New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 247354

Student’s Name: Student

Date of Birth: Birthdate

District: School District

Hearing Requested By: Parents

Date(s) of Hearing: May 11, 2023; May 18, 2023; June 2, 2023; June 13, 2023; July

10, 2023

Actual Record Close Date: July 20, 2023

Hearing Officer: Virginia Tillyard Case No. 247354

BACKGROUND AND POSITION OF THE PARTIES

Parents, through counsel, filed a due process complaint (the “DPC”, Ex. A) under the Individuals with Disabilities Education Act, 20 U.S.C. section 1415(f) (the “IDEA”), Section 4404(1) of the New York State Education Law and Section 504 of the Rehabilitation Act of 1973, against the New York City Department of Education (the “DOE”) on April 6, 2023, alleging that the DOE denied Student a free appropriate public education (“FAPE”) for the 2022-23 school year.

In the DPC the Parents allege, among other things, substantive and procedural violations in connection with Student’s IEP dated May 24, 2022 (the “2022 IEP”1). As remedies in the DPC, Parents request funding for Student’s attendance at the Private School for the 2022-23 school year. As more fully discussed below, I find that (a) the DOE failed to meet its burden that it offered Student a FAPE for the 2022-23 school year, (b) the Private School provides Student educational instruction specifically designed to meet Student’s unique needs, and (c) the equities support the Parent’s requested relief, except for a portion of the total tuition.

JURISDICTION

The IDEA and its implementing regulations and Article 89 of the New York State Education Law and its implementing regulations provide jurisdiction for this decision.

PROCEDURAL HISTORY

I was appointed as Impartial Hearing Officer to this case on April 7, 2023. The compliance date was extended at parties’ request so that parties could try and settle this case, but they were unable to do so.

1Ex. 1

At hearing, both parties submitted an exhibit packet. All exhibits were admitted. The Parents presented the affidavit testimony of Student’s mother and the Private School Witness. The DOE’s attorney cross-examined both of Parent’s witnesses. The DOE did not call any witnesses. However, the DOE relied on its exhibits to defend the provision of a FAPE for the 2022-23 school year, cross examined both Parents’ witnesses, and challenged the Parents’ case. The DOE also raised equitable considerations. Both parties made an oral closing.

LEGAL FRAMEWORK

Decisions of impartial hearing officers must be on substantive grounds based on a determination of whether the student received a free appropriate public education (“FAPE”), 8 NYCRR § 200.5(j)(4)(i). Under the IDEA and New York law, where there is procedural violation resulting in a deprivation of educational benefits to a student or the student’s right to a free appropriate public education is significantly impeded, a hearing officer may find that a child did not receive a FAPE.2

The 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 FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written Individualized Education Program (“IEP”) (34 C.F.R. § 300.13). Two purposes of the IDEA 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).

220 U.S.C. § 1415 (f)(3)(E)(ii) states: Procedural issues In matters alleging a procedural violation, a hearing officer may find that a child did not receive a free appropriate public education only if the procedural inadequacies--

(I) impeded the child's right to a free appropriate public education; (II) significantly impeded the parents' opportunity to participate in the decisionmaking process regarding the provision of a free appropriate public education to the parents' child; or

(III) caused a deprivation of educational benefits.

A board of education may be required to pay for educational services obtained for a child by the child's parent, if (1) the services offered by the board of education were inadequate or inappropriate (2) the services selected by the parent were appropriate and (3) equitable considerations support the parent's claim. School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993); see also Frank G. and Dianne G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356 (2d Cir. 2006), cert denied, Board of Educ. of Hyde Park Cent. School Dist. v. Frank G., 2007 WL 2982269 (Oct. 15, 2007). These three conditions constitute the Burlington/Carter test in a tuition reimbursement case.

Burden

School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement (NYS Educ. Law § 4404(1)(c)). The standard required is a preponderance of the evidence. 20 U.S.C. §1415(i)(2)(C)(iii); see also Walczak v. Florida Union Free Sch. Dist., 142 F.3rd 119 (2nd Cir. 1998).

