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FINDINGS OF FACT AND DECISION
Case Number: 197175
Student’s Name: REDACTED
Date of Birth: REDACTED
District: REDACTED
Hearing Requested By: Parent
Date of Hearing: February 8, 2021
March 3, 2021
March 17, 2021
April 28, 2021
June 1, 2021
June 29, 2021
July 26, 2021
September 13, 2021
October 25, 2021
December 1, 2021
December 28, 2021
February 28, 2022
March 9, 2022
April 26, 2022
April 28, 2022
April 29, 2022
May 6, 2022
May 20, 2022
June 17, 2022
June 30, 2022
October 12, 2022
November 30, 2022
January 23, 2023
March 14, 2023 `
Actual Record Closed Date: May 30, 2023
Hearing Officer: Judith Schneider, Esq.
An Impartial Hearing for the New York City Department of Education (“DOE” or “the district”) Impartial Hearing Office, 131 Livingston Street, Brooklyn, New York, pursuant to the Individuals with Disabilities Education Improvement Act (“IDEIA”), 20 U.S.C. §1415, and Article 89 of the Education Law of the State of New York, regarding the special education program of REDACTED (“the student”) was conducted by me (remotely via videoconference.)
Procedural History
The proceeding was initiated at the request of the parents by correspondence dated August 27, 2020. A corrected hearing request also dated August 27, 2020 was filed on August 31. 2020. (Exs. 1, RR, SS, TT) An Impartial Hearing Officer was appointed on January 21, 2021 but recused from this matter on December 1, 2021, after the conduct of 11 status conferences/hearings. I was appointed Impartial Hearing Officer on December 3, 2021. A prehearing conference was conducted on December 10, 2021 at which I was informed that the district wished to proceed to a hearing. (T92) Numerous hearings were thereafter conducted.
A pendency agreement between the parties executed on September 17, 2020 provided: SEIT 10 hours per week; Occupational Therapy (“OT”) 2x30 (1:1) per week; Speech Language Therapy (“SLT”) 2x30 (1:1). (Ex. 3)
Subsequent to my appointment parties moved to extend the compliance date on various occasions for anticipated testimony, the scheduling of witnesses and submission of evidence, receipt of the transcript and closing statements and the issuance of the decision. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution of this matter. Accordingly, the requests for extensions of the compliance dates were granted.
The current compliance date is June 25, 2023. The record closed on May 30, 2023 upon my completion of verification of the evidence. [1]
Positions of the Parties The parents assert failure to comply with “Child Find” requirements in the 2018-2019 SY and failures to provide a FAPE in the 2018-2019, 2019-2020 and 2020-2021 school years. The parents also claim violation of Section 504 of the Rehabilitation Act in each of the above referenced years. The parents seek reimbursement/payment for parent expenses for preschools which the student attended as well as for social skills programs/activities, compensatory services including for services recommended but not provided and independent educational evaluations. (Ex. I) [2]
The district a presented no witnesses and conceded that it had not provided a FAPE for the school years at issue. (T180, 181, 194) The district did not submit a closing statement, has asserted no specific objections with regard to the relief sought by the parent and has not articulated what relief it believes would be appropriate if the parent prevails.
Cases Presented The district presented no witnesses but submitted documents for admission into evidence. The parent submitted documents for admission into evidence and presented the testimony of: the student’s father (“the parent”); REDACTED, the SEIT who provided services to the student during the 2020-2021 SY (“the SEIT”). Also testifying pursuant to parent subpoena were: REDACTED, CPSE School Psychologist; REDACTED School psychologist for T-5 review.
A list of documents in the record is appended.
Findings of Fact and Conclusions of Law
A Factual Findings The following constitutes my factual findings and is established by credible testimony and documentary evidence:
The student turned 3 in October 2018. (Exs. 1, 2) He received no Early Intervention services and there is no indication that any were requested. (Ex. XX) In March 2018, the parents enrolled the student in a preschool (Preschool 1) in a 3-hour morning class with 15 students, a head teacher and two assistant teachers (15:1:2). For the period commencing the week of September 10, 2018 through June 2019 the tuition was $19,450 (T480; Ex. C) [3] There is no claim or evidence that it was a special education preschool. Although there was at least one special education teacher at the school there is no indication that she worked with or consulted about this student. (Ex. C) Evidence as to the program has not been submitted.
