NY IHO #210883: New York City... | Special Education Law

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CASE NUMBER: 554782 - NYC: 210883

FINDINGS OF FACT & DECISION

Case No.: 210883

Student’s Name: [REDACTED]

(hereinafter referred to as “Student”)

Date of Birth: [REDACTED]

District: [REDACTED]

(“District”)

Hearing Request by: [REDACTED]

(“Parent”)

Hearing Date(s): 10/5/21, 11/3/21, 11/4/21, 12/1/21, 12/15/21, 2/9/22, 3/22/22

Record Close Date: 5/20/2022

Hearing Officer: Sebastian Weiss

NAMES AND TITLES OF PERSONS WHO APPEARED:

For the Student:

[REDACTED], Esq.

(“Parent Counsel”)

[REDACTED], Mother

[REDACTED], Director of Special Education, [REDACTED] (“Unilateral Placement Director”)

For the Department of Education:

[REDACTED], Esq.,

[REDACTED], Esq.

(“District Counsel”)

[REDACTED], Assistant Principal, [REDACTED] (“District Placement Assistant Principal”)

[REDACTED], School Psychologist, [REDACTED] (“School Psychologist”)

BACKGROUND AND PROCEDURAL HISTORY

On July 8, 2021, the Parents filed a Due Process Complaint (“DPC”) pursuant to the Individuals with Disabilities Education Act (“IDEA”) and New York State Education Law. The DPC seeks tuition reimbursement for the Student’s unilateral placement at the [REDACTED] (“Unilateral Placement”) for the extended 2021-22 school year (“School Year”), among other items of relief as discussed below. (Ex. A).^[1] The DPC also sets forth a pendency claim.

The undersigned Hearing Officer was appointed to the above matter on July 15, 2021. A prehearing conference was conducted on September 20, 2021. The hearing on the merits was commenced on October 5, 2021. On October 12, 2021, a Pendency Order was issued by the undersigned hearing officer. The hearing on the merits was continued on November 3, November 4, December 1, and December 15 2021, and on February 9 and March 22, 2022.

ISSUES AND ARGUMENTS

PARENT CASE:

The DPC alleges, among other items, that the District denied the Student a Free Appropriate Public Education (“FAPE”) as required by the IDEA for the School Year by failing to appropriately address the Student’s management needs, to mandate appropriate related services, to recommend appropriate goals, and to recommend an appropriate school location. (Ex. A)

The DPC seeks the following relief: An order declaring that the District denied the Student a FAPE during the School Year; a determination that the Unilateral Placement is an appropriate placement for the Student; an order directing the District to fund payment directly to the Unilateral Placement for the cost of tuition for the School Year; an order directing the District to provide assistive technology devices, AAC and related supports; funding for special education transportation with limited time travel and a transportation paraprofessional, nurse or porter services as required; and a new Individualized Education Program (“IEP”) meeting to address changes, if necessary. (Id)

The Parent’s case included the following arguments:

The recommendation for a group paraprofessional as opposed to an individual on the Student’s IEP is a denial of FAPE. (Dec. 1 T 215) This omission would subject the Student to physical danger without the constant monitoring and support that a one to one paraprofessional provides. (Id 216)

The District failed to recommend a placement where the Student would be educated alongside peers with similar needs and abilities, as mandated by case law and statutory law. (Id 219)

The District was on notice of the Student’s vision needs because the identical issue was raised in the previous year's case. (Id 216)

The Student is legally blind and the District failed to conduct a vision evaluation or recommend vision education services. (Id 218) The District also failed to recommend music therapy. (Id)

There is no evidence that the District offered to provide special transportation to the Student during the School Year and accordingly the Student is entitled to funding for special transportation to and from the Unilateral Placement. (P CB 25-6)

The Parent presented thirteen (13) alphabetically listed documents into evidence, as well as the testimony of the Unilateral Placement Director and the Student’s Mother.

During the hearing, District Counsel cross-examined the Unilateral Placement Director regarding discrepancies relating to Unilateral Placement IEPs, including duplicative items and incorrect dates.

