New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 606384 NYC: 253610

FINDINGS OF FACT AND DECISION

Field	Value
Case Number	253610
Student’s Name	REDACTED
School District	N.Y.C. Dep’t. of Educ.
Impartial Hearing Officer	John Henry Olthoff
Date of Filing	08/31/2023
Hearing Requested by	Parent
Date of Hearings	09/07/2023, 10/03/2023, 10/14/2023, 11/14/2023
Date of Decision	12/08/2023

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 12, 2023

For the Student:

REDACTED, Esq., Attorney

For the Department of Education:

REDACTED, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 3, 2023

For the Student:

REDACTED, Esq., Attorney

For the Department of Education:

NONE

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 17, 2023

For the Parent:

REDACTED, Esq., Attorney

For the Department of Education:

REDACTED, Esq., Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 14, 2023

For the Parent:

REDACTED, Esq., Attorney

REDACTED, Parent (“Parent”)

REDACTED, Ed.D., Educational Director, (“Director”), REDACTED (“Private School”)

For the Department of Education:

REDACTED, Esq., Attorney

BACKGROUND

On August 31, 2023, Parents, through Counsel, initiated a due process complaint (“DPC”) against Respondent New York City Department of Education (“DOE”), pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. (“IDEA”), The Regulations of the Commissioner of Education, 8 N.Y.C.R.R. § 200.5 and Section 504 of the Rehabilitation Act. In the DPC, Parent alleged, inter alia, that DOE denied Student a free appropriate public education (“FAPE”) during the 2023-2024 school year (“23/24 SY”). On September 1, 2023, I was appointed as the Impartial Hearing Officer (“IHO”) in this matter.

I issued an Order on Pendency (“OP”) on Consent of the Parties on September 7, 2023. (IHO Ex. II)^[1]. A Settlement and Pre-Hearing Conference (“PHC”) was held on October 3, 2023. The substantive impartial hearing was held on November 14, 2023. DOE proposed to enter seven (7) documents into the record; however, as these documents were not disclosed in compliance with the “5-Day Rule,” (8 N.Y.C.R.R. § 200.5(j)(3)(xii)) and, upon Parent’s objection to the untimely disclosure, these documents were excluded.^[2] Parent entered six (6) documents into the record and presented two witnesses, including Parent.

LEGAL FRAMEWORK

A School District’s Obligation to Provide a FAPE

The Individuals with Disabilities Education Act, 20 U.S.C. § 1400, et seq. (“IDEA”), requires school districts to provide a free appropriate public education (“FAPE”) to students with disabilities, which consists of special education and related services designed to meet students’ unique needs. The IDEA also seeks to ensure that the rights of students with disabilities, and their parents/guardians, are protected. Forest Grove School Dist. v. Y.M., 557 U.S. 230, 239 (2009); Bd. of Educ. of Hendrick Hudson C.S.D. v. Rowley, 458 U.S. 176, 206-07 (1982).

A school district provides a FAPE to a student with a disability when it complies with the various procedural requirements of the IDEA, and the school district’s Committee on Special Education (“CSE”) develops an Individualized Education Program (“IEP”) consistent with those procedural requirements and is reasonably calculated to enable the student to receive educational benefits. Rowley, supra, 458 U.S. at 206-07; T.M. v. Cornwall C.S.D., 752 F.3d 145, 151, 160 (2d Cir. 2014).

Under IDEA, the obligation to identify and evaluate students, and to develop and implement IEPs for students with special education needs rests solely on the school district. In New York it is the school district that bears the burden of proof, including the burden of production and persuasion, regarding any issue at an impartial hearing, except for the appropriateness of a unilateral placement, where the burden shifts to the parent. N.Y. Educ. Law § 4404(1)(c).

If a parent alleges procedural violations of the IDEA, an IHO may find that a student did not receive a FAPE if such procedural violations: 1) impeded the student’s right to a FAPE; 2) significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provision of FAPE to the student; or 3) caused a deprivation of educational benefits. See 20 U.S.C. §1415(f)(3)(E); 34 C.F.R. §300.513(a)(2); 8 N.Y.C.R.R. §200.5(j)(4)(ii); see also Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 (2007).

