Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 249442

Student’s Name: STUDENT

School District: SCHOOL DISTRICT

Impartial Hearing Officer: Michele Host

Date of Filing: June 29, 2023

Hearing Requested by: PARENT

Time Sensitive: No

Dates of Hearing: November 9, 2023

Record Close Date: November 29, 2023

Date of Decision: November 30, 2023

NAMES AND TITLES OF PERSONS WHO APPEARED

NOVEMBER 9, 2023:

For the Student:

REDACTED (Parent’s Counsel)

REDACTED (Principal)

For the District:

REDACTED (DOE Counsel)

INTRODUCTION AND PROCEDURAL HISTORY

This matter concerns the Student, a student classified as a student with a disability under the Individuals with Disabilities Education Act (“IDEA”). The Student’s eligibility for special education supports and services is not in dispute.

This matter comes before me on the Parent’s due process complaint, filed on or about June 29, 2023, concerning the 2023-2024 school year, and which the Parent amended on July 27, 2023. In the Parent’s amended due process complaint, the Parent alleges that the DOE failed to provide the Student with a free and appropriate public education (“FAPE”) for the 2023-2024 school year because the educational program recommended for the Student was inappropriate in multiple respects, and because the DOE failed to evaluate the Student in all areas of suspected disability. (P-B, p. 2) The Parent also alleges that the recommended program could not implement the Individualized Educational Program (“IEP”) that the DOE created for the Student’s 2023-2024 school year. (P-B, pp. 7-8) As relief, the Parent seeks direct funding of her unilateral placement of the Student at a private school (“Private School”) for the 2023-2024 school year, as well as attorneys’ fees and costs. (P-B, p. 7)

I was appointed to this matter on June 29, 2023, and held a pre-hearing conference on September 6, 2023. On September 20, 2023, the DOE issued a pendency form in this matter. I held a status conference on October 13, 2023, and scheduled a due process hearing for November 9, 2023.

The impartial hearing took place on November 9, 2023. Both parties disclosed proposed documentary evidence, and Parent’s Counsel objected to DOE’s proposed exhibits 2 and 3. The DOE withdrew proposed exhibits 2 and 3, and I entered the DOE’s exhibit 1 into evidence. (Tr. 21-22) I entered the Parent’s exhibits A through O into evidence without objection.^[1] (Tr. 22-24) Both parties made opening statements, and the DOE conceded that it would not demonstrate that the DOE presented the Student with a FAPE for the 2023-2024 school year. (Tr. 24-27) The DOE then rested before cross-examining the principal of the Private School (“Principal”), whose affidavit testimony is in evidence as Parent’s exhibit O. (Tr. 27-44) Parent’s Counsel asked several questions on re-direct, and the Parent rested. (Tr. 44-48) Both parties presented closing arguments. (Tr. 49-51)

The record in this case closed on November 29, 2023. A list of the documentary evidence in this proceeding is appended to this decision.

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 its implementing regulations, 34 C.F.R. § 300 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.

FINDINGS OF FACT

After considering all the evidence, as well as the closing arguments of both parties, my findings of fact are as follows:

The Student has been diagnosed with Down Syndrome and is classified by the DOE as a Student with an Intellectual Disability. (D-1, p. 1) At the time of the Student’s most recent IEP meeting on March 28, 2023, the Student would have been in the tenth grade based on the Student’s chronological age. (Id.)

The March 28, 2023 IEP refers to a classroom observation conducted at the Private School, as well as a neuropsychological evaluation. (Id.) The IEP states that the Student’s “word recognition, listening vocabulary, oral reading and reading comprehension are on a 1st grade level.” (Id. at p. 2) The Student’s math calculation and computational and problem solving skills are also on a first grade level. (Id.) The Student demonstrates delays in expressive and receptive language abilities but has made “noticeable progress” in the Student’s speech and language skills over the past year. (Id.) The Student is distractible and has difficulty staying on task. (Id. at p. 4)

The IEP recommended a 12:1:1 Yiddish-speaking placement in a District 75 school for the Student. (Id. at p. 19) The IEP further recommended that the Student receive occupational therapy (“OT”) on an individual basis, twice a week, for 30 minutes, and speech-language therapy (“SLT”) three times a week, for 30 minutes, in a group of three, in Yiddish.