In October 2018 the parents were informed by Preschool 1 staff of behavioral issues including elopement, inattention, noise sensitivity and lying on the floor as well as difficulties engaging with other students. (T481-482) At the parents’ request, the student’s at-home childcare provider was permitted to push in. (T483) When she was unable to attend with the student, Preschool 1 would request the removal of the student, usually within the first 30 minutes of his attendance. (T483, 503-504) A private OT evaluation was obtained in November- December 2018 and the student received OT in connection with a possible sensory processing disorder. (Ex. XX;T483-484) [4]
By letter dated March 19, 2019 the parents requested a CPSE evaluation. (Ex. XX;T486) Parental follow up efforts on April 1 and April 19, 2019 to confirm receipt were unsuccessful. (T490-491) On April 29, 2019, the parents were informed that on April 10th the case had been “opened.” (T491)[5] The parents were told that the consent for evaluation should be executed on the date of the first evaluation. (Ex. 13) The earliest evaluation date obtainable for CPSE evaluations was May 27, 2019. (T491, 910-911) CPSE evaluations (including an SLT evaluation) and observations were conducted from May 27, 2019-July 9, 2019. (T495-497; Exs. E, 5-12)
In June 2019, the parents were advised that Preschool 1 would not permit the student to return in the fall due to his behaviors and they informed the CPSE as to that. (T503-505)
The student was enrolled in a summer camp program for neurotypical children in which he was placed in a group of 20-30 with 1 counselor but was asked to leave after one day due to his behaviors. (T1150) Another placement was necessary as the parents were expecting another child very shortly. (T1150, Ex. 19) The parents placed the student for two weeks in a “developmental” camp, provided by REDACTED which provided a social skills program at the cost of $3800 for two 1-week programs with some 8-12 children and 3-4 staff members. (T1215-1217, 1148-1157, 1164-1165; Ex. WW) The record does not include documentary evidence as to the program provided and/or any student benefits. It was the parent’s understanding that the director was professionally qualified with regard to early childhood education. (T995-997; Ex. WW)
By letter dated July 22, 2019, the parents were informed that the CPSE review would be held on August 22, 2019. (Ex. 17)
The CPSE convened on August 22, 2019 (the “August 2019 IEP”) and classified the student as a Preschool Student with a Disability. (T499-500 Ex. 4) The IEP was to commence on September 4, 2019, and provided a 10-month program of: SEIT (10 hours per week; SLT (1x30 group and 1x30 (1:1)); OT 2x30 (1:1) per week. (Ex. 4) The parents request for 15 SEIT hours was rejected, and they were informed that 10 hours per week was the maximum that could be recommended. (T508-809, 892-894) The IEP also specified that the student was eligible to receive in the period July 1, 2020-August 17, 2020 (the following summer): SLT 2x30 (group of 2); OT 2x30 (individual). (Ex. 4) The parents informed the CPSE that they were considering the REDACTED Preschool (“Preschool 2”). (T430)
Preschool 2 utilized an approach which included daily documentation of activities and communication with parents. (Ex. YY) [6] School philosophy focused on language and socialization to address behaviors rather than rewards and prompt dependance and was characterized as the Bank Street philosophy (T430; Ex. YY) Staff included certified early childhood special educators, the program followed Department of Health and Mental Hygiene regulations regarding staffing, classroom size and health and safety regulations, all staff had pediatric and CPR certifications. (Exs. YY, FFF) A tuition contract was executed on August 27, 2019. (Ex. G; T514) The tuition specified for the 10-month program (Monday-Friday 9-1) was $21,000 for a member. (Exs. G, K)
The student was placed in a small classroom with one teacher, two teacher assistants and 2 SEITS at various times. (T424-425) The school day was shortened for this student in that year as he was deemed not ready for a full-day program. (T1194-1195, 1197, 1204-1206) The recommended SEIT and OT and SLT were provided by the DOE. (T515-518; Ex. I) The parent supplemented DOE services (through insurance and parent payment) with a speech therapist who provided push-in support. (T517-518) One to one support was also provided by the class teaching assistants when the SEIT was not present. (T521)
During the school year the parent provided an estimated some 20 sessions of a social skills group also run by REDACTED which focused on collaborative play, eye contact and receptive and expressive language and some small progress with regard to eye contact and conversation was noted. (T523-525, 960-962, 995-996, 1156). [7]No documentary evidence of the cost of the after-school program was provided but the parent estimates that the cost for the groups was between $200 and $1200. (T524) Documentary evidence as to the contents of the program is not in the record. The services were to give the student more than he would receive in an educational setting. (T996)
