New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 595976 - NYC: 245628

REDACTED

FINDINGS OF FACT & DECISION

Case No.: 245628

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: February 3, 2023

Hearing Dates: May 19, 2023

May 30, 2023

June 8, 2023

Actual Record Close Date: June 17, 2023

Decision Date: July 1, 2023

Hearing Officer: Vanessa M. Gronbach, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

MAY 19, 2023

For the Student:

[Redacted], Esq., Parent Attorney

[Redacted], Parent Student

[Redacted], Private School School Psychologist

For the Department of Education:

[Redacted], Esq., District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

MAY 30, 2023

For the Student:

[Redacted], Esq., Parent Attorney

For the Department of Education:

[Redacted], Esq., District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

JUNE 8, 2023

For the Student:

[Redacted], Esq., Parent Attorney

[Redacted], Parent Student

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 February 3, 2023, regarding the 2022/23 school year (P-Ex. B) ^[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 failing to provide an appropriate program and placement (P-Ex. B). The Parent requested tuition reimbursement / direct payment for their unilateral placement of the Student at the Private School and transportation for the 2022/23 school year (P-Ex. B). The Parent also filed a DPC on February 3, 2023, regarding the 21/22 school year (P-Ex. A). That DPC also alleged a denial of FAPE and requested the same relief (P-Ex. A).

PROCEDURAL HISTORY

The undersigned was appointed as hearing officer to both matters on February 6, 2023. Prehearing conferences were held for both matters on March 13, 2023, to discuss the issues in the case (See, Transcripts).^[2] Status conferences were then held in April and May where the matters remained under investigation. The Parent requested that a hearing be scheduled, and the matters consolidated. An Order of Consolidation was filed on May 3, 2023. The hearing began on May 19, 2023, and concluded in three days on June 8, 2023. The District presented documents but did not present any witnesses. The Parent presented exhibits^[3] and two witnesses by affidavit. The record closed on June 17, 2023. There were three extensions of the compliance timelines to allow for investigation and then to accommodate witnesses.

FINDINGS OF FACT

The Student is currently a [Redacted] year old student who attended the Private School during the 2021/22 and 2022/23 school years (P-Ex. A; B). The Student is diagnosed with Autism; Learning Disabilities in Reading, Writing, and Math; Attention Deficit Hyperactivity Disorder (“ADHD”); and a Developmental Coordination Disorder (P-Ex. A; E; F).

The Parent testified by affidavit that the Student began having learning difficulties in kindergarten, was evaluated by the District and privately, and had an IEP by first grade (P-Ex. T-1). At that time the Student was diagnosed with ADHD (P-Ex. T-1). By third grade, the Student was not keeping with their peers and was not making reading progress (P-Ex. T-1). Through elementary school they attended a public school in an integrated co-teaching class (“ICT”) (P-Ex. T-1). In 5th grade the Student was again privately evaluated and diagnosed with Autism, learning disabilities in reading, writing, and math, ADHD, and developmental coordination disorder (P-Ex. E; T-1). The Student had strong cognitive abilities but was struggling academically and socially (P-Ex. T-1). The neuropsychological evaluation confirmed that the Student needed a smaller learning environment and a more specialized program than an ICT class (P-Ex. T-2).

For the 2020/21 school year, the District’s CSE recommended a deferral to the Central Based Support Team (“CBST”) to find a non-public school (P-Ex. T-2). Only one non-public school contacted the Parent but wanted to reduce the recommended related services (P-Ex. T-2). The Parent informed the District that they needed another placement, however they did not receive any other options for placement (P-Ex. T-2). The Parent then made the decision to unilaterally place the Student at the Private School in late August 2020 (P-Ex. T-2).