On June 15, 2023, the Parent filed a Notice of Unilateral Placement (“Notice”) with the DOE for the 2023-2024 school year. (P-E) The Parent’s Notice described the Parent’s concerns regarding the Student’s IEP and stated that unless the DOE provided the Student with an appropriate placement, the Parents would enroll the Student at the Private School. (P-E, pp. 6-7) The Parent then filed a corrected Notice on June 16, 2023. (P-D)

On June 21, 2023, the Parent signed an enrollment contract with the Private School for the 2023-2024 school year. (P-F) The tuition for the 2023-2024 school year is $90,000.00, inclusive of related services. (P-F) The Parent has not made any tuition payments for the 2023-2024 school year. (P-G)

The Student’s 2023-2024 school year at the Private School began on June 29, 2023. (PG) The Private School is a private special education school. (P-O, ¶ 6) All of the students at the Private School are diagnosed with an intellectual disability, and most of them are diagnosed with Down Syndrome. (Id., ¶ 7) The Private School’s curriculum focuses on academic skills, social skills (including mainstreaming opportunities), and vocational skills. (P-O, ¶ 10) The Private School shares a building with a mainstream private school and the Private School’s students interact with mainstream peers throughout the day, including during lunch, physical education, recess, major school events, transitions, and a special program called “Buddy Time” in which general education students are paired with Private School students for learning opportunities. (Id., ¶¶ 13-14) For the 2023-2024 school year, the Student has been placed in a classroom with 12 students, one leader, and one assistant teacher. (Id., ¶ 32) The lead teacher is a licensed special education teacher with a master’s degree in special education; the assistant teacher has a master’s degree in special education. (Id., 33) The educational professionals who work at the Private School all receive ongoing in-house training and attend professional development seminars. (Tr. 33; P-O, ¶¶ 16-17)

The Student’s curriculum was designed and modified to meet the Student’s unique educational needs. (Id., ¶¶ 38-39) The Student’s teachers individualize the Student’s instruction by creating personalized worksheets for the Student based on the Student’s functional levels, previously acquired skills, and individualized goals. The Student is assessed using the Brigance Comprehensive Inventory of Basic Skills assessment three times a year to determine the Student’s baseline abilities and develop the Student’s academic goals. (Id., ¶¶ 41-43) The Student studies reading and math in small groups of students who are grouped by functional level. (P-O, ¶¶ 54, 71) The Student also receives instruction in activities of daily living and selfcare through visual and verbal cues, teacher and peer modeling, hand-over-hand support, and role playing. (P-O, ¶¶ 83-86) The Student receives SLT three times a week for 30 minutes and OT twice a week for 30 minutes. (Id., ¶¶ 64-65; 90-91; P-K) Religious instruction constitutes

10 to 11 percent of the Student’s school day. (P-J; O, ¶ 111; Tr. 42)

CONCLUSIONS OF LAW AND ANALYSIS

The IDEA establishes a “substantive right to a ‘free appropriate public education’” for children with disabilities. Endrew F. v. Douglas Co. School Dist, 137 S. Ct. 988, 993 (2017) (quoting Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty. v. Rowley, 458 U.S. 176 (1982)). The IDEA directs that, in general, an IHO’s decision must be made on substantive grounds based on a determination of whether the student received a FAPE. See 20 U.S.C. § 1415(f)(3)(E)(i). Under the IDEA and New York law, where there is a 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. See 20 U.S.C. § 1415 (f)(3)(E)(ii); 8 N.Y.C.R.R. § 200.5(j)(4)(ii).