The CPSE reconvened on February 13, 2020, classified the student with Speech-Language Impairment, added 10 hours of SEIT to the student’s summer 2020 program and replaced (specifying the implementation date as September 5, 2019) one of the 2 individual SLT sessions with a group of 2. (Exs. 16, 4, T584-585) On the same date the parent acknowledged receipt of a Final Notice of Recommendation/Modification of IEP notice with attached information about procedural safeguards and specifically referenced the impartial hearing process in the event of disagreement with the determination made. (Ex. 17)
Although the student continued to elope, lack focus and struggle with social skills as well as with transition back to school resulting in maladaptive behaviors after the winter break, he made progress in the 2019-2020 SY prior to the COVID shutdown in March 2020. (T519-520)
Parental consent for a Turning 5 review (the “T5 review) was signed on January 6, 2020. (Ex. 21, T537) Prior to the T5 review the parents participated in the Kindergarten Choice (“KG Choice”) program selected local zoned school (“the public school”) as first choice. (T540-541; Exs, LL)
The CSE convened on March 13, 2020, by phone, and issued a Turning 5 IEP. (Ex. 18) The student’s disability classification was determined to be Speech Language Impairment. (Ex. 18) The only new evaluative material obtained was a classroom observation and an updated social history. (Exs. 18, 19, 20) The parents were offered 2 programs for the 2020-2021 school year, commencing September 2020: a general education class or an ICT class. (T542; Ex. 18) The CSE was informed of parental concerns that adequate 1:1 instruction was not provided but concluded that ICT was the preferable program of the two proposed for consideration. (T545-546; Exs. 18, 23) The IEP recommended: ICT (25 periods per week- ELA, Math, Social Studies); Counseling (1x30 (4:1); SLT (3x30 (3:1); OT (2x30 (2:1). One to one related services were no longer provided. (Ex. 18) Summer 2020 services were provided pursuant to the CPSE IEP. (Ex. 18)
The evidence in this matter includes a Prior Written Notice (Notice of Recommendation) (“FNR”) dated April 1, 2020 and addressed to the parents which concerns the March 13, 2020 IEP and which directs the parents to information concerning procedural rights. (Ex. 23)
The student’s 2019-2020 services were interrupted during the COVID shutdown. (T548) Preschool 2 services were attempted remotely but due to student focusing difficulties his school day was further reduced. (T565-566, 1205-1206) The student participated in SLT once per week and OT once per month due to student engagement difficulties. (T548-549) SEIT services after the shutdown were limited and not effective in March and April and the parent sought from the CPSE another SEIT who could effectively provide remote instruction. (T549-551, 555-565) In early June 2020 a new SEIT was put in place for 10 hours per week. (T550-552, 569-570)
In March 2020, concerned about the student regression during breaks and his developmental delays, the parent had requested placement in the public school’s PreK program and was told that that was not possible due to his age. (T578)
For summer 2020, the student was to receive SEIT 10 hours per week, SLT 1x30 (1:1) and 1x30 (2:1) and OT 2x30 (1:1). (Ex. 16) Only virtual services were provided in that period due to the COVID shutdown. With regard to related services, the parent testified that the student received no OT and only one SLT session (virtual) per week from the district. (T570-572). The provider’s Progress Report, however, specifies that the SLT session provided was one hour (virtual). (Ex. J) It also states that the student received 10 hours of SEIT virtually. (Ex. J) The report specified progress on most of the SEIT goals. (Ex. J)
The parents executed a contract with Preschool 2 on August 6, 2020. (T587) Tuition for the 2020-2021 SY (10 months) was $25,750. (Exs. K, M, N, O, P)
The parents filed the instant DPC, dated August 27, 2020, on August 31, 2020. (Exs. 1, 2: T590) The district thereafter agreed that the student’s pendency entitlements included, in an extended school year (“ESY”) 10 hours per week of SEIT (1:1), OT and SLT. (Ex. B,; T42) [8] The DPC had included a request for DOE funding for various independent evaluations (IEEs) (Ex. 1) In a resolution agreement dated February 9, 2021, the DOE agreed to fund the independent Neuropsychological Evaluation, up to $5000, and to reconvene the CSE after receipt of independent Neuropsychological, Speech-Language and Occupational Therapy evaluations. (Exs. 3; T600-601)