The Parent attended an IEP meeting in June of 2021 for the Student’s program for the 2021/22 school year (D-Ex. 5; P-Ex. T-2). Without any new or updated evaluations, the District changed its recommendation back to an ICT class with SETSS (D-Ex. 5; P-Ex. T-2). The Parent explained that the Student had attended an ICT class before the 2020/21 school year and the team had deferred the Student to the CBST because they were not making progress (P-Ex. T-2). The Parent disagreed with the ICT recommendation and wanted a smaller and more supportive program for the Student (P-Ex. T-2). The Student remained at the Private school for the 2021/22 school year (P-Ex. A; T). The Parent testified that during the 2021/22 school year, the Student made a lot of growth educationally and socially (P-Ex. T-3).

The Parent attended an IEP meeting for the 2022/23 school year in May 2022 (D-Ex. 2; P-Ex. T-3). Again, the District did not present any new or updated evaluations, but they reviewed the reports from the Private School (P-Ex. T-3). The Parent and representatives from the Private School shared that the Student continued to need a small classes and individual support (P-Ex. T-3). In the end, the District again recommended an ICT class with related services (P-Ex. D-Ex. 2; T-3). The Student remained at the Private School for the 2022/23 school year (P-Ex. B). The Parent testified that the Student is thriving at the Private School this 2022/23 school year (P-Ex. T-4). The Student respond well to the smaller classes, with reinforcements and a great deal of support (P-Ex. T-4). The Parent testified that they paid the tuition for the 2021/22 school year, but still owed the tuition costs for the 2022/23 school year (P-Ex. T).

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 prong I case for any of the school years alleged, 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. Based the undisputed facts alleged by the Parent in their affidavit testimony, 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 2021/22, and 2022/23 school years, 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 School Psychologist (“SP”) at the Private School testified regarding the Student and the School (P-Ex. P). The Private School is an independent, progressive, not for profit school that serves both general education and special education students in grades Kindergarten through 12 (P-Ex. J; P-2). The Private School is accredited by the New York State Association of Independent Schools (P-Ex. P-2). The Private School values emotional intelligence, student connections with teachers and staff, collaboration amongst teachers and service providers, handson and project-oriented learning, and individualizing instruction and support for each student (P-Ex. P-2). Through the special education program, the Private School works with students who have language processing, reading, and writing disabilities, as well as attention and executive functioning difficulties (P-Ex. P-2). The mission of the Private School is to meet the needs and potential of each individual child regardless of their learning disability status, and they have the ability to individually design an appropriate program for each student in light of their unique profile (P-Ex. P-2). The special education program at the Private School was developed to target the areas of concern with small class size, academic skill building, remediation, support, and individualized instruction when needed (P-Ex. P-2). By creating an individualized program that challenges students without overwhelming them, students develop more confidence and stronger self-efficacy, increasing their motivation and efforts to succeed (P-Ex. P-2). As their academic skills improve and they feel more prepared to take on greater challenges, they are able to better strive toward meeting their full potential (P-Ex. P-2-3).

Students in the special education program start and end their day in a small group Advisory, where they are assisted in readying themselves for the day ahead and then packing up at day’s end (P-Ex. P-3). They are able to take a smaller English Language Arts class, a small Math class, and additional Academic Enrichment classes which provide another layer of support (P-Ex. P-3). Workload modifications and accommodations such as extended time and separate location are also available as needed (P-Ex. P-3). Counseling and speech and language services are also available and provided during the school day (P-Ex. P-3).

The middle school at the Private School has 102 students in the 2022/23 school year, with

35 students in the 8th grade and 7 enrolled in the 8th grade special education program (P-Ex. P-3). The Private School employs multidisciplinary staff that include an administrative director, special education teachers, a speech and language therapist, school psychologists, and administrative staff (P-Ex. P-3). Most of the faculty have a Master’s Degree and extensive training in special education (P-Ex. P-3). Most either hold permanent NYS certifications in General Education (with supplemental training), Special Education, Literacy, School Psychology, or Speech and Language (P-Ex. P-3). The faculty meets twice week to discuss students, their progress, and any changes that need to be made to programs or classes (P-Ex. P-3). Teachers also engage in continued professional development (P-Ex. P-4). The curriculum is informed by New York State learning standards and teachers rely heavily on multi-sensory and multi-modal methods of instruction and provide children with a rich variety of materials, experiences, and literature to learn concepts and build skills (P-Ex. P-4). The Private School measures student progress using a variety of sources of information, including formal and informal testing, teacher-designed measures, assignments, class participation, and projects (P-Ex. P-4). Teachers use the results to assess how well each student is progressing and adapt instructional pace or methods to better meet individual needs (P-Ex. P-4).

