C. Cir. 2005). An award of compensatory education “should aim to place the disabled children in the same position they would have occupied but for the school district’s violations of IDEA” (Id.). Compensatory education is a remedy for “past deficiencies” therefore a finding as to whether a student was “denied a FAPE in the relevant time period is a necessary prerequisite to a compensatory education award.” Peak v. District of Columbia, 526 F. Supp. 2d 32 (D.C. Cir. 2007).
Pursuant to New York Education LAW § 4401(c)(1) the DOE shall have the burden of proof, the burden of persuasion, and the burden of production in impartial hearings except for instances where the parent is seeking tuition reimbursement for a unilateral parental placement and in those cases the parent shall have the burden of persuasion and the burden of production as to the appropriateness of the placement. The burden of proof in matters such as this shall only be met upon a fair preponderance of the evidence. The preponderance of the evidence standard requires that the trier of fact to find that the existence of a fact is more probable than its nonexistence. Concrete Pipe & Products of California, Inc. v. Construction Laborers Pension Trust for Southern California, 508 U.S. 602, 622 (1993).
Unlike other standards of proof, the preponderance-of-evidence standard allows both parties to share the risk of error in a roughly equal fashion, except that when the evidence is evenly balanced, the party with the burden of persuasion must lose. Director, Office of Worker’s Compensation Programs v. Greenwich Collieries, 512 U.S. 267, 281 (1994).
In the instant matter, the Respondent presented neither documentary evidence nor witnesses. In the absence of a witness who could defend the IEPs developed for the Student, and, more importantly, explain how the proposed placement was both available and appropriate for the Student, there is insufficient information in this record to conclude that the District provided the Student with a FAPE for the 2021-2022 and 2022-2023 school years. As a result, there can be little question that the Student was denied a FAPE for the 2021-2022 and 2022-2023 school years.
Moreover, in assessing the propriety of the family’s effort to rectify the district’s failing, the decision-maker must take into account the limited range of options available to the family, the degree to which they possessed technical/professional educational expertise, the urgency of the placement timetable, and their natural desire to maximize the student’s potential. The family is under no obligation to seek out a program that skirts just barely above the Endrew minimum, and the district that comes to the table with unclean hands is not in a strong position to argue that, notwithstanding its own derogation of duty, the family should be barred from seeking to remedy the deprivation of FAPE because the program they initiated was too good. One of the fundamental tenets of equity jurisdiction is that ‘he that hath committed iniquity shall not have equity.’
Reimbursement for Unilateral Placement
A court or a hearing officer may order a district to reimburse the parents of a student with a disability for the student’s unilateral private placement if the district failed to make a FAPE available in a timely manner and the unilateral private placement is appropriate, 34 CFR 300, 148 (c); Florence County Sch. Dist. Four v. Carter, 20 IDELR 532 (US 1993). Parents seeking tuition reimbursement as a remedy cannot simply speculate that the assigned school will fail to provide one or more services the student needs to receive FAPE; they must show that the school is not capable of implementing the student’s IEP, M.O. and G.O. v. New York City Department of Education, 65 IDELR 283 (2nd Cir. 2015); Y.F. v. New York City Dept. of Educ., 68 IDELR 92 (2d Cir. 2016, unpublished).
It is true that a unilateral private placement does not need to meet state standards for public education programs to be “appropriate” for reimbursement services, 34 CFR 200.148 (c). However, a unilateral private placement is appropriate for reimbursement purposes if it offers instruction that is specially designed to meet the student’s unique needs as well as the support services the student requires to benefit from that instruction, M.N. v. State of Hawaii, Dept. of Educ., 60 IELR 181 (9th Cir. 2013, unpublished); Ward v. Board of Education of the Enlarged City Sch. Dist. Of Middletown, NY , 63 IDELR 121 (2d Cir. 2014, unpublished).
In the instant matter, the District did not contest the appropriateness of the unilateral placement. Moreover, there was a clear demonstration that the unilateral placement chosen by the Parent was appropriate. Specifically, the evidence demonstrated that [REDACTED] engaged the Student in classes, programs and related services which were specifically tailored to address Student’s needs and challenges. The Student was provided with numerous accommodations and afforded the opportunity to engage in both individual and small group instruction, and related services providers that collaborated with the Student’s classroom teacher. Over the course of the 2021-2022 and 2022-2023 school years, Student demonstrated consistent progress across a broad array of subjects and areas of disability and continued to show marked personal growth.