For a district to provide for “merely more than de minimis” progress from year to year is insufficient: the U.S. Supreme Court has opined that the essential function of the IEP is to set out a plan for pursuing academic and functional advancement for the disabled student, and that such educational program must be reasonably calculated to enable the student to make progress appropriate in light of the child’s unique circumstances. See Endrew F. v. Douglas Cty. School Dist. RE-1, 137 S. Ct. 988, 999, 1001, 2017 U.S. LEXIS 2025 (2017).

A school district’s failure to offer or provide a FAPE for a disabled student may arise out of many different scenarios, including multiple procedural violations of IDEA requirements by the district, see R.E. v. New York City Dept. of Educ., 694 F.3d 167, 189-91 (2d Cir. 2012), and/or a substantively inadequate and inappropriate IEP. See Rowley, supra, 458 U.S. at 192. “Multiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not.” R.E., supra, at 190-91; see also M.H. v. N.Y.C. Dept. of Education, 685 F.3d 217, 245 (2d Cir. 2012); Werner v. Clarkstown C.S.D., 363 F. Supp.2d 656, 659 (S.D.N.Y. 2005).

A school district’s CSE is required to assess a student in all areas related to the suspected disability, including, where appropriate, health, vision, hearing, social and emotional status, general intelligence, academic performance, communicative status, and motor abilities. See 8 N.Y.C.R.R. § 200.4(b)(6)(vii); see also 34 C.F.R. § 300.304(c)(4). The evaluation must be sufficiently comprehensive to identify all of the student’s special education needs, whether or not commonly linked to the disability category in which the student has been identified. 8 N.Y.C.R.R. § 200.4(b)(6)(ix); see also 34 C.F.R. § 300.304(c)(6); R.Z. v. City Sch. Dist. of New Rochelle, 2018 U.S. Dist. LEXIS 56564 (S.D.N.Y. 2018). Additionally, part of any reevaluation of a student, the CSE and other qualified professionals shall review the existing evaluative data on a student and determine whether additional evaluative data are needed. 8 N.Y.C.R.R. § 200.4(b)(5).

The Regulations of the N.Y.S. Commissioner of Education “are designed to ensure that students with disabilities are suitably grouped, requiring that such students be placed with students who have similar levels of academic achievement, social and physical development, and management. needs.” E.P. v. New York City Dep’t of Educ., 2016 U.S. Dist. LEXIS 77891 (S.D.N.Y. June 10, 2016); see also 8 N.Y.C.R.R. § 200.6(h)(2). “New York state regulations implementing the IDEA clearly constrain a school district’s choice of placement classroom.” E.P., supra, citing J.F. v. New York City Dep’t of Educ., 2013 U.S. Dist. LEXIS 63178, 2013 WL 1803983, at *2 (S.D.N.Y. April 24, 2013). Moreover, if a student has been successfully educated by means of a particular methodology or curriculum, and any subsequent placement must transition from that program to a new one in order to benefit meaningfully from the new placement, it must be part of the IEP, or the IEP is invalid.

If a school district defends its IEP, “the use of retrospective testimony about what would have happened if a student had accepted the district’s proposed placement must be limited to testimony regarding the services described in the student’s individualized education program (“IEP”). Such testimony may not be used to materially alter a deficient written IEP by establishing that the student would have received services beyond those listed in the written IEP.” R.E., supra, at 174. Testimony regarding services that do not appear on a student’s IEP may not be used to rehabilitate a deficient IEP or amend that IEP after the fact. R.E., supra, at 185.

School authorities can be expected 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., supra, at 1002.

There can be no delay in implementing a student’s IEP, and the district is required to have an IEP in effect at the beginning of each school year for every student with a disability in that district’s jurisdiction. The failure to do so is a clear denial of FAPE. 20 U.S.C. §1414(d)(2)(A); 34 C.F.R. §300.323(a); 8 N.Y.C.R.R. §200.4(e)(1)(ii); see also, Cerra v. Pawling C.S.D., 427 F.3d 186, 194 (2d Cir. 2005) (school districts must ensure that a child’s IEP is in effect by the beginning of the school year and the parents must be provided a copy); K.L. v. New York City Dept. of Educ., 2012 WL 4017822, at *13 (S.D.N.Y. Aug. 23, 2012), aff'd, 530 Fed. App'x 81 (2d Cir. 2013); B.P. v. New York City Dept. of Educ., 841 F. Supp. 2d 605, 614 (E.D.N.Y. 2012) (district fulfilled its procedural obligation by providing the IEP before the first day of school); see also SRO Appeal No. 20-110; 20-038; 15-099.