Parent Counsel subsequently sought to introduce a replacement document on the basis that the discrepancies were due to clerical error. (Dec. 15 T 292; IHO Ex. A)

District Counsel objected to the admission into evidence of a replacement document on the basis that it was not untimely and unreliable, among other reasons (Dec. 15 T 293; IHO Ex. A)

Parent Counsel argued that the replacement document was previously submitted into evidence for purposes of FOFD #196218, which was also adjudicated by the undersigned impartial hearing officer. (IHO Ex. A; Ex. JE-1). Case #196218 was filed by the Parent for the prior school year for the same Student, Unilateral Placement, and with the testimony of the same witness.

The District’s objection is overruled. The replacement document is being submitted on the basis of clerical error, which is the same reasoning relied upon by the District to explain the discrepancy in the 2021 District IEP regarding the group paraprofessional services recommendation.

DISTRICT CASE:

The primary arguments presented by the District can be summarized as follows: (D CB)

• The Student was offered a FAPE for the School Year and the District complied with procedural and substantive requirements.
• The IEP developed by the Committee on Special Education (“CSE”) was reasonably calculated to meet the Student's unique individual needs.
• The District addressed the Student’s management needs and mandated appropriate related Services.
• The District Placement was appropriate and could accommodate a one to one paraprofessional.
• The Parents did not provide sufficient evidence to meet their burden of proof regarding the appropriateness of the Unilateral Placement. The burden of proof includes demonstrating that the Student can and has made progress. (Feb. 9 T 346-7)
• The Unilateral Placement is a generalized curriculum for all students with [REDACTED] disorders or [REDACTED] injuries, is not specially designed for the Student and is too restrictive for the Student.
• The IEP developed by the Unilateral Placement was not tailored to the Student’s individual needs.
• The content of the Parent’s Ten Day Notice was insufficient.

The District presented eighteen (18) numerically listed documents into evidence, and the testimony of two (2) witnesses – the School Psychologist and the District Placement Assistant Principal.

SUMMARY OF APPLICABLE LAW

The IDEA is a comprehensive statutory framework established by the United States Congress to ensure that students with disabilities are afforded a FAPE. 20 U.S.C. §1400(d)(1)(A); see Schaffer v. Weast, 126 S. Ct. 528 (2005); Bd. of Educ. v. Rowley, 458 U.S.176 (1982); Frank G. v. Bd. of Educ., 459 F.3d 356 (2d Cir. 2006). A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP, which is reasonably calculated to enable the student to receive educational benefit. See Rowley; 20 U.S.C. § 1401(9)(D); 34 C.F.R. § 300.17; see 20 U.S.C. § 1414(d); 34 C.F.R. § 300.22. The student’s recommended program must also be provided in the least restrictive environment. 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. § 300.114(a)(2); 8 NYCRR 200.6(a)(1).

In Endrew F. v. Douglas County School District, 580 U.S. 999, 14 (2017), the Court held that, “[t]o meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances, as a focus on the particular child is at the core of the IDEA. The instruction offered must be “specially designed” to meet a child’s “unique needs” through an “individualized education program.” §§1401(29), (14) (emphasis added), to reflect the fact that a contemplated IEP must be focused on the “particular child that is at the core of the IDEA.”

Pursuant to New York Education Law §4404(1)(c), the board of education shall have the burden of proof, the burden of persuasion, and the burden of production in impartial hearings except for instances where the parent is seeking tuition reimbursement for a unilateral parental placement and in those cases the parent shall have the burden of persuasion and the burden of production as to the appropriateness of the placement. The burden of proof in matters such as this shall only be met upon a fair preponderance of the evidence. The preponderance of the evidence standard requires the trier of fact to find that the existence of a fact is more probable than its nonexistence. Concrete Pipe & Products of California, Inc. v. Construction Laborers Pension Trust for Southern California, 508 U.S. 602, 622 (1993). In other words, preponderance of the evidence is evidence that is more convincing than the evidence offered in opposition to it. Greenwich Collieries v. Director, Office of Workers’ Compensation Programs, 990 F. 2d 730, 736 (3rd. Cir. 1993), aff’d, 512 U.S. 246 (1994).