OT and SLT providers were obtained in early to mid-October 2020. (T594-595) A SEIT commenced providing services about mid-September 2020, one hour in the morning and one hour in the afternoon. (T427, 429-430, 596-598)
The student’s Preschool 2 class in the 2020-2021 SY had some 13 students, one teacher and 2 assistant teachers. (T431)
During the 2020-2021 SY the student continued to exhibit difficulties with elopement, focus and attention, easy frustration and maladaptive behaviors including hitting his SEIT. (T431-435, 447-450) However, he made slow and steady progress with respect to, among other things, the ability to attend, self-control, sitting still, fine motor skills, and social skills including the ability to hold conversation and consistently play with another child, completing some two and three step instructions and toileting issues as well as in reading and math and ADL skills. (T441-445, 453-454, 624-642, 648-651) In a Progress Report dated January 30, 2021, the SEIT stated that the student needed continued 1:1 SEIT support to socialize and interact with peers appropriately, to improve focus and attention, for speech and language skills and to function appropriately in the classroom. (Ex. UU)
An independent Neuropsychological and Educational Evaluation was conducted in February-March 2021. (Ex. Q) It was reported that the student performed at a very high level in many cognitive, intellectual and academic areas and had highly developed intellectual abilities. However, he had significant weaknesses in the areas of fine motor skills and tactile perception, had meaningful struggles with attentional and behavioral control and struggled with social understanding. He was described as a “twice exceptional” student. The student was diagnosed with Developmental Coordination Disorder with moderate to severe intensity. Symptoms consistent with ADHD were reported although it was noted that the student might show significant improvement in that area over the next few years. A nonverbal learning disorder “best described” as Other Specified Neurodevelopmental Disorder was also suggested by the evaluator as a diagnosis. (Ex. Q)
The CSE reconvened on March 25, 2021. (T662; Ex. JJ) It continued to recommend an ICT program with OT, SLT and Counseling. (Ex. JJ; T662) The parents were advised at that review that the recommendation would permit a kindergarten placement even though the student was considered over-age. (T662-665) However, the parents were shortly thereafter informed by the CSE that that was not the case, and the student would be placed in 1st grade. (T679-680, 693-694; Ex. II) Subsequently, staff of various schools informed the parent that the student had to be registered as a 1st grader in fall of 2021 as a consequence of his age. (T694-696) The parents were also informed that they could not participate in Kindergarten choice for the 2021-2022 SY. (T696-699; Ex. LL)
The parents moved to a nearby State after the end of the 2020-2021 SY and placed the student in a small general education Kindergarten public school class (24 (approximately):1:1) for the 2021-2022 SY. (T707-716, 986) After evaluation a 504 Plan was provided. (T990, 998) During the 2021-2022 SY the student progressed in many areas but continued to struggle in others. (T709-717) Behaviors at home worsened and he continued to struggle to make friends. (T729-731)
B Conclusions [9] The district has conceded that it failed to provide a FAPE for each of the school years at issue. It has not, however, specified the deficiencies it does not dispute occurred. It has not submitted a closing statement or asserted a specific position with regard to the relief sought by the parent.
The parent unilaterally placed the student in various programs during the school years at issue for which reimbursement is sought as compensatory relief or alternatively through a Burlington/Carter analysis. Further the parent asserts student compensatory entitlement to services recommended but not provided. Requested relief also includes payment for an agreed upon IEE and the provision of other IEEs.
With regard to compensatory education services when there is a denial of FAPE, the district has the burden of proof and persuasion. Appeal No. 11-091 n. 10. Moreover, it is not sufficient for the district to simply criticize the remedy sought by the parent but rather it must provide credible evidence to support its own view of what is warranted. Appeal No. 11-091. See also Appeal No. 14-014.
In fashioning an appropriate compensatory education remedy, “the inquiry must be fact-specific, and … the ultimate award must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place.” Reid v. Dist. of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005); see also Newington Bd. of Educ., 546 F.3d at 123; Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 (11th Cir. 2008) ("[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act").