In Mr. and Mrs. A. York v. New York City Dep’t of Educ., 769 F. Supp. 2d 403 (S.D.N.Y. 2011), the Court held that failure to offer any placement to the student prior to the start of the school year constitutes a denial of FAPE. In F.B. v. New York City Dep’t of Educ., 132 F. Supp 3d 522 (S.D.N.Y. 2015), DOE did not communicate the school placement to the parents as of the deadline for enrollment at a private school, but before the start of the public-school year. The Court, citing M.O. v. New York City Dep’t of Educ., 793 F.3d 236, 244-45 (2d Cir. 2015), held that parents have the right to obtain relevant information in a timely fashion about DOE’s proposed placement and found denial of FAPE. The Court further held that parents had a procedural right to inquire whether the proposed school location had the resources set forth in the IEP. The Court explained that a parent’s IDEA-guaranteed right to meaningfully participate means, at a minimum, the right to obtain relevant and timely information as to the proposed school, and that the parent’s procedural rights do not stop the moment the CSE meeting ends. In C.U. ex rel. G.U. v. N.Y.C. Dep’t of Educ., 23 F. Supp 3d 210 (S.D.N.Y. 2014), the Court held because the procedural protections in the IDEA are intended to ensure substantive outcomes, see Rowley, supra, at 206, it follows that parents have a procedural right to evaluate the school assignment, i.e., the right to acquire relevant and timely information as to the proposed school. In G.U., supra, the student had autism and a seizure disorder, meaning that the proposed school’s ability to implement the IEP affected the student’s safety as well as education.

School districts do not have “carte blanche” to assign a child to a school “that cannot satisfy the IEP requirements.” T.Y. v. New York City Dep’t of Educ., 584 F.3d 412, 420 (2d Cir. 2009). Additionally, parents who challenge a proposed IEP are not foreclosed from all prospective challenges to a proposed school location’s ability to implement the IEP. R.E., supra. “To conclude otherwise would require parents to send their child to a facially deficient placement school prior to challenging that school’s capacity to implement the child’s IEP, which is “antithetical to the IDEA reimbursement process.” See V.S. ex rel. D.S. v. New York City Dep’t of Educ., 25 F. Supp.3d 295, 300 (S.D.N.Y. 2014); M.O. supra, at 244-45.

Reimbursement/Direct Funding for a Nonpublic School

When a school district fails to offer or provide a FAPE, that school district may be obligated to reimburse parents for the costs of private educational services obtained for their disabled student. Generally, reimbursement of such costs is required when: 1) the services or educational program and placement offered by the school district are inadequate or inappropriate for the student; 2) the services or educational program and placement selected by the parents and provided to the student are appropriate; and 3) the equitable considerations and related factors support the parent’s claims. Florence Cty. School Dist. Four v. Carter, 510 U.S. 7 (1993); School Committee of Burlington v. Dept. of Educ., 471 U.S. 359, 369-70 (1985); R.E., supra, 694 F.3d at 184-85.

The second “prong” of the Burlington/Carter analysis requires the Parent to show that the private placement implemented must be “proper under the Act,” i.e., the private placement offered an educational program which met the student’s special education needs. See Gagliardo v. Arlington C.S.D., 489 F.3d 105, 112-15 (2d Cir. 2007); Walczak v. Florida U.F.S.D., 142 F.3d 119, 129 (2d Cir. 1998).

Parents seeking reimbursement bear the burden of showing that the private placement for their disabled child was appropriate. Generally, the same factors and criteria that apply in evaluating the district’s placement are also applicable in determining whether the parent’s placement is appropriate. Gagliardo, supra, 489 F.3d at 112; see also Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006). Thus, a parental placement is appropriate if it provides instruction specially designed to meet the unique needs of the student. 20 U.S.C. §1401(29); N.Y. Educ. Law §4401(1); Hardison v. Bd. of Educ., Oneonta City S.D., 773 F.3d 372, 386 (2d Cir. 2014); Gagliardo, 489 F.3d at 114-15.

In Gagliardo, supra, the Second Circuit held that the specific standard for determining whether the Parent have satisfied their burden of showing the appropriateness of their unilateral placement is:

[The Parent] need only demonstrate that the placement provides educational instruction specifically 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.

