New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 553574 - NYC: 209678

FINDINGS OF FACT, DECISION AND ORDER

Case Number: 209678

Student’s Name: REDACTED,

(hereinafter known as “Student”)

Student’s Date of Birth: REDACTED

Complaint Filed by: REDACTED,

(hereinafter known as “Parent”)

Date Complaint Filed: 7/1/21

District: REDACTED

Dates of Appearances: 1/24/22, 2/14/22, 6/14/22, 6/15/22, 6/23/22, 6/30/22

Impartial Hearing Officer: Barbara Jeanne Caravello, Esq.

Date Record Closed: 5/20/22

NAMES AND TITLES OF PERSONS WHO APPEARED:

January 24, 2022

Appearing for the Parent: REDACTED

Appearing for the District: REDACTED

February 14, 2022

Appearing for the Parent: REDACTED

Appearing for the District: REDACTED

June 14, 2022

Appearing for the Parent: REDACTED

Appearing for the District: REDACTED

June 15, 2022

Appearing for the Parent: REDACTED

Appearing for the District: REDACTED

June 23, 2022

Appearing for the Parent: REDACTED

Appearing for the District: REDACTED

June 30, 2022

Appearing for the Parent: REDACTED

Appearing for the District: REDACTED

Finding of Fact, Conclusions of Law, Decision and Order

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INTRODUCTION AND PROCEDURAL BACKGROUND

On December 16, 2021, the undersigned impartial hearing officer was assigned to this matter pursuant to appointment by the New York City Department of Education (hereinafter also referred to as the “DOE” or the “District”) under the Individuals with Disabilities in Education Act (hereinafter also referred to as “IDEA”), 20 United States Code §1415(f)(1) and Section 504 of the Rehabilitation Act of 1973 to officiate over a due process hearing requested by the Parent by way of a due process complaint (hereinafter also referred to as a “DPC”) filed against the DOE on July 1, 2021.

The DPC alleged a denial by the DOE of free and appropriate public education (hereinafter also referred to as “FAPE”), to the Student. In also alleged that unilateral placement made by the Parent was appropriate and that the Parent gave the DOE the appropriate written notice of their intent to unilaterally place the Student in the current educational setting.

The Parent essentially seeks funding or reimbursement for tuition at said educational setting for the academic year of 2021-2022 as well as transportation. The Parent additionally requests independent evaluations in the area of neuropsychology, occupational therapy, speech and language and a functional behavior analysis.

On January 24, 2022 a pre-trial conference was held. A status conference was scheduled on February 14, 2022. The District failed to appear on June 14, 2022 and the Parent’s counsel appeared with two witnesses. Evidence was entered and Parent’s counsel made an opening statement. Parent’s counsel stated that the District had been contacted with respect to possible

Hearing Officer’s Finding of Fact, Decision and Order

__________________________________________ settlement and that no response had been forthcoming. A hearing went forward. A decision was made for the parent on default of the DOE.

The District counsel emailed the IHO and opposing counsel the afternoon of June 14, 2022 to say that District counsel had been unavailable and had insufficient notice to find coverage. As the matter had also been scheduled for a hearing on June 15, 2022, the undersigned took arguments from the District and put the matter over to June 23 for the DOE to determine their position and for a decision as to whether the IHO would open evidence.

On June 23, the IHO decided, against the objection of the Parent, that the DOE sufficiently argued that there was a legal excuse for the default and a meritorious defense. Evidence was opened and the District, who was arguing in defense of its alleged denial of a free and appropriate public education (“FAPE”), presented evidence and made a closing statement. The DOE declined to cross examine witnesses but made a closing statement. The Parties were given the opportunity to send caselaw to support their positions. Counsel for the Parent sent caselaw in support. The DOE did not respond to this opportunity.

Extensions were requested and granted.

ISSUES PRESENTED

• • Did the DOE meet its burden to show that it provided a free and appropriate public education (“FAPE”) for the school year 2021-2022?
• • Did the Parent meet the burden of showing that the unilateral placement was appropriate?
• • With which party does the equity lie, with respect to a decision to reimburse the Parent for tuition for the 2021-2022 school year?