Private school funding may be awarded as compensatory education. See Draper
However, compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]).” Appeal No. 11-027. The parent is not entitled to all relief claimed when a denial of FAPE is conceded. As discussed above, relief must be commensurate and equitable. Further, with regard to the inquiry that must be made, I note that it is well established that in developing an IEP a district need not provide the best possible program- i.e. maximize potential. Rowley, 458 U.S. at 197 n.21, 199; see Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132. I conclude that similarly there is no entitlement to the best possible program with regard to relief when a district has failed to provide a FAPE. I therefore consider what is appropriate in view of the DOE’s conceded failures here.
- • 2018- 2019 SY
It is undisputed that the student received no services from the district in the 2018-2019 SY. The parent seeks reimbursement for tuition at Preschool 1 ($19,450) as well as compensatory services equivalent to 20 hours of SEIT for every week subsequent to the date the student turned 3. The tuition reimbursement requested is for the entirety of the 2018-2019 SY although the student did not turn 3 until mid-October. The basis for the request for 20 hours per week of SEIT has not been provided. I note that the student ultimately received 10 hours per week of that service and the closing statement does not contest that number but rather adopts it in other relief requests. (Ex. I)
The parent asserts “Child Find” violations as well as violations of Section 504 of the Rehabilitation Act and deficiencies in the district’s handling of the parent’s March 2019 request for an evaluation.
To support a finding that a child find violation occurred “the District must have overlooked clear signals of disability or been negligent by failing to order testing, or there must have been no rational justification for deciding not to evaluate.” J.S. v. Scarsdale UFSF, 826 F.Supp.2d 635, 562 (S.D.N.Y. 2011) (internal quotations and citations omitted.). The obligation is triggered when a school district has “reason to suspect a disability and reason to suspect that special education services may be needed to address the disability.” J.S., 826 F.Supp.2d at 660.
In this matter there is no claim that the district knew anything about the student until after the mid-March 2019 request for evaluation. Accordingly, it had no reason to suspect a disability. Further, I note there is no evidence of gross misconduct or intentional discrimination in violation of Section 504. Rather the parents’ claim appears to be bottomed on a claim that the district had an obligation to notify all facilities in New York City called schools or that provided educational services about child find obligations and has failed to demonstrate that it did so. (See Ex. 1) I conclude that that is a matter of district wide policy concerning which I do not have jurisdiction. Accordingly, the parent’s child find and Section 504 claims with regard to the 2018-2019 SY are denied.
However, the parent has also claimed deficiencies in the handling of the request for evaluation once filed and the district has conceded that it failed to provide a FAPE for the instant school year. I note with regard to the parent’s claim, the uncontested evidence of district institutionalized procedures to skirt timelines. Further, the district has made no claim with regard to its view as to the appropriate relief in the circumstances here.
Further, I note that under §§1412 and 1415 of the IDEA, a free appropriate public education is available to all children with disabilities residing in the State between the ages of 3 and 21, and courts and hearing officers have broad authority to grant such relief as they deem appropriate. 20 U.S.C. §§1412(a)(1), 1415(i)(2)(C)(iii); Forest Grove Sch. Dist. v. T.A, 129 S. Ct. 2484, 2492 (S. Ct. 2009); Frank G. v. Bd. of Educ., 459 F.3d 356, 371 (2d Cir. 2006); Appeal No. 08-052.
Based upon the foregoing, the parent’s request for tuition reimbursement is denied. I note the lack of evidence concerning likely educational benefits of that program. However, upon consideration of the equities the student will be provided with 10 hours per week of educational services from a qualified special educator for the period from the time the student turned 3 years old through June 30, 2019.
- • 2019-2020 SY
The district has conceded that it failed to provide a FAPE for the entirety of the 2018-2019 SY and has not proposed a remedy.
- • Summer 2019 For the Summer 2019 period, the parent seeks reimbursement of $3800 for the two-week (7 hours a day) social skills camp provided during the Summer 2019. However, very limited information concerning camp activities, staff and the benefit to the student has been provided. Progress appeared to be principally that he was not asked to leave during that two-week period which I note could be accounted for by the much more intensive staffing. Further, the evidence supports a conclusion that the student’s placement in the camp was occasioned by the family’s situation at that time which necessitated it and not to provide an educational benefit. I conclude that the equities weigh against reimbursement. Reimbursement is denied.