Parental placement need not be located at a state-approved school or institution to be eligible for reimbursement. Florence County Sch. Dist. v. Carter, 510 U.S. 7, 13-14 (1993). In fact, the parental placement school or institution need not comply with federal or state regulatory procedures and requirements regarding the provision of special education services to students with disabilities. For example, a non-state-approved entity is not required to develop their own IEPs for students, nor are they mandated to provide services in compliance with an IEP. Id.

A parent need only show that, at the time of the placement, that the placement was “likely to produce progress, and not regression.” Gagliardo, supra, at 112. The necessary inquiry regarding the appropriateness of a unilateral placement is whether the program reasonably could have been expected, at the time of placement, to offer meaningful educational benefit to a student. See, e.g., B.R. ex rel. K.O. v New York City Dep’t of Educ., 910 F. Supp 2d 670, 677 (S.D.N.Y. 2012).

A parent is not held to the same legal standard as a school district in demonstrating the appropriateness of a unilateral placement as a school district is in showing it offered a student a FAPE. See, e.g., C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836-37 (2d Cir. 2014). (“The test for the Parent’s private placement is that it is appropriate, and not that it is perfect.”).

School districts that seek “to avoid reimbursing parents for the private education of a disabled child can do one of two things: give the child a free appropriate public education in a public setting, or place the child in an appropriate private setting of the State’s choice. This is the IDEA’s mandate, and school officials who conform to it need not worry about reimbursement claims.” Carter, supra, at 15.

Neither the New York Education Law nor the IDEA obligates a parent to prove at hearing that they are unable to afford the cost of their child’s placement at an appropriate private school. Special education placements are to be provided “at no cost to the parent.” N.Y. Educ. Law § 4401(1); Letter to Hampden, 49 IDELR 197 (OSEP 2007). The entitlement to a FAPE cannot depend on a family’s ability to front the cost of a unilateral placement and then wait, potentially years, for reimbursement. See, e.g., D.A. v. N.Y.C. Dept. of Education, 769 F. Supp.2d. 403, 427 (S.D.N.Y. 2011).

Equitable Considerations

The third prong of the Burlington/Carter analysis is that a parent’s claim for reimbursement (or direct payment) must be supported by equitable considerations. Reimbursement/direct payment may be reduced, or denied, if a parent fails to timely raise the appropriateness of an IEP, fails to make their child available for an evaluation, or acts in an unreasonable manner. The latter often involves a parent who obstructed or was uncooperative in the district’s efforts to meet their obligations under the IDEA. See C.L. supra, at 840.

When considering equitable factors, courts “may consider many factors, including, inter alia, whether plaintiff’s unilateral withdrawal of her child from the public school was justified, whether plaintiff provided the Department with adequate notice of the withdrawal, whether the amount of private school tuition was reasonable, whether plaintiff 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). See also C.L., supra, at 840 (where parents’ pursuit of a private placement “was not a basis for denying their tuition reimbursement, even assuming, as the District contended before the IHO, that the parents never intended to keep [student] in public school.”) (emphasis added).

FINDINGS OF FACT

Student is a redacted year-old boy who resides with his family in Brooklyn. (Ex. A; Tr. 79). Student has diagnoses of attention deficit hyperactivity disorder (“ADHD”) and Dyslexia. (Ex. A; see also Ex. F; Tr. 80). Student exhibits low frustration tolerance and can be argumentative and aggressive. (Ex. A; see, e.g., Tr. 51-52). Student has attended Private School for the past six (6) SYs, during the 2022-2023 SY pursuant to an unappealed Findings of Fact and Decision (“FOFD”) in IHO Case No. 223116. (IHO Exs. I, II).

DOE convened a CSE on February 15, 2023 to develop an IEP for Student for the 23/24 SY (“23/24 IEP)^[3]. Parent disagreed with the recommendation for a 15:1 class with related services. (Ex. A; Tr. 82).

By Ten Day Notice (“TDN”) dated August 25, 2023, Parent notified DOE of her intention to re-enroll Student at Private School for the 12-month 23/24 SY and seek public funding for the placement. (Ex. B).

Parent entered into a contract with Private School for enrollment during the 23/24 SY on September 5, 2023. (Ex. D). The total tuition at Private School for the 23/24 SY is $66,100.00. (Id.).