The singular objection to the Parent’s request for reimbursement made by the District was the District’s claim, as discussed above, that the Student was not entitled to a FAPE until October 7, 2021 and that any award of tuition reimbursement should therefore be prorated to exclude any tuition which accrued between the commencement of the 2021-2022 school year and the time the Student was actually entitled to a FAPE. In that vein, even if the Parent’s letter of July 7, 2021, is considered a request for an initial evaluation, the District then had 60 days to conduct a thorough assessment of the Student. 8 N.Y.C.R.R §200.4(b)(1). Based on the record before me, it does not appear that the District took any action at all to assess the Student. Specifically, there was no physical examination, psychoeducational evaluation, classroom observation, or any other appropriate assessments conducted of the Student. 8 N.Y.C.R.R. §200.4(b)(1)(i-v). Essentially, the District asks for a reduction in the tuition based upon the time that it could have taken action but simply chose not to. Given the broad scope of the Student’s needs, as spelled out in extensive detail in both the initial and updated neuropsychological evaluations, this failure to act was utterly inexcusable.
Perhaps of greater concern is the fact that the District seeks to extract a financial benefit from the fact that it wrongfully and repeatedly determined that the Student was not eligible for special education services. Indeed, even the initial neuropsychological evaluation, conducted in November 2020, recommended a host of supports for the Student. The District was provided a copy of this evaluation, convened the IEP team meeting in March 2021, and, without the benefit of any evaluative data to contradict the recommendations of the evaluator, chose simply to continue to determine that the Student was ineligible for services. The District now seeks to benefit from this decision to the extent that the District forced the Parent to then get another updated evaluation before it would reconvene the IEP team which it then took three months to do. It is unclear why there was a three-month delay since the District clearly did not utilize that time to properly assess the Student. Put another way, were the District allowed to avoid funding any portion of the costs of the unilateral placement as a result of its improper determination that the Student was not entitled to special education services, that would certainly furnish the District with a powerful incentive to deny eligibility to any student for as long as possible to forestall their legal obligations to students under the IDEA. Such a determination would also impose a potentially prohibitive burden upon parents to constantly seek out independent evaluations to challenge the District’s determination of ineligibility.
Here, however, the Parent, who was frustrated with the lack of support from the District, actually did get an independent evaluation in November 2020 which made numerous findings and recommendations. When the IEP team convened in March 2021, the District, well aware of that evaluation (not to mention the Parent’s repeatedly expressed concerns), chose to completely ignore the findings and recommendations contained in that evaluation despite the fact that it had no evaluative data of its own to dispute the findings and recommendations of the Parent’s chosen evaluator. Under the unique circumstances of this case, the District cannot now claim that the Parent first reached out to the District in July 2021 inasmuch as the Parent had been pleading with the District for months (if not longer) to provide the Student with urgently needed services.
Indeed, the District’s argument would certainly be more compelling if, following the receipt of the Parent’s July 2021 letter, the District actively engaged in evaluating the Student. Appeal No. 23-120 (reversing IHO and finding District provided FAPE where District swiftly and actively – albeit not comprehensively - responded to Parent’s initial request for evaluation). Here, even if it assumed that the July 2021 letter from the Parent constituted a request for an initial evaluation, and even giving the District the benefit of the 60 school days to evaluate the Student, the 60 school day period expired on or about September 24, 2021. By that point, and up until the IEP meeting was held some weeks later, the District had done nothing. The only action the District took was to conduct a perfunctory IEP meeting in October 2021 in which it is abundantly obvious that the District fully intended to continue to deny the Student eligibility for special education services. The District’s inaction constituted a complete and total procedural due process violation that unequivocally affected the Student’s right to a FAPE. J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 (2nd Cir. 2000); Appeal No. 23-120. As a result, I see no basis to reduce the Parent’s claim for full tuition reimbursement for both the 2021-2022 and 2022-2023 school years.
It is for this reason that I find that the District is directed to fund the cost of the Student’s 2021-2022 and 2022-2023 placement at [REDACTED] in the amount of $148,455.00.
Equities
Pursuant to 20 U.S.C.A. § 1412(a)(10)(C)(iii), the cost of reimbursement described in clause (ii) may be reduced or denied if:
(I)(aa) at the most recent IEP 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 a free appropriate public education to their child, including stating their concerns and their intent to enroll their child in a private school at public expense; or
(bb) 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 item (aa); (II) 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 section 1415(b)(3) of this title, 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 such evaluation; or
(III) upon a judicial finding of unreasonableness with respect to actions taken by the parents.