- • 2019-2020 SY (10 month)
The parent seeks reimbursement of $21,327.01 for tuition and fees for the student’s enrollment at Preschool 2 for this school year. The parent also seeks 5 hours of 1:1 instruction from a special education teacher hours for each of 60 days as a consequence of limited instruction provided by Preschool 2 during the COVID shutdown, and compensatory services for such SEIT, SLT and OT sessions as were recommended but not provided as a consequence of the COVID shutdown and the play group provided by the parent during the school year. i) Compensatory services for the recommended sessions missed will be ordered. ii) Reimbursement for tuition for the above school year will be ordered as a compensatory service. However, I conclude that utilization of a Burlington/Carter analysis would yield the same result and note my finding that the parent has established that the program (which was supported by CSE services as well as by SL services provided by the parent) was appropriate for this student [10] However, the contract specified $21,000 and there is no evidence in the record as to the purpose/requirement of fees. iii) With regard to the play group, I conclude that preschool 2 with the support services provided by the district was an appropriate program. Additional opportunities to interact with children is useful but I note that adequately detailed evidence as to the program has not been provided. Further, there is no indication that it was integrated with student’s preschool program. Reimbursement is denied. iv) The parent seeks 5 hours per day (for 60 days) of 1:1 instruction for instructional services missed at the preschool due to COVID. I note no basis for the number of hours sought has been articulated. The preschool program for that year was 4 hours pursuant to contract with evidence indicating that it was often 3-3 ½ hours. Of those hours, 2 hours a day were supported by a SEIT. Such SEIT hours as were not provided will be ordered. The evidence also shows that about one daily hour by class staff was provided virtually. Further, I note that there is no evidence of parental efforts to be reimbursed. Upon consideration of the equities, compensatory services for preschool time missed is denied.
Section 504 claims are not addressed in view of the foregoing findings.
- • 2020-2021 SY
The district has conceded it failed to provide a FAPE and has not proposed a remedy.
- • Summer 2020 It is undisputed that the student did not receive certain recommended related services in this period. The services missed will be provided as compensatory services. However, the parent also asserts that the student required an inclusion program during the summer or the provision of additional servicers and seeks 150 hours of 1:1 instruction as compensation. No support for that calculation has been articulated. I find no basis for a conclusion that the student’s summer program was not appropriate. I note that he progressed during the summer in most of his SEIT goals, that there was no evidence that he regressed significantly over the summer and that the sole evidence concerning regression after breaks concerned the prior year winter break when no services whatever had been provided and when the student was less mature. The parent’s request is denied.
- • 2020-2021 SY (10-month program)
The parent seeks reimbursement by the district for tuition for the 2nd year Preschool 2 program. Reimbursement for parental payment of $25,750 will be ordered as a compensatory service. (Ex. K) However, I conclude that utilization of a Burlington/Carter analysis would yield the same result and note my finding that the parent has established that the program (which was supported by CSE services as well as by SL services provided by the parent) was appropriate for this student The parent also seeks compensatory services for such services as were recommended or provided pursuant to pendency agreement but which the student did not receive. That will be ordered
- • Neuropsychological IEE The district will be ordered to pay for the evaluation at the agreed upon rate of $5000.
- • Other IEES On February 28, 2022, the parent stated, in the opening statement, that these IEES “were no longer being requested.” (T229) Accordingly, they are not now considered.
ORDER
1.The student is entitled to and the district shall provide authorizations for services to be delivered by appropriately qualified providers in the area in which the services are delivered at the providers usual and customary rates in the area in which the services are delivered as set forth below. Services provided must be utilized by June 30, 2025:
For the 2018-2019 SY:
5 hours per week of 1:1 special education instruction for the period from October 14, 2018 through June 30, 2019.
For the 2019-2020 SY:
Special education teacher (1:1), SLT and OT sessions recommended but not provided from March 15, 2020-June 30, 2020.
For the 2020-2021 SY:
Special education teacher (1:1), SLT and OT sessions recommended for Summer 2020 but not provided.
Special education teacher (1:1), SLT and OT sessions agreed to pursuant to the Pendency Agreement in this matter but not provided.
2) The district shall, within 45 days of issuance of this order reimburse the parents for tuition at Preschool2 as follows:
2019-2020 SY: $21,000
2020-2021 SY $25,750
3) The district shall, within 45 days of issuance of this order, reimburse the parents $5000 for the February 23, 2021 Neuropsychological and Educational Evaluation (Ex. Q)
Dated: July 16, 2023
_________/s/_____________
JUDITH SCHNEIDER, ESQ.