Private School is a non-approved school with seventeen (17) small special education classrooms that are co-located in five (5) mainstream schools. (Ex. C). Students at Private School have IDEA classifications of Learning Disabled, Speech and Language Impairment, or Other Health Impaired. (Id.). Classes are grouped by grade level and are further grouped within each classroom by instructional level. (Id.). Private School engages its own related service providers who are licensed in New York State in their respective disciplines, including speech and language therapy (“SL”), occupational therapy (“OT”), and counseling. (Ex. C; Tr. 49).

During the 23/24 SY, Student has transitioned from the Elementary School to the High School level at Private School and attends a 5:1 class with peers who have similar needs. (Tr. 50-52). Student requires, and receives, a great deal of individualized attention and is presented with teaching tools, including, inter alia, graphic organizers, semantic webs, checklists, and technology from which he derives a benefit. (Tr. 56-58). He receives interventions and strategies to mitigate his impulsivity and deficits in executive functioning in all subjects, including math. (Tr. 56-58). Student’s behavior is rated and tracked on a behavior rating scale, which helps Student remain focused and regulated. (Tr. 63).

There is a “Religious Studies” period during the day, during which religious texts are used to teach academic skills such as reading comprehension, vocabulary, grammar, and critical thinking, problem-solving, and concept formation. (Ex. E; see Tr. 71-77). Although religious texts are used in this period, prayer is not part of students’ daily schedule. (Tr. 74).

Student experienced some behavioral and academic regression in response to the transition from Middle School to High School environment but has since made considerable progress remaining “on task.” (Tr. 64).

ANALYSIS AND CONCLUSIONS OF LAW

DOE Failed to Offer or Provide Student with a FAPE

As an initial matter, DOE presented no witnesses and its proposed exhibits were excluded. This is effectively conceding that it failed to meet its burden under the New York Education Law. Far from offering a cogent explanation for its recommendations, DOE instead opted to leave all of the heavy lifting regarding Student’s placement, as well as participation at the hearing, to Parent.^[4]

Parent’s Proposed Educational Placement is Appropriate

The record establishes that Student has benefited from the educational program provided at Private School. (Exs. C, E, F; Tr. 45-78).

Director provided extensive credible testimony concerning Private School and how the program Student receives is meeting his significant needs. (Tr. 45-78). Student receives a curriculum designed to result in a New York State Regents diploma. (Tr. 68). Student receives two sessions each per week of SL and counseling to address communication and behavioral concerns. (Tr. 62). I give considerable weight to the testimony of Director with respect to how Student’s program is designed to meet his multi-faceted special education needs. (Tr. 45-78).

At the time Parent placed Student at Private School, it was entirely reasonable to conclude that the placement where Student had attended for five years prior, where Student showed considerable progress, was capable of meeting Student’s special education needs.

Parent has therefore established by a preponderance of the evidence that Private School provides Student with special instruction, supported by related services, that will enable him to receive an educational benefit.

Equitable Considerations Favor Parents

As an initial matter, DOE has effectively conceded that its 23/24 SY placement failed to offer Student a FAPE. Parent attended the IEP meeting and provided TDN to DOE. (Ex. B). There is no evidence that Parent attempted to thwart DOE in any way. Accordingly, DOE’s failures stand on their own and are in no way fairly traceable to any action (or inaction) on Parents’ part. See, e.g., E.M, supra. Parent’s interest in a nonpublic placement in light of DOE’s failures is entirely reasonable and, as a matter of law, is no bar to Student’s placement in, or funding for, such a placement. C.L., supra.

DOE argues that, because a portion of Student’s school day includes religious instruction, that the award of tuition should be reduced accordingly. (Tr. 91-92). DOE asserts that recent Supreme Court precedent, where a state law that excluded sectarian schools from receiving public funding for tuition violated the First Amendment’s Free Exercise Clause, does not upend protections against the establishment of religion set forth in the Establishment Clause. See, e.g., Carson v. Makin, 596 U.S. ___ (June 21, 2022).