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DISTRICT’S CASE PRESENTED The DOE does not concede that there was a FAPE denial. To defend this position, the DOE offered arguments that the IEP was reasonably calculated to enable the child to obtain meaningful educational benefits in light of the Student’s circumstances. This, the DOE argues is illustrated by its position that the CSE held a timely annual IEP which was duly constituted. Present were two representatives from the REDACTED, a special education teacher, a parent and a District representative. The DOE does recognize that there is a misspelling in the name of the REDACTED representative, REDACTED and a teacher, going by the first name of “REDACTED” does not have her name properly reflected in the meeting minutes. The DOE posits that these discrepancies do not render the IEP uncredible.

The DOE further posits that the prior written notice and school location letter were sent timely in advance of the start of the 12-month school year and that in addition to its own evidence, the due process complaint acknowledges receipt on June 20, 2021 which is prior to the start of the school year.

The DOE takes the position that it the IEP team developed a plan that was substantively and reasonably calculated to allow the student to receive educational benefit because the CSE team considered the Student’s present levels of performance and that these considerations were sufficient to make the recommendation that the Student attend a District 75 public school in an 8-1-1 ratio of students to teacher to teacher’s assistant. The Student’s current school has an 2-1-1 ratio. The DOE points out that a paraprofessional was an additional recommended resource for

__________________________________________ the Student in the District 75 school.^[1] The related services, the DOE posits, mirror those offered at the Student’s current, private placement.

The DOE points out that it is the Parent’s burden to show the appropriateness of the Student’s program. As to the requested triennial evaluations, the DOE points to its evidence which the agency believes prove that it referred the parent to evaluators in May and June of 2022.

District’s evidence D-1 through 6 and D-11 come into the record, along with D-12. D-12, is a SESIS record that consists of records dated after the filing of the complaint. It is allowed into the record for the limited purpose of determining whether any of the requested independent evaluations have been recently conducted. The Parent, the DOE argues may not ask for an independent evaluation because the only way for the Parent to legitimately make this request is if the District first conducts the evaluation and the Parent disagrees with it. Since the Parent does not request publicly funded independent evaluations in the due process complaint, the DOE takes the position that the IHO is barred from granting them as an allegation that the evaluations are outdated may not trigger an order for an independent evaluation.

PARENT’S CASE PRESENTED The due process complaint describes a Student who has been diagnosed with autism spectrum disorder (“ASD”), accompanied with REDACTED (requiring substantial support). Additional diagnoses are attention deficit/hyperactivity disorder (“ADHD”), combined presentation, specific learning disorder with impairment in mathematics,

__________________________________________ development\al coordination disorder and generalized anxiety disorder. The Student was classified with speech or language impairment and emotional disturbance before he was finally classified a Student with autism, three years later.

The Parent points out that in the IEP, dated April 14, 2021, the Committee on Special Education, (“CSE”) acknowledges the Student’s deficits in the area of sensory processing and emotional regulation, (Ex. P-B). Additionally, the Parent points out that the Student utilizes evidence-based teacher methodology of DIR Floortime, a program by the name of “Theory of Mind for Social Thinking” and “Thinking Goes to School” at the Student’s current placement. All of these programs are designed to assist the Student in regulating behavior and improving fine motor skills, (Ex. P-B). Despite this evidence, the Parent points out, the DOE recommended no evidence-based or peer-reviewed methodology. The Parent opposed the recommendations in the IEP, which the Parent believed falls short of offering this much-needed methodology and did had no recent evaluations to use in preparing an appropriate program.

The Parent points out that June 20 was past the June 15, 2021 deadline to offer this 12-month Student a new school location. That is a denial of FAPE.

The Parent offered testimony that the DOE failed to contact her with a placement for the student, (Ex. Z) in ample time to explore the recommended placement. The ten-day notice to the Department was delivered to them on June 16, 2021.

Finding of Fact, Conclusions of Law, Decision and Order

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Despite the untimely school location letter, the Parent emailed the school Principal of the recommended placement to try and find out more information and arrange for a tour. The Parent did not receive a response from any school personnel.

Additional testimony by the Parent related that in the District 75 school that the Student had attended previously, the Student had a difficult time relating to peers and regulating his behavior and the DOE was remiss in failing to offer any social skills training for this Student. By contrast, the Student has made much progress at the current placement and can now, much more easily interact with peers, read chapter books, and more easily discuss his emotions without becoming aggressive or frustrated, (Ex. Z).