Impartial Hearing Officer
PLEASE TAKE NOTICE
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
1 Due Process Complaint (corrected) dated 08/27/2020 filed 08/31/2020 19 pgs.
2 Due Process Response 09/04/2020 3 pgs.
3 Resolution Agreement 02/09/2021 2 pgs.
4 Individualized Education Program (CPSE) 08/22/2020 20 pgs
5 Occupational Therapy Evaluation 07/09/2019 5 pgs.
6 Physical Therapy Evaluation 06/21/2019 3 pgs.
7 Educational Evaluation 06/03/2019 8 pgs.
8 Speech and Language Evaluation 06/05/2019 8 pgs.
9 Psychological Evaluation 05/27/2019 6 pgs.
10 Observation (in home) 05/23/2019 1 pg.
11 School Observation 06/03/2019 2 pgs.
12 Social History 05/27/2019 2 pgs.
13 Consent to Evaluate 05/27/2019 1 pg.
14 Final Notice of Recommendation 08/22/2019 1 pg
15 Meeting Notice 07/22/2019 1 pg.
16 Individualized Education Program (CPSE) 02/13/2020 22 pgs.
17 Final Notice of Recommendation 02/13/2020 1 pg.
18 Individual Education Program (Turning 5) 03/13/2020 19 pgs.
19 Social History Update Survey 01/06/2020 3 pgs.
20 Classroom Observation 02/20/2020 2 pgs
21 Consent to Evaluate 01/06/2020 1 pgs.
22 Meeting Notice Committee on Special Education 03/09/2020 3 pgs.
23 Prior Written Notice 04/01/2020 3pgs.
Parent
A Omitted
B Pendency Agreement 09/17/2020 2 pgs.
C REDACTED 2018-2019 Contract & Schedule of Payments 06/2018 4pgs
D REDACTED T-5 OT Report 02/01/2020 (parent Ex. List incorrect) 6pgs.
E Early Childhood REDACTED Social History & Observation 05/27/2019 pgs. 3
F Omitted
G REDACTED Preschool Contract 2019-2020 08/27/2019 3 pgs.
H Parent Card Statement & Proof of Payment to REDACTED 2019-2020 08/2019-
01/2020 6pgs.
I REDACTED Center Related Services Progress Report Turning 01/24/2020 6 pgs,
J REDACTED Care Services LLC SEIT Quarterly Progress Report 08/01/2020 12pgs
K REDACTED Tuition Confirmation 03/02/2021 1 pg.
L Parent Card Statement & Proof of Payment to REDACTED 2020-2021 11/19/2020-02/16/2021 7pgs.
M REDACTED Tuition Confirmation 03/02/2021 1 pg.
N REDACTED Enrollment Confirmation 03/02/2021 1pg.
O REDACTED 2019-2020 Invoice & Payment Confirmation 03/02/2021 1pg.
P REDACTED 2020-2021 Invoice & Payment Confirmation 03/02/2021 2 pgs.
Q REDACTED Confidential Neuropsychological and Educational Evaluation Summary 02/23/2021, 03/03/2021, 03/09/2021 7 pgs.
R CPSE Standard Operating Procedures Manual Appendix C 06/2001 90 pgs
S Standard Operating Procedures Manual For The Committees on Preschool Special Education June 2001 06/2001 52 pgs
T DOE Guide to the Early Intervention -to Preschool Transition Undated 27pgs.
U A Family Guide to Preschool Special Education Services 2021 44pgs.
V Preschool Behavior Resource Guide: A Framework of Tiered Supports Undated 28 pgs.
W Withdrawn
X Withdrawn
Y Parent Proof of Payments Various Dates in 2018 3 pgs.
Z Parent Email Communication Regarding Monolingual Speech and Language Eval
08/22/2019- 04/08/2020 43 pgs.
AA REDACTED Outpatient Pediatric Speech Therapy Initial Evaluation 04/15/2019 6 pgs.
BB Letter to CSE from 14th Street Y 01/23/2020 1pg.
CC REDACTED Occupational Therapy Student Progress Report Turning 5
02/01/2020 (Parent Ex. List incorrectly dated) 6 pgs.