The decision in this case rests on a determination of the three-pronged test set forth by the United States Supreme Court, which provided that a board of education may be required to pay for educational services obtained for a child by the child’s parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim. School Committee of the Town of Burlington v. Dept. of Educ., Massachusetts, 471 U.S. 359 (1985); Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993).

Under the second prong of the Burlington/Carter test, the parents bear the burden of proving the appropriateness of the unilateral placement. See M.S. v. Board of Education of the City of Yonkers, 231 F.3d 96, 104 (2d Cir. 2000); Application of a Child with a Disability, Appeal No. 99-51; Application of a Child with a Disability, Appeal No. 94-29; Application of a Child with a Disability, Appeal No. 95-57. In order to meet that burden, the parents must show that unilateral placement offered an educational program designed to meet the Student’s special education needs. School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); Application of a Child with a Disability, Appeal No. 99-51; Application of a Child with a Disability, Appeal No. 98-76; Application of a Child with a Disability, Appeal No. 94-29. A unilateral placement is only appropriate if it provides education instruction specifically designed to meet the unique needs of a handicapped child. Gagliardo v. Arlington Central School District, 489 F.3d 105 (2d Cir. 2007).

With respect to residential placements, the Second Circuit has stated that "[w]hile some children's disabilities may indeed be so acute as to require that they be educated in residential facilities, it is appropriate to proceed cautiously whenever considering such highly restrictive placements.... The norm in American public education is for children to be educated in day programs while they reside at home and receive the support of their families" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119 at 132). A residential placement is not appropriate unless it is required for a student to benefit from his or her educational program (M.H. v. Monroe-Woodbury Cent. Sch. Dist., 296 Fed. App'x 126, 128 [2d Cir. Oct. 7, 2008]; Walczak, 142 F.3d at 122; Mrs. B., 103 F.3d at 1121-22; see Educ. Law § 4402[2][b][2]; 34 CFR 300.104; 8 NYCRR 200.6[j][1][iii][d]). In general, the Second Circuit has required objective evidence that a student cannot obtain educational benefit in a less restrictive setting before finding that a residential placement is required by the IDEA (M.H., 296 Fed. App'x at 128; Walczak, 142 F.3d at 131-32; see MN v. Katonah Lewisboro Sch. Dist., 2020 WL 7496435, at *9 [S.D.N.Y. Dec. 21, 2020]). Additionally, State law requires that in order to properly recommend a residential placement, a district must make the determination that there is no appropriate non-residential school available consistent with the needs of the student (Educ. Law § 4402[2][b][2]).

Regarding the placement of students with disabilities, N.Y. Comp. Codes R. & Regs. tit. 8 § 200.6(a)(3) states: “Students with disabilities placed together for purposes of special education shall be grouped by similarity of individual needs as defined in section 200.1(ww) of this Part, in accordance with the following: (i) The range of academic or educational achievement of such students shall be limited to assure that instruction provides each student appropriate opportunities to achieve his or her annual goals. The learning characteristics of students in the group shall be sufficiently similar to assure that this range of academic or educational achievement is at least maintained. (ii) The social development of each student shall be considered prior to placement in any instructional group to assure that the social interaction within the group is beneficial to each student, contributes to each student's social growth and maturity, and does not consistently interfere with the instruction being provided. The social needs of a student shall not be the sole determinant of such placement. (iii) The levels of physical development of such students may vary, provided that each student is provided appropriate opportunities to benefit from such instruction. Physical needs shall be considered prior to determining placement to assure access to appropriate programs. The physical needs of the student shall not be the sole basis for determining placement. (iv) The management needs of such students may vary, provided that environmental modifications, adaptations, or, human or material resources required to meet the needs of any one student in the group are provided and do not consistently detract from the opportunities of other students in the group to benefit from instruction.”

Regarding least restrictive environment, N.Y. Comp. Codes R. & Regs. tit. 8 § 200.1(cc) states that “Least restrictive environment means that placement of students with disabilities in special classes, separate schools or other removal from the regular educational environment occurs only when the nature or severity of the disability is such that even with the use of supplementary aids and services, education cannot be satisfactorily achieved. The placement of an individual student with a disability in the least restrictive environment shall: (1) provide the special education needed by the student; (2) provide for education of the student to the maximum extent appropriate to the needs of the student with other students who do not have disabilities; and (3) be as close as possible to the student's home.”