A FAPE is offered to a student when: (a) the DOE complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits. Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005). “Not every procedural error will render an IEP legally inadequate.” M.H. v. New York City Dep’t of Educ., 685 F. 3d 217, 245 (2d Cir. 2012) (citation omitted). If a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student’s right to a FAPE, (b) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits. 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2); Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 (S.D.N.Y. 2007).

In general, an impartial hearing officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE. 20 U.S.C. § 1415(f)(3)(E)(i). A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” Rowley, 458 U.S. at 203. School districts are not required to “maximize” the potential of students with disabilities, but must provide “an IEP that is ‘likely to produce progress, not regression,’ and ... affords the student with an opportunity greater than mere ‘trivial advancement.’” Cerra, 427 F.3d at 195, quoting Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998); see also Rowley, 458 U.S. at 199; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 379 (2d Cir. 2003). The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit.” Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see Rowley, 458 U.S. at 192.

Throughout the hearing process, a school district bears the burden to show that it (1) complied with the IDEA’s procedural requirements; and (2) designed an IEP reasonably calculated to confer educational benefit on the student. C.B. ex rel W.B. v. N.Y. City Dep’t of Educ., 2005 U.S. Dist. LEXIS 15215, *37 (E.D.N.Y. June 10, 2005); 20 U.S.C. 1415(i)(2)(C)(iii); see also Walczak, 142 F.3d 119. However, “a parent or person in parental relation seeking tuition reimbursement for a unilateral parental placement shall have the burden of persuasion and burden of production on the appropriateness of such placement.” N.Y. Educ. § 4404(1)(c).

Under the three-prong test established by the Supreme Court in Sch. Comm. of Burlington, Mass, v. Dep’t of Educ. of Mass, 471 U.S. 359 (1985) and Florence County. Sch. Dist. Four v. Carter, 510 U.S. 7 (1993), parents who unilaterally place their children in private school are entitled to reimbursement from the school district if the services offered by the school district were inadequate or inappropriate, the services selected by the parent(s) were appropriate, and equitable considerations support the parent’s claim. 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 U.S. LEXIS 11520 (Oct. 15, 2007). The first prong of the Burlington-Carter test encompasses whether the student’s IEP provided a FAPE. Brock v. Dutton, 2015 U.S. Dist. LEXIS 44254, *14 (S.D.N.Y. March 31, 2015).

The Parent has the burden of proving that the unilateral placement was appropriate. To meet this burden, the Parent must establish, by a preponderance of the evidence, that the unilateral placement provides “educational instruction specifically designed to meet the unique needs of a handicapped child.” Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d. Cir. 2007) (quoting Frank G. v. Bd. of Educ., 459 F.3d at 364-65). The private school placement “need not meet the IDEA definition of a free and appropriate public education” or “state education standards or requirements.” Frank G. v. Bd. of Educ., 459 F.3d at 364.

The final prong of the Burlington-Carter test involves the balancing of the equities. 20 U.S.C. § 1412(a)(10)(C)(iii). Reimbursement may be limited or denied if the parent failed to act reasonably, did not cooperate with the DOE’s attempts to evaluate the student, or failed to provide proper notice of the parent’s rejection of the Student’s placement. See 20 U.S.C. § 1412(a)(10)(C)(iii). When considering whether the parent has shown that the equities weigh in the parent’s favor, it is important to consider “whether the [parent] cooperated with the district in its efforts to meet its obligations under the IDEA.” C.L v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 840 (2d Cir. 2014). Burlington-Carter Test Prong I

As to Prong I of the Burlington-Carter test, the DOE failed to meet its burden at hearing. The Supreme Court has found a reviewing court may expect school district staff “to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.” Endrew F. v. Douglas County School District, 137 S.Ct. 988, 1002 (2017). In this case, the DOE entered the Student’s March 28, 2023 IEP into evidence but provided no other documentary evidence, called no witnesses, and conceded that the DOE failed to meet its Prong I burden. (Tr. 24-25) Therefore, I cannot find that the DOE offered the Student a FAPE for the 2023-2024 school year. Burlington-Carter Test Prong II: The Appropriateness of the Parent’s Unilateral Placement