The DOE further denied FAPE, the Parent continues, by failing to evaluate the Student within three years of the prior evaluations as they are required to do under New York State Regulations, Part 200.4(b)(4)(6). The last evaluations were in 2018 and were independent evaluations by an expert engaged by the Parent. The Parent points out that the SESIS records do not speak about evaluations that the DOE had planned to conduct but evaluations that were to be contracted out.

The Parent does not agree that the only event that can trigger the Parent’s request for an independent evaluation is a disagreement with one already conducted by the DOE. Disagreeing with the DOE’s failure to conduct evaluations in a timely manner, or at all, can also trigger a request for IEE’s.

Finding of Fact, Conclusions of Law, Decision and Order

________________________________________________ The Parent asserts that the DOE was notified that the Student requires transportation services that reduce each one-way ride to less than one hour. There was no satisfaction to this request.

As to the appropriateness of the current program, the Parent believes it has met its burden. The current placement is experienced in providing instruction to students who have needs and diagnoses similar to this Student, (Ex. P-K). The Parent’s witness, REDACTED, offered testimony that the Student has significant sensory processing needs and that the current school has a dedicated sensory gym as well as a classroom sensory zone, (Ex. P-Y). REDACTED gave extensive additional information about the qualifications of the professional personnel within the school, the methodologies used to educate the students, the professional-to-student ratio, the many services offered by the school, etc. The entirety of this testimony tends to show an appropriate setting for this Student, the Parent argues.

FINDINGS OF FACT, CONCLUSIONS OF LAW AND DISCUSSION

I find that the Student was an REDACTED-year-old at the time the petition was filed, with a diagnosis of autism spectrum disorder (“ASD”), accompanied with REDACTED (requiring substantial support), attention deficit/hyperactivity disorder (“ADHD”), combined presentation, specific learning disorder with impairment in mathematics, developmental coordination disorder and generalized anxiety disorder.

I find that the current school is appropriate, and that the equities lie with the parent. The Parent is entitled to funding or reimbursement of tuition and independent evaluations by a provider of the Parent’s choosing at a fair market rate in addition to funding or reimbursement of transportation. I find that the transportation should be routed so that the Student is not traveling for as long as an hour each way. I find the testimony credible, that the Student was late to school often due to this bus route but I also find that the Student has behavior challenges and that a very long trip can add to the Student’s anxiety and frustration level, making it more difficult to access learning.

Finding of Fact, Conclusions of Law, Decision and Order

________________________________________________ The affidavits of the Parent’s witness came into the record unopposed, and the DOE declined cross-examination. There is no reason to find the testimony anything but credible.

This testimony leads me to find that a FAPE was denied the Student, that the current placement at the REDACTED School is entirely appropriate for this Student and that the recommended program of the April 14, 2021 IEP is inadequate for this Student’s needs at this time. A new IEP meeting must be held as soon as the results of independent evaluations can be produced and those results be considered.

I find that there are no valid arguments made by the DOE against the balance of the equities leaning toward the Parent.

Free and appropriate public education (“FAPE”):

The IDEA was legislated in order to “ensure that all children with disabilities have available to them, a free appropriate public education that emphasizes special education and related services designed to meet their unique needs,” Board of Education of Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 188 (1982).

The hallmark of a FAPE is educational instruction that is designed to “meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child to benefit from the instruction,” id.

I find that the DOE did deprive this Student of a FAPE in more than one way. First, the DOE did not provide a school location letter in time. The DOE’s own Standard Operating Procedures Manual requires a school location letter to be provided to the Parent by June 15 for students in 12-month programs. The Parent has the right to participate fully in the process of locating a placement for the Student. Waiting until June 20 for a school year that begins on July 1 was unreasonable. The IEP itself, recites on April 14, 2021 that the Parent disagreed with the District’s recommendation that the Student needed a less restrictive placement than the REDACTED. The District was therefor on notice that a school location letter would need to be issued and that the Parent would want to closely scrutinize the recommended location.

Finding of Fact, Conclusions of Law, Decision and Order

________________________________________________ The fact that a student with significant needs has had to wait for almost four years for evaluations is another FAPE denial. As a result of this delinquency, I find that the IEP is inadequate.

The CSE conducted an evaluation on April 14, 2021 with no more than its own interpretation of the Student’s Present Levels of Performance and Individual Needs. The information used contained recitations of the Student’s progress as determined by the professionals educating the Student. The interpretation of this information was interpreted in a void, however, without the assistance of updated evaluations in all areas of suspected disabilities.