FINDINGS OF FACT

At the beginning of the School Year, the Student was a [REDACTED] old boy with [REDACTED]. The Student has been diagnosed with the following: [REDACTED]. (Ex. 5-1, 7-4)

The Student has chronic medical conditions, including [REDACTED] and severe developmental delays. (March 22 T 410) He has a [REDACTED] for [REDACTED] purposes, and a [REDACTED] for [REDACTED] purposes. (Id) He requires 24/7 nursing at home and at school due to his medical needs (Id). Due to REDACTED. (Id 411)

The Student has significant impairments in cognition; language; memory; attention; reasoning; abstract thinking; judgment; problem-solving; sensory, perceptual, and motor abilities; psycho-social behavior; physical functions; information processing; and speech. (Ex. 7-15, 9-3)

The Student communicates most successfully using a total communication approach, including: vocalizations, facial expressions, body language, gestures, and low technology and high-technology augmentative and alternative communication devices, such as an iPad, to enhance and participate in his academic day. (Ex. 7-4)

The Student is easily distracted by external stimuli and can get upset. (Ex. 7-7,12) When agitated, the Student may pull on his [REDACTED]. (Feb. 9 T 368)

The Student is described as happy, social, friendly and enthusiastic. (Ex. 7-10; Ex. JE2; Ex. 16; March 22 T 409). The Student is nonverbal and non-ambulatory, though he is able to walk short distances with hand-held assistance (Ex. 5-1, 7-1). The Student is legally blind due to Cortical Visual Impairment. (Id) The Student receives nutrition from [REDACTED]. (Id)

The Student requires the assistance of both a full time 1:1 nurse and health paraprofessional. (Ex. C)

The disability classification indicated on the Student’s IEP is [REDACTED], which was acquired at birth (Ex. 7-1; March 22 T 411)

The Instructional/Functional Levels for reading and math indicated on the IEP is Kindergarten. (Id)

The Student requires a significant degree of individualization of his curriculum. (Id) Due to the aforementioned needs, the Student requires modifications to the general education curriculum in terms of depth, breadth and pacing of materials. (Id)

The Student has been attending the Unilateral Placement since the beginning of the 2019-20 school year. (Ex. A-3). Prior to the 2019-20 school year, the Student attended a different nonpublic school recommended by the District. (Dec. 1 T 214, 221) The Student has never attended a public school. (March 22 T 446)

In April 2020, the Unilateral Placement developed an IEP for the prior 2020-21 school year, recommends the following program for an extended school year (“2020 Unilateral Placement IEP”): (Ex. JE-2)

• 8:1:1 Special Education Classroom in a Non-Public School;
• Occupational Therapy, Individual service, four times per week in 60 minute sessions;
• Physical Therapy, Individual service, five times per week in 60 minute sessions;
• Speech-Language Therapy, Individual, four times per week in 60 minute sessions;
• Speech-Language Therapy, max. size group of 3, one time per week in 60 minute sessions;
• Vision Education Services, Individual, two times per week in 60 minute sessions;
• Hearing Education Services, Individual, three times per week in 60 minute sessions;
• Hearing Education Services, max. size group of 3, one time per week in 60-minute sessions;
• Music Therapy, Individual, three times per week in 60 minute sessions;
• Parent Counseling and Training, individual/group, one time per month in 60 minute sessions;
• 1:1 paraprofessional, individual, daily;
• 1:1 nurse, individual, daily;

On March 16, 2021, the District conducted a Social History Update. (Ex. 5)

On March 17, 2021, the CSE convened for an IEP Meeting (“2021 IEP Meeting”) and developed an IEP for the Student for the School Year (“2021 District IEP”). (Ex. 7)

The 2021 District IEP recommends the following services for an extended school year: (Ex. 7-27, 28)