A unilateral private school placement must be reasonably calculated to enable the child to receive educational benefits, and must be likely to produce progress, not regression. The relevant standard to apply is whether “the unilateral private placement . . . provides educational instruction specifically designed to meet the unique needs of a handicapped child.” Gagliardo, 489 F.3d at 115 (quotations omitted). No single factor is dispositive in this analysis. Id. The private placement does not necessarily need to provide certified special education teachers or every special service that could assist in maximizing the Student’s potential. Bd. of Educ. of the Wappingers Cent. Sch. Dist. v. D.M., 2020 U.S. Dist. LEXIS 16007 (S.D.N.Y. 2020), aff’d 2020 U.S. App. LEXIS 39739 (2d Cir. 2020) (citation omitted). Moreover, parental placements are not subject to the same mainstreaming requirements as a school district placement. Frank G. v. Bd. of Educ., 459 F. 3d at 364.

In this case, the Parent submitted the Student’s 2023-2024 daily schedule and therapy schedule from the Private School, a Skills Assessment dated September 12, 2023, the testimony of the Principal, OT Progress Notes dated March 24, 2023, and SLT Progress Notes dated March

21, 2023. (P-I; J; K; L; M; N; O)

Although the Skills Assessment was created relatively early in the 2023-2024 school year, it contains detailed information about the Student’s strengths and weaknesses. (P-L) The Skills Assessment describes the Student’s ability to engage in activities of daily living and selfhelp, such as the Student’s ability to respond to questions about themself, recognize colors, get dressed, and identify body parts. (P-L, p. 1) The Skills Assessment also contains information about the Student’s reading, writing, and math levels, and the Student’s ability to follow directions. (P-L, pp. 4-5)

The testimony of the Principal provides comprehensive information about the curriculum the Private School designed for the Student, the way the Private School individualizes the Student’s instruction, and the progress the Student has made so far during the 2023-2024 school year. (P-O)

The Principal testified that the Student is taught reading using the Palmtree Reader curriculum, math using Touch Math, and handwriting using Handwriting Without Tears. (P-O, ¶¶ 44, 63, 74) The Principal testified that the Palmtree Reader curriculum is appropriate for the Student because it is “concrete and uses one comprehensive story that covers a number of subjects and skill areas.” (Id., ¶ 44-47) The Student also benefits from the curriculum’s use of decodable books that use a repetitive sound and letter pattern, building on phonics instruction. Individual reading workbooks are developed for the Student each week. (P-O, ¶ 48) The Principal testified that the Touch Math curriculum works for the Student because it is a “handson, concrete approach” that is “multisensory,” which the Student needs in order to learn. (P-O, ¶¶ 63-64) The Student’s teachers develop individual math worksheets for the Student based on the Student’s skill levels. The Principal testified that the Student’s teachers also modify the pace of instruction to accommodate the Student’s slower rate of processing. (P-O, ¶ 68) The Principal Testified that Handwriting Without Tears is also a multisensory curriculum and allows the Student to benefit “from techniques, such as writing in sand, skywriting, and writing using modalities and manipulatives to get a concrete opportunity to be able to write those letters and numbers.” (P-O, ¶ 74) In addition, the Student’s teachers create individualized handwriting worksheets for the Student. (P-O, ¶ 80)

The Principal testified that in the 2023-2024 school year so far, the Student has made progress in “reading, which includes sight word reding, reading decoding, comprehension, spelling. And the same as with math—math computational skills, rote—rote counting math, addition, subtraction, telling time, and money skills.” (Tr. 32) The Principal also testified that the Student has made progress in the Student’s activities of daily living, including keeping the Student’s clothing properly tucked in and eating with a fork and knife. (Tr. 39)