During the 2021/22 school year, the Student was a 7th grader in the special education program at the Private School (P-Ex. P-5). The SP testified that the Student exhibited significant weaknesses in sustained attention, worktime stamina, executive functioning, and handwriting difficulties (P-Ex. P-5). Socially and emotionally, the Student had difficulty expressing their emotions to others, reading conversational cues, approaching novel friends, and initiating plans (P-Ex. P-5). Altogether, their behavioral, organizational and social challenges, profoundly impacted the Student’s academic performance and require extensive and specialist support (P-Ex. P-5). During that school year, their limitations with attention and executive functioning resulted in challenges accessing curriculum, completing work independently, and participating appropriately in a classroom setting (P-Ex. P-6). The Student required close 1:1 teacher support in order to stay engaged, frequent check-ins, preferential seating, visual aids, verbal prompts, and minimal distractions (P-Ex. P-6). Individual support helped with executive functioning including mapping out timelines, breaking assignments into smaller chunks, clarifying steps, and keeping track of materials (P-Ex. P-6). Directions often needed to be repeated, broken down into small steps and presented visually (P-Ex. P-6). Brainstorming ideas aloud with a teacher and creating visual organizers with steps helped the Student initiate their work and get their thoughts down effectively (P-Ex. P-6).

Socially, the Student required support building friendships and conversational skills (P-Ex. P-7). They required support in counseling to build skills such as acting interested, asking follow-up questions, and initiating conversations (P-Ex. P-7). The Student also required counseling to support them emotionally and how to manage their emotions (P-Ex. P-7). They could become overwhelmed or angry about the amount of schoolwork, which impacted their academics (P-Ex. P-7).

Academically, the Student struggled with reading, specifically completing reading assignments and maintain meaning (P-Ex. P-8). In writing, the Student struggled to write independently, with proofreading and mechanical and grammatical errors (P-Ex. P-8). Their handwriting deficits were also addressed and the Student required assistive technology (P-Ex. P-8). Prompting, graphic organizers, sentence starters, 1:1 conferencing, checklists, and clear and concise instructions were used to support their writing deficits (P-Ex. P-8). The Student was placed in an ELA class of 8 students, where they received individual and small group support (P-Ex. P-9-10). They also received support for organization, graphic organizers, visuals, scaffolded questions, text to speech software, audiobooks and breaking assignments into small manageable steps, frequent prompts, preferred seating, and extended time (P-Ex. P-10-11). Push-in support was provided by a speech language pathologist in both ELA and Math (P-Ex. P-10).

In math, the Student had difficulty writing out the steps to problems, taking notes, recognizing familiar math concepts, and their working memory and attention difficulties affected their performance (P-Ex. P-9). The Student required repetition, practice, scaffolding, notes and example problems to address their math deficits (P-Ex. P-9). The Student was placed in an 8:1 class for math as well (P-Ex. P-11). The pace was individualized, with plenty of repetition, teacher models were used for calculations and staying organized, and word problems were scaffolded (P-Ex. P-11). The Student also attended an enrichment class four times a week to additionally address their reading, writing and math needs (P-Ex. P-11; P-14-15). The enrichment class used Orton-Gillingham methodologies and reinforced auditory processing and auditory memory abilities (P-Ex. P-14). Their advisory class had 8 students and 1 teacher, and served as a twice daily check-in to address their social-emotional needs and address executive functioning, including review of schedules (P-Ex. P-9).