• 8:1+1 Special Class in a D75 Specialized School;
• Occupational Therapy, Individual service, five times per week in 60 minute sessions;
• Parent Counseling and Training, group, one times per month in 60 minute sessions;
• Physical Therapy, Individual service, five times per week in 60 minute sessions;
• School Nurse Services, Individual service, daily full time 1:1
• Speech-Language Therapy, Individual service, four times per week in 60 minute sessions;
• Speech-Language Therapy, Group of 3, one time per week in 60 minute sessions;
• Paraprofessional Health – Group service, daily full time;
• AT Services, individual, one time per week in 60 minute sessions;
• Speech generating device with software, individual, daily throughout the school day;

Regarding special transportation services, the 2021 District IEP states that the Student needs the following special transportation accommodations/services:

• Transportation from the closest safe curb location to school;
• Adult Supervision – 1:1 Nursing Services
• Vehicle and/or Equipment Needs – Lift Bus
• Vehicle and/or Equipment Needs – Air Conditioning
• Vehicle and/or Equipment Needs – Student uses wheelchair (Regular Size)
• Other Accommodations – Limited Travel Time (Ex. 7-30)

Supports for school personnel on behalf of the student indicated in the 2021 District IEP includes training for vision adaptations and functioning. (Ex. 7-26)

The Student’s instructional/functional levels indicated on the 2021 District IEP for both reading and math is Kindergarten. (Ex. 7-1)

The 2021 District IEP and School Location Letter state that placement at a NYSED-Approved Non Public School was rejected because the Student does not need such intensive specialized instruction to address his educational needs. (Id 7-32)

On March 24, 2021, the District issued a Prior Written Notice (Notice of Recommendation) as well as a School Location Letter for the School Year specifying the following school: [REDACTED]. (Ex. D, 9)

On June 15, 2021, the District issued another Prior Written Notice as well as another School Location Letter for the School Year specifying the following school: [REDACTED] (“District Placement”). (Ex. E, 15)

On June 23, 2021, the Parent Counsel issued a Ten Day Notice to the District regarding the Parent’s intent to enroll the Student at the Unilateral Placement for the School Year. (Ex. F)

On June 29, 2021, the Parent entered into an Enrollment Contract with the Unilateral Placement for the School Year (“Enrollment Contract”). (Ex. G)

On July 1, 2021, the Unilateral Placement developed an IEP for the School Year, which recommends the following program for an extended school year (“2021 Unilateral Placement IEP”): (Ex. H)

• 8:1:1 Special Education Classroom in a Non-Public School;
• Occupational Therapy, Individual service, five times per week in 60 minute sessions;
• Physical Therapy, Individual service, five times per week in 60 minute sessions;
• Speech-Language Therapy, Individual, four times per week in 60 minute sessions;
• Speech-Language Therapy, max. size group of 3, one time per week in 60 minute sessions;
• Vision Education Services, Individual, two times per week in 60 minute sessions;
• Hearing Education Services, Individual, two times per week in 60 minute sessions;
• Hearing Education Services, max. size group of 3, one time per week in 60 minute sessions;
• Music Therapy, Individual, two times per week in 60 minute sessions;
• Music Therapy, group, one time per week in 60 minute sessions;
• Parent Counseling and Training, individual/group, one time per month in 60 minute sessions;
• 1:1 paraprofessional, individual, daily;
• 1:1 nurse, individual, daily;

Both the 2020 and 2021 Unilateral Placement IEP state that an 8:1:1 placement in a NYC DOE specialized public school was considered for the Student and rejected by Parent and the Unilateral Placement because an 8:1:1 program would not provide sufficient support for Student’s highly intensive management needs. (JE-2/C-47, H-47) The Student requires a smaller class ratio to remain focused to ensure all of Student's highly intensive management needs are met throughout the day. (Id) NYC DOE specialized 8:1:1 placements are for students on the Autism spectrum and would not be the appropriate peer group for this Student who suffers from severe impairments across multiple domains due to [REDACTED] or related disorder. (Id) Additionally, the NYC DOE specialized public school program does not offer the extended school day necessary to implement the related services as outlined in this IEP. (Id)

On July 26, 2021, the Parent entered into a School Transportation Service Agreement (“Transportation Contract”) with Sisters Travel & Transportation Services, LLC (“Transportation Company”) for the School Year. (Ex. I)

On November 30, 2021, the District issued a Request for Documents to the Unilateral Placement. (Ex. 17).