The Student’s OT and SLT progress notes are from the prior school year. (P-M; N) Given that the Student attended the Private School during 2022-2023, the progress notes show that the Private School has consistently provided the Student with OT and SLT, and that the Student’s providers designed nuanced, individualized goals for the Student that have helped the Student make progress. (P-M; N)

The DOE did not object to the Parent’s evidence being entered into the record, including the sworn affidavit of the Principal. There is nothing in the record that would undermine or controvert the testimony given by the Principal and I credit his testimony in full.

I find that the Parent has met her burden to prove that the private program offers an educational program that meets the Student’s needs under Prong Two of the Burlington/Carter standard. There is ample evidence showing that the Private School has created a thoughtful, individualized curriculum for the Student. Moreover, when teachers at the unilateral placement adapt instruction (for example, working one-on-one with the student, creating worksheets and workbooks for the student, and/or modifying the pace of instruction), these factors weigh in favor of the appropriateness of the parent’s unilateral placement. Frank G., 459 F.3d at 365-66. Ultimately, the weight of the evidence establishes that the Student’s individual special education needs are being addressed by the Private School and that the instruction offered is “reasonably calculated to enable the child to receive educational benefits.” Frank G., 459 F.3d at 364. Burlington-Carter Test Prong Three: Equitable Factors

Equitable factors are relevant to fashioning relief under the IDEA. Burlington, 471 U.S. at 374; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826 (2d Cir., 2014); M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 (2d Cir. 2000) (citations omitted); see also Carter, 510 U.S. at 16 (“Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable”). Reimbursement of private school tuition may be reduced or denied when parents fail to challenge the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. 20 U.S.C. § 1412(a)(10)(C)(iii); 34 C.F.R. § 300.148(d); see S.W. v. New York City Dep’t of Educ., 646 F. Supp. 2d 346, 362-64 (S.D.N.Y. 2009); Thies v. New York City Bd. of Educ., 2008 U.S. Dist. LEXIS 11354 (S.D.N.Y. Feb. 4, 2008); Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-61 (S.D.N.Y. 2005).

The IDEA allows that reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the student from public school, or by written notice ten business days before such removal, “that they were rejecting the placement proposed by the public agency to provide [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense.” 20 U.S.C. § 1412(a)(10)(C)(iii)(I); see 34 C.F.R. § 300.148(d)(1). This statutory requirement “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).

In this case, the record does not establish that the Parent “acted with the requisite level of unreasonableness or misconduct that reimbursement should be denied on equitable grounds.” Jennifer D. ex rel. Travis D. v. New York City Dept. of Educ., 550 F. Supp 2d 420, 437 (S.D.N.Y. 2008). There is nothing in the hearing record to suggest, let alone demonstrate, that the Parent interfered in any manner with the CSE’s evaluation of the Student or prevented it from providing the Student with a FAPE for the 2023-2024 school year. Furthermore, the DOE raised no argument that the equities would not weigh in favor of the Parent. (Tr. 49) The record supports a finding that the Parent cooperated fully with the DOE and timely sent the requisite ten-day notice to the DOE in advance of the commencement of the 2023-2024 school year. (P-D; E)

In addition, the record clearly establishes that the Parent incurred an obligation to pay the Private School the aggregate tuition sum of $90,000.00, which the Parent has not paid. (P-F; G; O, ¶ 110) Direct tuition funding is relief encompassed by the equitable remedial powers inherent in the IDEA. 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). Given my finding that the Private School is the appropriate placement for the Student, the Student is entitled to an award for tuition funding for the Student’s attendance at the Private School for the 2023-2024 school year, to be paid directly to the Private School. See E.M. v. New York City Dep’t of Educ., 758 F.3d 442, 453-54 (2d Cir. 2013) (“direct payment fits comfortably within the Burlington-Carter framework: like reimbursement, direct payment to the private school that provided the required educational program ‘merely requires [the school district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance had it developed a proper IEP.’”) (quoting Burlington, 471 U.S. at 370-71). However, given that slightly over 10 percent of the Student’s school day is focused on religious study, I will direct the DOE to pay 89 percent of the Student’s tuition, or $80,100.00. See M. L. v. Smith, 867 F.3d 487, 499 (4th Cir. 2017) (“federal regulations support the conclusion that states may not use IDEA funds to provide religious and cultural instruction”) (citing 34 C.F.R. § 76.532(a)(1)).