The Student also attended an inclusion Science class of 16 students and 1 teacher, which allowed the Student to interact with grade-level mainstream peers and exposed them to grade level content (P-Ex. P-12). The Student required additional modifications and accommodations, including outlines, extra time, frequent 1:1 check-ins, prompts, scaffolding, models, and varied multimodal assessments to keep up with the material (P-Ex. P-12). Similarly, the Student was also placed in a 16:1 inclusive social studies class, where lessons were multi-sensory and also included modifications and supports (P-Ex. P-13). The Student also received 1:1 counseling once per week for 30 minutes (P-Ex. P-13). Sessions focused on building social skills, executive functioning coaching, self-monitoring skills and brainstorming strategies to stay on top of school work (P- Ex. P-13).

During the 2022/23 school year, the Student attended an advisory class of 11 students which continued to serve as a check-in at the beginning and end of the school day to address their emotional, behavioral and executive functioning deficits (P-Ex. P-16). The Student was placed in an ELA class of 12 students and 1 teacher, which had similar supports as the 7th grade ELA class including graphic organizers, frequent check-ins, scaffolded questioning, audiobooks, frequent prompts, planning and organizational supports (P-Ex. P-17). To address the Student’s writing needs, two 50-minute writing classes in a group of 4:1, were added to their schedule (P-Ex. P-17). The class provided direct, small group instruction on grammar, punctuation, spelling, and vocabulary (P-Ex. P-17).

For math, the Student was in a 10:1 class that again was similar to the 7th grade math class (P-Ex. P-17). Instruction was presented at an individualized pace with plenty of repetition, teacher models for calculations, organizational help, teacher conferences, and scaffolded problem solving (P-Ex. P-18). The Student again attended an additional enrichment class in a group of 7:1 to address math and science (P-Ex. P-18). The Student also attended an inclusion science and social studies class, in a group of 19:1 (P-Ex. P-18-19). Modifications and accommodations were provided to support the Student in the inclusion classes (P-Ex. P-18-19). The Student continued to receive individual counseling to address their social emotional needs, which included Dialectical Behavior Therapy skill building (P-Ex. P-19). With counseling, the Student learned skills for emotional regulation, distress tolerance, coping skills, and made progress with socialization and friendships (P-Ex. P-20). Group counseling was added to further social skills and practice with peers (P-Ex. P-20).

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 made progress during the 2021/22 and 2022/23 school years (P-Ex. K; L; M; N; O). They made improvements in reading, writing, math and with their social emotional deficits (P-Ex. P-14-15; P-17; P-21). Based on all of the above, I find that the Private School was an appropriate placement for the Student for the 2021/22 and 2022/23 school years.

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 further find that the Parent’s unilateral placement at the Private School was appropriate and that the Parent is entitled to funding for the 2021/22 and 2022/23 school years. 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 2021/22 and 2022/23 school years.

SO ORDERED

DATED: July 1, 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. Request for Impartial Hearing 21-22 2/3/23 5 pages

B. Request for Impartial Hearing 22-23 2/3/23 6 pages

C. Ten Day Notice 8/21/21 21-22 3 pages

D. Ten Day Notice 8/22/22 22-23 3 pages

E. Neuropsychological Evaluation 1/14/20 22 pages

F. Neuropsychological update 5/17/20 19 pages

G. Tuition Information 21-22 3 pages

H. Tuition Information 22-23 4 pages

I. Attendance 21-22 1 page

J. Program Description Undated 1 page

K. Progress Report, Tri 1 21-22 21-22 5 pages

L. Progress Report, Tri 2 21-22 21-22 5 pages

M. Progress Report, Tri 3 21-22 21-22 6 pages

N. Progress Report, Tri 1 22-23 22-23 8 pages

O. Progress Report, Tri 2 2 2-23 22-23 8 pages

P. Affidavit of Unilateral Placement 5/15/23 22 pages

Q. Student Schedule 21-22 1 page

R. Student Schedule 22-23 1 page

S. Tuition contract 2/23/21 21-22 3 pages

T. Parent Affidavit of Testimony Undated 4 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.