FINDINGS OF FACT AND DECISION

The Student

Student is [REDACTED] years old and for the 2022-23 school year was unilaterally placed in the seventh grade at the Private School, a specialized private school in Brooklyn, New York. He has been diagnosed with ADHD, Anxiety Disorder, Language Disorder, Specific Learning Disorder with Impairment in Reading, Specific Learning Disorder with Impairment in Written Expression, and Dysgraphia.3 He is classified with an Other Health Impairment.4

3Ex. S 4Ex. 1-1.

In addition to being academically delayed, Student has behavioral needs. He consistently struggles with focus. He is solitary during breaks, and even when taking his medication he is “silly” and “disruptive” in class.5

The Committee on Special Education (“CSE”) convened on May 24, 2022, to review Student’s educational program. Student was in the sixth grade at the Private School (his first year at the Private School) that time, in a class of six students. The 2022 IEP recommended a 12:1+1 special class in a community school for four subjects, along with related services of Counseling (1x30;1:1 and 1x30, group of 3), Occupational Therapy (2x30; 1:1), and Speech Language Therapy (2x30; group of 3, 1x30; 1:1. He was estimated to be at third grade level in all academic subjects at that time, based on teacher estimates from November 2021.6

The DOE’s case – provision of a FAPE

A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits. Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). The IDEA’s procedures require the school district’s IEP Team, in developing an IEP, to consider (i) the strengths of the child; (ii) the concerns of the parents for enhancing the education of their child; (iii) the results of the initial evaluation or most recent evaluation of the child; and (iv) the academic, developmental, and functional needs of the child. 20 U.S.C. § 1414(d)(1)(A)(i)(I)-(IV). An IEP Team is a group of individuals, including the student’s parents. 20 U.S.C. § 1414(d)(1)(B).

A FAPE 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.” Rowley, supra. To meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas County Sch. Dist. RE-1, No 15- 827, 2017 WL 1066206, 137 S.Ct. 988, 69 IDELR 174 (U.S. Mar 22, 2017). When an IEP is disputed, a school district is expected to be able to offer a “cogent and responsive explanation for their decisions” to show that a

5Exs. 1, D and E. 6Ex. 1-1 student’s IEP meets that standard. The court in Endrew F. said that “the adequacy of a given IEP turns on the unique circumstances of the child for whom it was created.” A student's recommended program must also be provided in the least restrictive environment with non-disabled peers. See 34 C.F.R.§§300.114 through 300.117; Walczak v. Florida Union Free Sch. Dist., supra.

The Second Circuit has confirmed that its pre-existing FAPE standard is consistent with the Supreme Court’s decision in Endrew F. Mr. P. & Mrs. P. v. West Hartford Board of Educ., 885 F.3d 735 (2d Cir. 2018).

The DOE’s failure to offer before the start of the school year an interim or permanent placement that can implement the student’s IEP is a procedural violation that may amount to denial of FAPE. See, e.g. Mr. and Mrs. A. v. New York City Dep’t of Educ., 56 IDELR 42 (S.D.N.Y. 2011), citing Bettinger v. New York City Dept. of Educ., 2007 U.S. Dist. LEXIS 86116 (S.D.N.Y. 2007); N.R. v. Dept. of Educ., 2009 WL 874061 (S.D.N.Y. March 31, 2009); G.U. v. New York City Dep't. of Educ., 23 F. Supp. 3D 210 (S.D.N.Y. 2014); V.S. v. New York City Dep't. of Educ., 25 F. Supp. 3D 295 (E.D.N.Y. 2014).

Parents allege substantive and procedural violations of the IDEA and New York State law, including that the 2022 IEP is substantively and procedurally inappropriate and the DOE’s proposed placement school would entail part of Student’s education in a general education class.

The DOE relied on its exhibits in defense of its provision of a FAPE for the 2022-23 school year. It did not put on any witnesses. In limited cases, documents alone may be sufficient to prove the appropriateness of the CSE’s recommendations.7 Here, the DOE submitted the 2022 IEP, minutes from the meeting for the 2022 IEP, a prior written notice for the 2022-23 school year citing five reports that the CSE “reviewed and discussed” before making its recommendations, the five reports themselves, and the school location letter for the 2022-23 school year,8 among other documents. However, this is not one of the rare cases in which documentary evidence alone is sufficient to establish the appropriateness of the relevant IEP.