DD Smile Center Speech-Language Pathology Student Progress Report Turning 5
01/24/2020 6 pgs
EE OMITTED
FF Final Notice of Recommendation/Modification of IEP
06/05/2020 (dated incorrectly on parent exhibit list) 1 pg.
GG Parent Emails with DOE Regarding School Placement 06/17/2020-08/27/2020
3 pgs
HH Optimal Care Services Quarterly Progress Report 08/03/2020 12 pgs.
II Prior Written Notice May 3, 2021 05/03/2021 3pgs.
JJ Prior Written Notice May 9, 2021 05/09/2021 6pgs.
KK New York City Independent Budget Office Report: Are Children Born Later in the Year More Likely To Be Identified as Students With Disabilities? Undated
2 pgs.
LL 2020 NYC Kindergarten Admissions Guide 2020 94 pgs.
MM Birth-to-Five Policy Handbook 11/2021 279 pgs.
NN New York State Prekindergarten Foundation for the Common Core Undated
62 pgs.
OO The New York State Prekindergarten Learning Standards 2019 81 pgs.
PP The New York State Kindergarten Learning Standards 2019 43 pgs.
QQ Withdrawn
RR Email Proof of Service of DPC, Pendency 08/27/2020 2pgs.
SS Email Proof of Service of Corrected DPC, Pendency 08/31/2020 2pgs.
TT Corrected IH Request via Email 08/31/2020 2pgs.
UU Proposed Pendency Agreement 08/27/2020 2 pgs.
VV SEIT Progress Report 01/30/2021 9 pgs.
WW REDACTED Inc Invoice 08/15/2019 1pg.
XX Parent Letter to CSE Regarding Request for Speech and Psychological Evaluation
03/19/2019 2 pgs.
YY REDACTED Preschool Handbook 2019-2020 2019-2020 16 pgs.
ZZ Email Correspondence between first SEIT, private SL therapist who pushed in to Preschool 2 and parents,Various Date in 2019 44 pgs.
AAA REDACTED House 302 Progress Letter 2019-2020 05/26/2020 4 pgs.
BBB REDACTED Phase in Schedule 2020-2021 2020-2021 1 pg.
CCC REDACTED House 302 Progress Letter 2020-2021 05/06/2021 5pgs.
DDD Parent Emails with REDACTED Regarding Open House and Follow Up
02/04/2021-02/05/2021 2 pgs
EEE New York City Independent Budget Office Report: Are Children Born Later in the Year More Likely To Be Identified as Students With Disabilities? February 3, 2020 3 pgs
FFF REDACTED Staff Documents Printed on 10/03/2022 2 pgs
Impartial Hearing Officer
I Parent Closing Statement
Footnotes
[1] The decision in this matter was delayed due to the voluminous record and technical and other difficulties which prevented my addressing it until recently. I regret that delay.
[2] The parties were informed that any claim alleged in the hearing request and not addressed in its closing statements would be deemed to have been abandoned. (T375). No space constraints were specified by me, and waiver of the regulatory provision was not requested. (Ex. I fn. 1)
[3] The contract in evidence is incomplete. (Ex, C)
[4] That evaluation is not in the record.
[5] The parents had obtained a private SLT evaluation in April 2019. (T 484) That evaluation reported that the student presented with age appropriate expressive and receptive language skills, articulation skill and that no outpatient speech therapy was recommended at that time. (Ex. AA)
[6] Classroom activities are described in Ex. ZZ.
[7] The parent estimated that the student had been in that group from the fall until the COVID shutdown. (T1156)
[8] The pendency agreement specifies it was based upon a June 5, 2020 IEP. (Ex. B) Claims concerning a June 5, 2020 IEP were asserted in the DPC. (Ex. 1) However, no evidence concerning that IEP is in the record.
[9] Record references not specified below are stated above.
[10] The legal standard applicable to a request for reimbursement for educational services is well established. Reimbursement is granted if: (1) the services offered by the Board of Education are inadequate or inappropriate (Prong 1); (2) the services selected by the parent are appropriate (Prong 2); and (3) equitable considerations support the parent's claim (Prong 3). Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); School Comm. of Burlington v. Department of Educ. of Mass., 471 U.S. 359 (1985). In New York State the DOE bears the burden of proof with regard to Prong 1 and Prong 3 and the parent bears the burden of proof with regard to Prong 2. Educ. Law 4404[1][c]