It is the responsibility of the DOE to provide the Student with the services and/or placement that will bring him or her up to a level of learning that is not only sufficient to confer some educational benefit upon the ‘handicapped’ child, Rowley, supra, but emphasizes special education and related services designed to meet the Student’s unique needs and prepare him for further education, employment and independent living as well as ensure that the rights of students with disabilities and parents of such students are protected, (20 U.S.C. § 1400[d][1][A]-[B]; see generally, Forest Grove v. T.A., 129 S.Ct. 2484, 2491 [2009]; Rowley, at 206-07.

A district may be found liable for a denial of FAPE when it places a student with a disability in a school or program that cannot provide the services and supports he needs to receive FAPE, D.L.v. St. Louis City Sch. Dist., 76 IDELR 31 (8th Cir. 2020).

I agree that the CSE of April 14, 2021 includes many related services along with a paraprofessional and a behavior management/support plan. The latter is not explained to the extent that the other related services are, but it is clear that the IEP is in fact, devoid of any evidence-based programs, even Applied Behavioral Analysis, (“ABA”). The current placement, by contrast, employs several such programs, which is almost certainly a contributing factor in the progress that the Student has made since his enrollment. The Student appears to have fared much better in the current placement than in the District 75 setting that he has experienced previously.

Finding of Fact, Conclusions of Law, Decision and Order

________________________________________________ The DOE may not be familiar with or capable of offering such programs as DIR Floortime, applied behavioral analysis or other such methodologies in the public schools, but that does not relieve the agency of responsibility to provide such services to the Student, where it has been shown that these are the methods that make it possible for the Student to access an education.

A court or a hearing officer may order a district to reimburse the parents of a student with a disability for the student’s unilateral private placement if the district failed to make a FAPE available in a timely manner and the unilateral private placement is appropriate, 34 CFR 300, 148 (c); Florence County Sch. Dist. Four v. Carter, 20 IDELR 532 (US 1993).

In the instant matter, there is ample evidence to failing to provide an IEP sufficiently supported by evidence, failing to timely evaluate the Student that the District and failing to provide a school location letter in a timely fashion. The Parent must be reimbursed for any out-of-pocket expenses and the REDACTED funded for any tuition and fees not already paid.

Appropriateness of the Placement:

A school district has the burden of proof, including the burden of persuasion and the burden of production in IDEA due process hearings, except that a parent or person in a parental relationship, seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and the burden of production with respect to the appropriateness of such a placement, In re: Student with a Disability, NYS Educational Agency, 14-022, (3/31/14); In re: Student with a Disability, NYS Educational Agency, 175353, (12/14/18); NYS Educ. Law § 4404(1)(c).

An appropriate educational program begins with an IEP that includes a statement of the student’s present levels of academic achievement and functional performance, In re: Student with a Disability, NYS Educational Agency, 12-033 (4/25/12).

The instant matter did have such a statement within the IEP and little else. There were no evaluations cited and indeed, no recent evaluations were in existence. There is no reason, therefor, to believe that the program

Finding of Fact, Conclusions of Law, Decision and Order

________________________________________________ recommended in the IEP is more appropriate than thE current program. There is ample testimony that the Student should not be moved from the REDACTED.

The IEP noted that the Parent felt that moving the Student from the REDACTED, the current placement, would result in the loss of progress gained by the Student since enrollment. I disagree that there is any evidence of this.

The REDACTED, which offers a 2:1 ratio with sensory supports agreed with the Parent that the Student should not be moved. The District rejected a 12:1 +1 ratio as not providing enough support and believed a 6:1+1 ratio was too restrictive.

The testimony of Parent’s witness, REDACTED, Program Director of the REDACTED, revealed that the school specializes in students with neurodevelopmental delays in relating and communicating. Included in this group are children with autism spectrum diagnoses and other students with a deficit in relating and communicating. The ratio is 2:1+1 with classrooms of typically eight students, one head teacher, and three assistant teachers. The school contains two sensory gyms, fully equipped. A sensory corner is included in each classroom. There is a regulation middle school sized gym, a student lounge a playground, an art room and music therapy rooms. There are therapists on staff and school nurses.