7See L. O. v. New York City Dep’t of Educ., 67 IDELR 225 (2d Cir. 2016); SRO Appeal Nos. 23-090 and 19-054. 8Exs. 1-9

Parents make a number of allegations in the DPC that require more evidence than the DOE’s documents alone provide. In particular, the Parents argue that the DOE failed to evaluate Student in all areas of need, failed to evaluate his social/emotional and behavioral needs, and failed to conduct an updated speech/language evaluation, occupational therapy evaluation or classroom observation. They also allege that the March 16, 2019 psychoeducational assessment9 is insufficient. The psychoeducational assessment was out of date at the time of the meeting for the 2022 IEP. Triennial reevaluations should have been completed to update that and other required evaluative materials.10 Under those circumstances, additional evaluations were required. The 2022 IEP also recommends a 12:1+1 special class, while acknowledging on the first page that Student was placed in a class of only six students at the time. The 2022 IEP, on its face, does not explain the apparent discrepancy.

At a bare minimum, the DOE should have provided “cogent and responsive” testimony as to why it was appropriate for the CSE to rely only on the documents that the DOE produced at hearing, and why the IEP developed on that basis was appropriate. The DOE has failed to meet its burden because its documentary evidence does not counter the allegations in the due process complaint. I therefore find that Student was denied a FAPE for the 2022-23 school year.

The Parents’ Case

Appropriateness of the Private School unilateral placement

With respect to the requested remedy of tuition payment, the burden now shifts to the Parent to prove the appropriateness of the private placement. I find that Parents have met their burden with respect to the Private School.

To meet their burden of proving that their unilateral placement was appropriate, the parents must establish, by a preponderance of the evidence, that the unilateral placement provides “educational instruction specifically designed to meet the unique needs of the student”. Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d. Cir. 2007). However, the private school placement “need not meet

9Ex. 5 108 NYCRR § 200.4 (b)(1) provides requirements for an initial evaluation, including at a minimum a physical examination, an individual psychological evaluation, a social history and a classroom observation. 8 NYCRR § 200.4(b)(4) requires re-evaluation at least once every three years. the IDEA definition of a free and appropriate public education” or “state education standards or requirements” (Frank G. v. Bd. of Educ. Of Hyde Park, 459 F.3d 356, 364 (2d. Cr. 2006). The private placement need not provide certified special education teachers or have its own IEP for a student. Parental placements are not subject to the same mainstreaming requirements as a school district placement. Id. Subject to those exceptions, however, the same considerations and criteria that apply in determining whether a school district's placement is appropriate should be considered in determining the appropriateness of the parents' placement. Gagliardo, 489 F.3d at 112. 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 Second Circuit has provided the following guidance in determining whether parents have met their burden:

No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. 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, supra, 489 F.3d at 112 (quoting Frank G, 459 F.3d at 364-65).

The Private School Witness is the Principal of the Private School and interacts with Student on a daily basis. I found him to be a credible witness, particularly since he was candid and forthcoming when asked at hearing about which of Student’s classes constituted non secular programming.11

The Private School Program

The Private School is a full time, private special education school designed for students who struggle in a mainstream setting because of behavioral and social challenges. Classes are from kindergarten through 8th grade. The Private School had 70 students during the 2022-23 school

11Hearing Transcript; Ex. S year.12 The Educational Director of the Private School has a master's degree in special education, is a New York State certified special education teacher, and a Board Certified Behavior Analyst ("BCBA"). She oversees training of all Private School staff. The Private School program is based on the Applied Behavioral Analysis (“ABA”) methodology, particularly in regard to behavior management, although it does not follow a strict ABA model.13 All staff, including teachers, assistants and paraprofessionals are trained in the behavioral program. There is a school-wide behavior plan. Each student has a “baseline” consisting of a number of “points”. Each student has individualized behavior goals. The student can “earn” points towards their goals. Points are awarded each period of the school day. The student receives rewards based on the extent to which goals are achieved.14