While the amount of tuition at the Private School is not insignificant, I do not find that the tuition costs are excessive or unreasonable, given the Private School’s educational program for the Student. Carter, 510 U.S. 7, 15-16. After considering the entire record presented at hearing, I find that the equities support the Parent’s claim for direct funding.

OTHER RELIEF SOUGHT

In addition to direct tuition funding for the Student’s tuition at the Private School, the Parent seeks additional relief that I will discuss below. Attorneys’ Fees

The Parent also requested attorneys’ fees and expenses in the Parent’s due process complaint. (P-A, p. 7) The IDEA does not authorize an administrative officer to award attorneys’ fees or other costs to a prevailing party, and entitlement, if any, to costs must be determined by a court of competent jurisdiction. 20 U.S.C. § 1415(i)(3)(B); Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 402 F.3d 332 (2d Cir. 2005); see also Application of a Student with a Disability, Appeal No. 08-008 (March 31, 2008); Application of a Child with a Disability, Appeal No. 06-109 (Oct. 27, 2006). Only a court can determine if a party is entitled to attorneys’ fees and I would be exceeding the scope of my authority by determining that the Parent is the prevailing party entitled to costs. Therefore, to the extent that the Parent is seeking reimbursement and/or payment of attorneys’ fees and costs, the Parent’s request is denied.

I have reviewed the parties’ remaining contentions and find them to be either unnecessary to this decision, without merit, beyond my jurisdiction, or without sufficient basis in the record for a finding. Accordingly, any relief not specifically discussed in this decision is denied, and all the Parent’s remaining claims not discussed herein are dismissed with prejudice.

ORDER

Based above the above findings of fact, it is hereby:

1. ORDERED, that the DOE shall directly fund the Student’s 2023-2024 tuition at the Private School by paying the Private School $80,100.00 within 35 days of this order.

SO ORDERED.

DATED: November 30, 2023

Michele Host (signed electronically)

Impartial Hearing Officer

Michele Host

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.

APPENDIX A – ADMITTED EXHIBITS

DISTRICT’S EVIDENCE

1. Individualized Education Program (IEP) PARENTS’ EVIDENCE 3/28/2023 28 pages DOE

A. Impartial Hearing Request 6/29/23 8 pages

B. Amended Impartial Hearing Request 7/27/23 7 pages

C. Due Process Response 7/13/23 3 pages

D. Notice of Unilateral Placement 6/15/23 7 pages

E. Corrected Notice of Unilateral Placement 6/16/23 7 pages

F. Enrollment Contract 6/21/23 2 pages

G. Payment Affidavit 10/16/23 1 page

H. U.S. Tax Return – Form 1040 6/3/22 2021 2 pages

I. Curriculum 2023-2024 15 pages

J. Daily Schedule 2023-2024 1 page

K. Therapy Schedule 2023-2024 1 page

L. Skills Assessment 9/12/23 8 pages

M. Occupational Therapy Progress Notes 3/24/23 2 pages

N. Speech/Language Therapy Progress Notes 3/21/23 2 pages

O. Testimonial Affidavit of Principal 10/30/23 11 pages

Footnotes

[1] The DOE exhibit is cited as “D” followed by a number, and the Parent’s exhibits are cited as “P” followed by a letter. The transcript is cited by “Tr.” followed by a page number.