There is no need here to engage in an analysis of the tension between the Free Exercise and Establishment Clauses of the First Amendment. Here, there is a clear secular purpose to the instruction provided using religious texts. Moreover, ordering DOE, in light of its failure to offer or provide an appropriate educational placement to Student, to fully fund placement at Private School, which has one period per day of religious instruction, where the “religious instruction” uses holy books as texts to teach academic skills that Student requires in order to receive an appropriate education, in no way offends the traditional (now mostly abandoned) Establishment Clause “Lemon Test,” and certainly does not offend any analysis of the Establishment Clause that remains after recent Supreme Court decisions. See. e.g., Lemon v. Kurtzman, 403 U.S. 602 (1971); see also SRO Appeal No. 23-133 (October 16, 2023).

While the reasonableness of the cost of tuition is an equitable factor (E.M., supra), DOE has failed to offer any evidence that a placement exists that provides a similar level of services and support and costs less than Private School. In fact, DOE raised no objection as to the cost of Student’s placement at Private School, other than to argue that the periods of religious instruction should be excluded, which I have found to be without merit. Therefore, I cannot but conclude that the cost of Private School is reasonable.

While a showing of financial hardship is unnecessary to demonstrate that a parent is eligible for direct funding for a unilateral placement (D.A., supra), Parent testified that the family’s annual income is such that they are unable to pay upfront for Student’s placement and then have to wait for reimbursement. (Tr. 87-88).

DECISION AND ORDER

IT IS HEREBY ORDERED that DOE procedurally and substantively denied Student a FAPE during the 2023-2024 school year; and

IT IS FURTHER ORDERED that Parents’ unilateral placement at Private School is appropriate; and

IT IS FURTHER ORDERED that equitable considerations favor a full award of the cost of Student’s placement at Private School for the 2023-2024 school year; and

IT IS FURTHER ORDERED that DOE shall

1. Reimburse Parents for all out-of-pocket costs associated with Student’s placement at Private School during the 2023-2024 school year; and
2. Reimburse and/or pay directly to Private School the remaining tuition balance for the 2023-2024 school year; and
3. Provide appropriate transportation to and from Private School; and

IT IS FURTHER ORDERED that DOE shall provide a copy of this decision to any person participating in any review of Student’s placement that takes place during the next twelve (12) months from the date of this decision, at least three (3) days in advance of any such meeting.

Dated: New York, NY

December 8, 2023

/s: John Henry Olthoff/

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within forty (40) days 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, pursuant to Section 4404 of the New York 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 twenty-five (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, the 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 (2) 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 are available at http://www.sro.nysed.gov.

DOCUMENTATION ENTERED INTO THE RECORD BY DOE

None

DOCUMENTATION ENTERED INTO THE RECORD BY PARENT

Exhibit	Description	Date	# of Pages
A	Due Process Complaint	08/31/2023	4
B	10-Day Notice	08/25/2023	2
C	Private School Program Description	23/24 SY	1
D	Student Enrollment Contract	09/05/2023	1
E	Private School Class Schedule	23/24 SY	1
F	Private School Individualized Education Plan	December 2022	4

Footnotes

[1] “(Ex. __)” and “(Exs. __)” refer to an exhibit or exhibits entered into the record at the impartial hearing, while “(IHO Ex. __)” refers to an exhibit entered into the record by the IHO. “(Tr. __)” refers to the page of the hearing transcript cited.

[2] DOE cites to SRO Appeal No. 21-177 for the proposition that “Courts have not enforced absolute adherence to the 5-Day Rule for disclosure but have upheld the discretion of administrative hearing officers who consider factors such as the conditions resulting in the untimely disclosure, the need for a minimally adequate record upon which to base a decision, the effect upon the parties’ respective right to due process, and the effect upon the timely, efficient, and fair conduct of the proceeding.” (See also Tr. 33-34). This is all well and good; however, DOE did not present any witnesses and declined to defend its placement, rendering irrelevant any consideration of the appropriateness of DOE’s offer. As a result, none of the factors mentioned are relevant in this matter. Moreover, in the decision cited by DOE, the SRO affirmed an IHO’s exclusion of DOE’s disclosure due to non-compliance with the 5-Day Rule.

[3] As noted, supra, DOE’s disclosure was excluded and so this IEP is not part of the record.

[4] There is discussion of two DOE IEPs in the record, but neither was entered as an exhibit. The IEP that Parent disagreed with, that informed her decision to reject the public placement, is the above-referenced 23/24 IEP, which recommended a 15:1 special education class. DOE allegedly created another IEP in October 2023, one which recommended an Integrated Co-Teaching (“ICT”) class. However, this IEP was created after the DPC and bears no relevance on this proceeding.