Student’s program at the Private School

The Private School has a detailed understanding of Student’s unique needs.15 Student was placed in a very small class of six students with one head teacher and two assistants. The other students in his class were within a one year age range and had similar social and behavioral needs. Student received both 1:1 and very small group instruction.16 Student’s class teacher has a Master’s degree in education and a New York State teaching license. Both assistants are completing bachelor’s degrees in psychology and are certified behavior technicians to provide ABA services. Student receives Counseling Services (1 x 30, 1:1 and l x 30, group), Speech Therapy (2 x 30, group and l x30, 1:1) and Occupational Therapy (2 x 30, 1:1), all by providers licensed in New York State in their respective fields.

Student has detailed and individualized written goals for behavior, counseling, academic subjects, executive functioning, occupational therapy, social skills and speech-language therapy. His progress reports for each subject include detailed descriptions of the skills targeted in each area.17

12Ex. S 13Id. 14Ex. S; Hearing Transcript, pp. 23-24; Ex. L 15Ex. S; Exs. D-K. 16Ex. S 17Exs. D-K

Student’s progress reports for the 2022-23 school year and testimony at hearing show that although still below grade level, he made progress generally during the 2022-23 school year, with advances more marked in some areas than others. 18 The DOE argues that Parents have failed to meet their burden because (1) the Private School failed to demonstrate how the Private School is addressing how Student is being motivated to overcome his resistance to occupational therapy and (2) the Private School’s progress reports are mostly narratives, without grades or “quantifiable” measures of progress.19

I disagree with these arguments. Firstly, the Private School Witness was candid about Student’s unwillingness to participate in occupational therapy. He testified that he himself was present to observe Student’s occupational therapy sessions because occupational therapy was hard for Student, and Student would at times “try to avoid doing it, refuse doing it”.20 The Private School Witness said he was “directly involved with the occupational therapist...in developing a plan to get [Student] through those sessions”. 21 The record therefore shows that the Private School was actively working on Student’s poor motivation with respect to occupational therapy.

Second, while a DOE IEP must include measurable annual goals, and report on them, the same is not required for a private school. A parent may use a narrative report at hearing as evidence, for example, that parents’ decision to place a student in the unilateral placement was reasonable, that a unilateral placement is specifically designed to meet a student’s unique needs, or that a student has, in fact, made progress at the private school. The DOE’s right of cross examination allows the DOE to probe any concerns with a narrative format. The DOE has not demonstrated any specific failings in Student’s reports, Exs. D through K, that invalidate their use as evidence of Student’s progress. In addition, despite the DOE’s argument, review of the reports shows that while they contain some narrative, in many cases they indicate Student’s level of progress toward a given goal by a letter. “I” stands for “Initiate”, “C” stands for “Continue” and “M” stands for “Mastered”.22

18Id. 19Hearing Transcript, pp. 33-34 20Testimony of the Private School Witness, Hearing Transcript. 21Id. 22Exs. D-K.

Based on the record, including the Private School Witness’ testimony, I find that the Private School provided educational instruction specifically designed to meet Student’s unique needs. Parents have met their prong 2 burden with respect to the Private School.

Equities

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). Courts and hearing officers enjoy “broad discretion” in fashioning appropriate relief. Burlington, 471 U.S. at 374. In doing so, they may consider among other things whether a parent’s unilateral withdrawal of her child from the public school was justified, whether the parent provided the Department with adequate notice of the withdrawal, whether the amount of private-school tuition was reasonable, whether the parent should have availed herself of need-based scholarships or other financial aid from the private school, and whether there was any fraud or collusion in generating (or inflating) the tuition to be charged to the Department, or whether the arrangement with the school was fraudulent or collusive in any other respect. E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014). Total reimbursement will not be appropriate if the cost of the private education was unreasonable. Carter, 510 U.S. 7.