The Student has access to speech/language therapy, counseling, occupational therapy, physical therapy, music therapy. All but the music therapy is recommended by the Student’s IEP. The Parent training piece appears to be provided and is described as weekly communication with the school social worker, team meetings at the request of the parent, support groups, parent education groups, family counseling, individual counseling, sibling counseling, sibling support groups and a parent Developmental Individual-Difference Relationhip-based

Finding of Fact, Conclusions of Law, Decision and Order

________________________________________________ methodology training program, among other parent support opportunities. Although there is no testimony as to the nature of the parent training available in the IEP related services, it is not difficult to surmise that this service at the REDACTED School would exceed that offered by the IEP.

The witness attests to the Student’s increased ability to co-regulate more quickly, increasingly use more complex sentences to express needs as well as ideas. The Student’s gross motor ability has increased along with postural control and bilateral coordination.

The IDEA authorizes a hearing officer to make a reimbursement order if the unilateral placement was ultimately determined to be more proper than the IEP, Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S. 359, (4/29/85), Florence County Sch. Dist. Four v. Carter, 510.S. 7, (11/9/93).

A unilateral private placement is appropriate for reimbursement purposes if it offers instruction that is specially designed to meet the student’s unique needs as well as the support services the student requires to benefit from that instruction, id, (see also, M.N. v. State of Hawaii, Dep’t of Educ., 60 IELR 181 (9th ir. 2013, unpublished); Ward v. Board of Education of the Enlarged City Sch. Dist. Of Middletown, NY, 63 IDELR 121 (2d Cir. 2014, unpublished).

The current placement offers weekly classroom observation related to the Student’s individual goals. December and June progress reports are produced by teachers and related service providers. The Student is offered a reading program that utilizes a multi-sensory, movement-based and thinking-based approach to exploring text. The DIRFloortime sessions in reading, math, community studies and sensory activities focuses on his individual needs and progress.

The full array of services provided at the current placement has been detailed herein as containing all of the recommended services and more.

Finding of Fact, Conclusions of Law, Decision and Order

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Equity:

The balancing of equities is the final consideration in determining whether the cost of reimbursement should be borne by the District for a unilateral placement, J.T. v. Dep’t of Educ., State of Hawaii, 72 IDELR 95 (D. Haw. 2018). The factors that must be considered consist of:

• • Whether the parents failed to provide the school district with timely notice of their rejection of the proposed public placement, including their concerns and intent to enroll the student in a private school at public expense. This notice is timely if it is made either at the most recent IEP team meeting or at least l0 business days prior to removal of the
• • student from the public school, 20 U.S.C. § 1412(a)(10)(C)(iii)(I); 34 C.F.R. § 300.148 (d)(3).
• • Whether prior to the student’s removal, the school district informed the parents of its intent to evaluate the student, but the parents did not make the student available for the evaluation, 20 U.S.C. § 1412(a)(10)(C)(iii)(II); 34 C.F.R. § 300.148 (d)(1).
• • Whether the parents actions were unreasonable, 20 U.S.C. § 1412(a)(10)(C)(iii)(III); 34 C.F.R. § 300.148 (d)(3).
• • Whether the cost of the private placement is unreasonable, Carter, supra.
• • Whether there was a lack of parental cooperation with the school district, ^[2] Finding of Fact, Conclusions of Law, Decision and Order Case No.: 209678 ________________________________________________ The Parent in this instance, gave the District the requisite ten-day notice of the Parent’s intention to remove the Student from the public school setting and unilaterally place the Student in a private setting.

The Parent credibly testifies that despite the fact that the District was late in contacting her with a school location letter, she did make several attempts to visit the school to determine whether she believed the Student could be properly educated in that setting.

The DOE appears to be taking the stance that the Parent did not cooperate in this process or with the DOE’s attempts in May and June of 2022 to conduct evaluations of the Student. I do not agree. There were no timely evaluations conducted by the District prior to the filing of the petition. The District itself does not offer any evidence that it attempted to resolve this issue prior to a month before the end of the 2021-2022 school year. This is unreasonable.

Independent Educational Evaluations:

The Parent is entitled to independent evaluations in all suspected areas of disability. The last evaluations are stale, not having been updated in over three years as is the DOE’s responsibility. The agency’s offer to conduct evaluations in May or June of 2022 does not render the Parent’s due process request for an IEE moot or in any way irrelevant.