On December 10, 2021, the Unilateral Placement issued a response to the District’s Request for Documents. (Ex. 18)

WITNESS TESTIMONY

School Psychologist The District presented the testimony of the School Psychologist at the hearing. The relevant testimony from this witness included the following:

The School Psychologist has been employed by the District for eight years and has an undergraduate degree and master’s degree in psychology from SUNY Geneseo and Plattsburgh, respectively. (Nov. 3 T 67-8) She has a certificate of advanced study in psychology and is licensed in New York State as a school psychologist. (Id) She is the assigned case manager for students attending the Unilateral Placement. (Id 72)

She participated in the 2021 IEP Meeting in her capacity as school psychologist and district representative. (Id 69-70)

The 2021 IEP Meeting was attended by a special education teacher from District 21, the Unilateral Placement Director, Parent Counsel, the Student’s Mother, as well as teachers and related service providers. (Id 70-71)

In preparation for the 2021 IEP Meeting, the CSE reviewed a social history update was prepared by the social worker, the previous IEP, and the quarterly report and the teacher and the related service reports received from the Unilateral Placement. (Id 72)

The documents from the Unilateral Placement were received the day prior to the 2021 IEP Meeting. (Id)

She wanted to conduct a classroom observation but it was not conducted due to difficulties related to the pandemic. (Id 73)

The Student’s academic strengths and weaknesses were discussed at the 2021 IEP Meeting and indicated in the 2021 District IEP. (Id 75-6)

The Student is very engaged and motivated and has relative strengths in language literacy, basic math skills and social skills within the academic setting. (Id 75)

The Student has sensory needs requiring a visual and tactile total communication approach. (Id 76) The Student is easily distracted and requires a paraprofessional to stay engaged (Id)

The Student has management needs, including social emotional management needs. (Id 77-81)

The Student is expressive, happy and social but can get frustrated and has issues with impulse control and grabbing items. (Id 79-80)

Measurable annual goals were developed for the Student based on a discussion of the Student’s present levels of performance, including goals related to academics, speech and language, occupational therapy. (Id 84-87)

There were no objections raised to the goals during the 2021 IEP Meeting, including from the Mother. (Id 88)

There is a clerical error possibly due to a computer glitch in the 2021 District IEP relating to the paraprofessional services. (Id 90-91, 100-101) The 2021 IEP indicated group paraprofessional services, but the intended recommendation was individual paraprofessional services. (Id)

The CSE team agreed the Student needed a one-to-one 3 paraprofessional and it is stated in the management needs and in the IEP minutes that he needed a one-to-one paraprofessional. (Id 101) The 2021 District IEP recommends an 8:1:1 class in a District 75 specialized school. (Id 92) Other programs were considered which were rejected based on being too restrictive or too large. (Id 93-4)

The CSE classified the Student’s disability as [REDACTED]. (Id 94)

AT services individually once a week for 60 minutes were recommended (Id)

School personnel receive annual training in the areas of seizures, vision, and [REDACTED] (Id 95-6)

The Student’s mother did not raise any concerns or objections to the proposed program or classification. (Id 96)

The School Psychologist agreed with the District Counsel’s statement that the program recommendation and related services, as well as the supplementary services and assistive technology recommendation, were appropriate for the Student. (Id 97)

On cross examination, Parent Counsel questioned the School Psychologist regarding the paraprofessional services recommendation, and a conductive education report discussed in the 2021 District IEP. (Id 104-7)

Conductive education is an intensive, comprehensive method of learning for individuals with 13 neurological movement disorders. (Id 105)

Conductive educations goals were not included in the 2021 District IEP because these goals are met through physical therapy goals. (Id 107)

Parent Counsel also cross examined the School Psychologist regarding why vision services were not included on the 2021 District IEP even though the Student was receiving vision therapy services at the Unilateral Placement. (Id 113)

The School Psychologist responded that the District was not aware of the vision services because the parent did not express concerns in connection with the social history update and because it did not receive the documentation from the Unilateral Placement until the day prior to the 2021 District IEP Meeting. (Id)

The School Psychologist participated in the IEP meeting for the prior school year. (Id 115)

The School Psychologist has not met the Student due to the covid pandemic. (Id 121)