Whether or not the parents cooperated with the CSE is a significant equitable consideration. Reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting before their removal of a student from public school, or by written notice ten business days before that removal. See 20 U.S.C. § 1412(a)(10)(C)(iii)(I) and 34 CFR 300.148(d)(1). This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools" (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 (1st Cir. 2004). 20 U.S.C. § 1412(a)(10)(C)(iv)(I) (bb) provides an exception to the ten business day notice requirement in the event a parent has not received notice of the ten business day requirement.23 Certain New York cases have also denied tuition reimbursement where the parents had no intention of accepting a school district placement.24

Nothing in the record indicates that Parents failed to cooperate with the DOE. They provided the necessary ten days’ notice of parents’ concerns with the 2022 IEP.25 The ten day notice also gave the DOE notice of the parents’ intention to unilaterally place the Student at the Private School for the 2022-23 school year.26 Parents sent a follow up letter on September 19, 2023.27 No evidence was submitted at hearing describing the DOE’s response to the ten day notice or the follow up letter.

The Parents request an award of full tuition.28 DOE argued that equitable considerations require that any tuition awarded should be reduced proportionately by the percentage of non secular instruction that Student received each week.29 In general, school districts are not required to fund religious portions of the school day. School districts are not required to fund services that provide religious instruction or go beyond what is necessary to provide a FAPE.30

The Private School Witness volunteered that 320 minutes of a total of 1,920 minutes or 18.2% of Student’s time of instruction per week is “religious in nature”.31 He qualified that calculation by explaining that student’s daily program, even the parts characterized as religious in nature, was “really all about being a student”.32

23“Notwithstanding the notice requirement in clause (iii)(1), the cost of reimbursement ...shall not be reduced or denied ...if...the parents had not received notice, pursuant to section 1415 of this title, of the notice requirement in clause (iii)(1);….”

24See, e.g. Carmel Cent. Sch. Dist., 375 F.Supp. 402 (S.D.N.Y. 2005). 25Ex. B. 26Id. 27Ex. C 28At hearing, parties made arguments regarding whether the Establishment Clause and the New York State Constitution prohibits a school district from reimbursing parents for secular components of a student’s education at a non-secular unilateral placement. The DOE Attorney also submitted a letter brief after the hearing (IHO Ex. I). However, I am not making any finding regarding constitutional issues because my jurisdiction is limited to the IDEA and whether a FAPE

was provided.

29Hearing Transcript. 30See L.K. v. New York City Dep’t of Educ., 69 IDELR 90 (2d Cir. 2017). See also Leiman v. Smith, 70 IDELR 142 (4th Cir.

2017) (“the IDEA does not mandate that a school instruct a student in his preferred religious practices”). 31Hearing Transcript p. 22. 32Id.

The Private School Witness’ explanation does not justify ordering the DOE to pay for that portion of Student’s program. While the periods of religious and cultural instruction may have provided some incidental benefits, their purpose was clearly specific to Student’s religion and were not general education. There is no evidence in the record that the “religious” classes (prayer, “Gemara”, Judaic studies and a period called “general knowledge”) are necessary to a FAPE. I therefore find that 18.2%, or a total of $17,290 should be deducted from the total tuition awarded, and am ordering the DOE to pay a total of $77,710 for Student’s 2022-23 tuition at the Private School.