As a general rule, a school district may not argue that the “equities are in its favor once it has failed to provide a FAPE or concedes that it has not.” N.R. v. Department of Education of the City of New York, 2009 WL 874061 (S.D.N.Y. 2009). However, where the record demonstrates that the Parent failed to cooperate with the CSE or actively took steps to thwart the District’s ability to develop an appropriate IEP for the Student, it is appropriate for the impartial hearing officer to either reduce or deny the Parent’s request for tuition reimbursement. Neske v. Porter, 2022 WL 3290561 (S.D.N.Y. 2022). In Neske, the Court held,
In determining whether parents have acted unreasonably, courts consider factors including: whether the parents cooperated with the CSE (e.g., providing reports, attending the meeting, participating in the meeting); whether the parents timely notified the school district of their intent to place their child in a private school; whether the parents visited the DOE's proposed placement; whether the parents intended to genuinely consider a proposed public placement, or whether they would have kept their child in private school regardless of the proposed public placement; whether the parents or the DOE unreasonably delayed anything; and the appropriateness of the DOE's conduct.
Id., at 3-4 (citing G.B. v. New York City Dept. of Educ., 145 F.Supp.3d 230, 257 (S.D.N.Y. 2015).
In addition, even where the District fails to present a Prong I case, and even when it does not contest the appropriateness of the unilateral placement, the courts have held that it remains Parent’s burden to demonstrate that the equities are in their favor. R.E. v. New York City Dept. of Educ., 694 F.3d 167, 185 (2nd Cir. 2012); see also Donohue v. New York City Dept. of Educ., 2021 WL 4481344 (S.D.N.Y. 2021).
In the instant matter, the District offered no evidence on the subject of the equities. Moreover, the evidence is clear that the Parent cooperated with all of the District’s efforts to develop an IEP for the Student. I therefore find that there are, in fact, no equitable considerations which would mitigate against full reimbursement. In addition, a review of the evidence in the record reveals that no such equitable considerations exist.
ORDER:
Based on the Findings of Fact and Conclusions of Law and all evidence before the IHO, it is hereby ORDERED that:
1. That the New York City Department of Education is directed to reimburse and/or fund the cost of the Student’s 2021-2022 and 2022-2023 placement at [REDACTED] in the amount of $148,455.00;
2. As to the tuition reimbursement/funding, all payments shall be made directly to the non-public, unilateral placement(s) upon a showing by the Parent that tuition has not been paid out-of-pocket by the Parent. If the Parent can show that out-of-pocket payment to the placement(s) was made by the Parent, then the Parent shall be reimbursed by the District;
3. The district must immediately upon receipt, enter this order on a system that is used to keep track of such orders.
SO ORDERED:
Dated: August 21, 2023 _Steven P. Forbes
Steven P. Forbes
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.
STATE EDUCATION DEPARTMENT OF NEW YORK
X
In the Matter of a Complaint Pursuant to Part 200 of the Regulations of the Commissioner of Education Regarding, STUDENT, a minor, by and through his/her Parent(s),
Petitioners
-against-
NEW YORK CITY DEPARTMENT OF EDUCATION,
Respondent.
X
CERTIFICATION OF RECORD
The record before me as the Hearing Officer in this matter of the following:
1. Administrative Due Process Complaint dated December 12, 2022.
2. Amended Administrative Due Process Complaint dated May 9, 2023.
3. Notice of Hearing and Appointment dated January 23, 2023.
4. Parent’s Exhibits A-X totaling two hundred ten (210) pages.
5. The written transcript of the hearing totaling fifty-five (55) pages.
6. Findings of Fact and Decision dated August 21, 2023.
I, Steven P. Forbes, the Hearing Officer in this matter, do hereby certify that the attached record is accurate and encompasses the entire record in the above-entitled matter as of this date.
I further certify that the materials forwarded herewith are the original or a true copy of the original documents and/or other tangible items that constitute the record in this matter.
EXECUTED this 21st day of August, 2023.
__Steven P. Forbes_______
STEVEN P. FORBES
Impartial Hearing Officer
Footnotes
[1] Personally, identifiable information is attached as a cover sheet to this decision and must be removed prior to public distribution.
[2] P-T; P-U; P-V.
[3] P-W.
[4] Id.
[5] P-A school year. 6 There is no evidence in the record to suggest that the District ever
[7] P-U.
[8] P-Q; P-R.
[9] P-T; P-U; P-V.
[10] P-S; P-X.
[11] P-U; P-V.
[12] P-K.
[13] P-T; P-U.
[14] P-C; P-D; P-E.
[15] P-G; P-H; P-I.
[16] P-M.
[17] P-V.
[18] P-L.
[19] P-W.
[20] P-N.
[21] P-M.
[22] P-V.
[23] P-T; P-U.
[24] Id.
[25] Id.