The DOE asserts that the Parent may only request an IEE upon the disagreement with one having been first conducted by the DOE. While an IHO’s authority to direct an evaluation is not unlimited, Application of a Child with a Disability, Appeal No. 04-012; Application of a Child with a Disability, Appeal No. 96-13. It must also be considered that IHO’s are “granted broad authority in their handling of the hearing process and to determine the type of relief which is appropriate considering the equitable factors present and those which will effectuate the purposes

Finding of Fact, Conclusions of Law, Decision and Order

________________________________________________ underlying IDEA,” Warren Consolidated Schs., 106 LRP 70659[LEA MI 200]. In this instance, the District has for almost four years, failed to provide necessary evaluations. This situation has created a feeling of mistrust between the Parent and the District. When the level of mistrust between the parties is high enough, the wiser course is to direct that evaluations be conducted by independent persons not affiliated with the district, Application of a Child with a Disability, Appeal No. 12-033, citing (K.I. v. Montgomery County Bd. Of Educ., 109 LRP 75160 [SEA AL 2009]).

There is no question that the evaluations must be provided and had not been. Although this is the end of the school year in question and there is enough information to determine that there was a FAPE denial, triggering funding or reimbursement of tuition of a unilateral placement, I do not find that the necessity for evaluations have been rendered moot.

A district must rely on technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors, Application of a Child with a Disability, Appeal No. 12-033, citing, (20 USD § 1414 [b][2][C]; 34 CFR 300.304 [b][6][ix]; 8NYCRR [4][b][6][x]). An evaluation of a student must be sufficiently comprehensive to identify all of the student’s special education and related services needs, whether or not commonly linked to the disability category in which the student has been classified, id, citing (34 CFR 300.304 [c][6]; 8NYCRR [4][b][6][ix]).

The Parent is still entitled to information about the Student’s progress or current needs in order to make informed choices and fully participate in educational decision-making for the Student. The District will need the information to make informed recommendations.

One of the primary evaluations needed is a neuropsychological which must be contracted out of the District. A psychological/social examination is not one that contains sufficient information to determine how best to approach this Student’s complex needs. The related services must also be updated and the length of time taken by

Finding of Fact, Conclusions of Law, Decision and Order

________________________________________________ the District to collect these evaluations is best remedied by an order for IEE’s which is more likely at this point in time to

Transportation:

I additionally find that the Student is entitled to appropriate transportation to and from the placement which takes into account the diagnoses and needs. The Parent credibly testified that the Student was late to school often due to the length of the drive. A Student who is as distractible and vulnerable as this child is, should not be subjected, in my view, to a ride of this length, even for the drive home. The transportation must provide the Student with a route which brings the Student to the destination in under an hour.

ORDER:

Based on the Findings of Fact and Conclusions of Law and all evidence before the IHO, it is hereby ordered that:

• • The DOE is found to have denied the Student a FAPE in the 2021-2022 school year by its failure to evaluate the Student, offer a timely school location letter or create an IEP which was based on proper evaluations.
• • The REDACTED is deemed an appropriate placement and the equities lean toward the Parent in the decision made herein.
• • The DOE must fund or reimburse the Parent for the full amount of tuition for the REDACTED for the 2021-2022 school year upon submission of a receipt of the amount paid by the Parent or an unpaid tuition bill by the school.
• • The DOE shall also fund and/or reimburse the Parent for the Student’s transportation costs at the rate equivalent to that of a school bus ride between the student’s home and the REDACTED for the 2021-2022 school year.
• • The transportation shall include a transportation paraprofessional and utilize a bus route which does not ordinarily cause the Student to travel an hour or more each way.

Finding of Fact, Conclusions of Law, Decision and Order

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• • The DOE must fund independent educational evaluations (IEE’s) in the areas of neuropsychology, occupational therapy, physical therapy, speech and language therapy and a functional behavior analysis, all at market rate.
• • The DOE must immediately upon receipt, enter this order on a system that is used to keep track of such orders.

SO ORDERED:

Dated: July 11, 2022

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Barbara J. Caravello, Impartial Hearing Officer Finding of Fact, Conclusions of Law, Decision and Order

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APPEAL RIGHTS

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.

Footnotes

[1] The recommended paraprofessional is offered daily, full-time as a group service, IEP p. 19.

[2] Neither Burlington, Carter nor the IDEA mentions this equitable consideration, but other courts have weighed parental cooperation in deciding whether to award reimbursement, See e.g., Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656 (S.D.N.Y. 2005), Glendale Unified Sch. Dist. v. Almasi, 122 F. Supp. 2d 1093, (C.D. Cal. 2000), 20 U.S.C. §1412(a)(10)(C).