Direct payment of tuition

Total tuition at the Private School for the 2022-23 school year was $95,000.33 Parents have paid a total of $5,000 and seek direct payment to the Private School of the remainder. Direct tuition funding may be an appropriate equitable remedy. See e.g. Mr. and Mrs. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 406 (S.D.N.Y. 2011) (parents have a right to retrospective direct payment where the private school is willing to “take the risk that the parents will not be able to pay tuition costs” as long as the parents are legally obligated to do so. As the court in Mr. and Mrs. A. also noted, the United States Supreme Court has endorsed prospective relief in Burlington.34 While an IHO may consider a parent’s financial abilities when deciding whether to order reimbursement or direct payment, direct payment need not be conditioned on the parent’s inability to pay and hearing officers have broad discretion to grant appropriate relief, including direct payment. Ferreira and Rojas v. N.Y.C. Dept’ of Educ., 123 LRP 9785 (S.D.N.Y. 2023) citing A.R. ex rel. F.P. v. N.Y.C. Dep’t of Educ., 2013 WL 5312537 (S.D.N.Y. 2013) and Mr. & Mrs. A., 769 F. Supp. 2d at 428; see also Erde ex rel. J.E. v. Banks, 2022 U.S. Dist. LEXIS 232797 (S.D.N.Y. 2022). The Private School Contract provides satisfactory evidence that Parent is legally obligated to pay the tuition to the Private School.35 The contract, proof of Parent’s payment of $5,000 and proof of Student’s attendance are already in the hearing record and need not be resubmitted.

I find nothing in the record to indicate that the cost of tuition at the Private School is unreasonable. Student attended the Private School during the year at issue with a few immaterial

33Exs. M, O and P. 34“[I]t seems clear beyond cavil that "appropriate" relief would include a prospective injunction directing the school officials to develop and implement at public expense an IEP placing the child in a private school.” 35Ex. M. absences.36 The weight of the evidence establishes that Parent cooperated with the DOE and its CSE’s efforts to develop an IEP and recommend a program and placement for the 2022-23 school year. Overall and after considering the record at hearing, I find that the equities support Parent’s claim for tuition reimbursement and direct funding, except for the non secular portion as indicated above.

I have reviewed Parents’ other requests and claims and find them either to be without merit, not supported by the record, not within my jurisdiction or beyond the scope of my authority. Accordingly, any relief not specifically discussed in this decision is denied, and all the Parents’ remaining claims not discussed herein are dismissed with prejudice.

ORDERS

IT IS HEREBY ORDERED that the New York City Department of Education (“DOE”) is directed to fund the cost of Student’s 2022-23 school year tuition at the Private School up to a total amount $77,710; and it is further

ORDERED that the DOE shall pay for the foregoing by reimbursing the Parents in the amount of $5,000, and pay the remaining $72,710 directly to the Private School, both within 35 days of the date of this decision.

July 20, 2023

_________________________________

Virginia Tillyard, Impartial Hearing Officer

36Ex. N.

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

EXHIBIT LIST

PARENT EXHIBITS

of	Pages
A	04/06/2023 Impartial Hearing Request 3
B	08/23/2022 Ten-Day Notice Letter (with email confirmation) 3
C	09/19/2022 Follow-up Ten-Day Notice Letter (with email 3 confirmation)
D	June 2023 Behavior Progress Report 2
E	June 2023 Counseling Progress Report 2
F	June 2023 Educational Progress Report 10
G	June 2023 End of Year Goals Progress Report 10
H	June 2023 Executive Functioning Progress Report 1
I	June 2023 Occupational Therapy Progress Report 2
J	June 2023 Social Skills Progress Report 3
K	June 2023 Speech-Language Therapy Progress Report 1
L	2022-2023 Daily Schedule 1
M	08/31/2022 Enrollment Contract 1
N	2022-2023 Attendance 1
O	05/22/2023 Affidavit of Payment 1
P	01/19/2023 Proof of Payment 1
Q	2022 U.S. Individual Income Tax Return 4
R	06/15/2023 Affidavit of Testimony of [REDACTED] 3
S	06/02/2023 Affidavit of Testimony of [REDACTED] 7

DOE EXHIBITS

# DOCUMENT DESCRIPTION DATE PAGE C

May	2022 Individualized Education Program (IEP) 05/24/2022
1	35
2	IEP Meeting Minutes 05/24/2022 3
3	Prior Written Notice 08/11/2022 4
4	School Location Letter 08/11/2022 2
5	DOE Psychoeducational Assessment 03/08/2019 4 November 2021
6	Teacher Report 9 November 2021
7	Counseling Report 3 November 2021
8	Occupational Therapy Report 2 November 2021
9	Speech and Language Report 2
10	Due Process Complaint 04/6/2023 4

IHO EXHIBITS

Exhibit Document Date Pages