Parent Counsel also cross examined the School Psychologist regarding why hearing education services and music services were not included in the 2021 District IEP. (Id 119-120)

A report from the Student’s hearing teacher at the Unilateral Placement was included in the 2021 District IEP, and hearing services were discussed at the 2021 IEP Meeting. (Id)

The School Psychologist responded that hearing education services are solely for students that have a diagnosed hearing loss. (Id 120) [The Unilateral Placement] wanted sign language to be taught. Sign language isn't taught through hearing education as a related service. (Id) Sign language is taught as a part of a total communication approach and it the individual school would choose whether to teach it. (Id)

The CSE can recommend music therapy as a service. (Id 121)

The 2021 District IEP Meeting Minutes indicate that a one-to-one health paraprofessional was recommended. (Id 126)

District Assistant Principal The District also presented the testimony of the District Assistant Principal at the hearing. The relevant testimony from this witness included the following:

She has been an assistant principal for the past five years and has also been employed by the District as a special education teacher and school based coach. (Nov 4 T 149-50)

The District Assistant Principal’s educational background includes a bachelor's degree in science from SUNY New Paltz in general and special education, a master’s degree in special education from SUNY New Paltz, and a master’s degree from SUNY Stony Brook in school based leadership. (Id 150-1)

She is the assistant principal the District Placement, which is wheelchair accessible. (Id 151-152) There are 40 periods per week at the District Placement, which does not offer an extended school day. (Id 153)

The Unilateral Placement offers a range of classroom staffing ratios, including 12:1:4, 6:1:1, 8:1:1, and 12:1:1. (Id) 8:1:1 indicates there are a maximum of eight students in the classroom. (Id) The second number one means one teacher is in the room. (Id) The last number one indicates the number of classroom paraprofessionals assigned to that classroom. (Id) That doesn't mean that there wouldn't be additional paraprofessionals in that room depending on the student's IEP mandate if they have one-to-one paraprofessionals supporting them. (Id)

There are two 8:1:1 classrooms at the District Placement. (Id 154) At the beginning of the School Year, there was a seat in the 7th grade 8:1:1 classroom at the District Placement. (Id 154) The 8:1:1 classroom serves students in the 6th through 8th grade, and the students are 11 through 14 years old. (Id)

The reading level in the 8:1:1 classroom ranges from pre-reading level to closer to grade level. (Id 154-5) Students are functionally grouped into small groups, and within those small groups, similar students working on similar skills are grouped together. (Id 155)

Other students at the District Placement have a 1:1 health paraprofessional, and the District Placement can accommodate them. (Id 156)

Services are provided to students based on their IEP mandates. (157-60, 164-5)

The District Placement creates its own skill-based curriculum for the 8:1:1 class that utilizes the standards from the State. (Id 160) Teachers modify the curriculum as needed to fit their students' needs. (Id 161) Formal and informal assessments of the students are conducted (Id 161-2) The goal of the curriculum is to help students maximize their abilities (Id 162)

She has reviewed the Student’s IEP and based on the needs, deficits and goals listed in the IEP she believes the District Placement could implement the needs and help him meet those goals and excel. (Id 166-72)

The District Placement would resolve any discrepancy in the IEP by asking the CSE team to reconvene. If it is a clerical error, an adjustment would be made to match the management needs section. (Id 173)

Regarding the implementation of related services mandated on the Student’s IEP, the District Placement would accommodate him as much as possible in school. (Id 176) In the event that the District Placement is not able to provide the related services within the school building, the District Placement would send a related service authorization to the family and support them with that process. (Id) The related service authorization is a referral to an outside agency to provide the services. (Id)

The District Assistant Principal agreed with the District Counsel’s statement that the Student would have been appropriately placed at the Placement based upon his level of functioning and specific needs. (Id 178)

On cross examination, Parent Counsel questioned the District Assistant Principal regarding the composition of the two 8:1:1 classrooms at the District Placement, among other items. The District Assistant Principal testified that students in those classrooms have a range of disability classifications, including autism, other health impairments, intellectual disabilities. (Id 179) There are four nonverbal students, and she is not sure whether any students are classified with [REDACTED]. (Id 180) The majority of the students are ambulatory. (Id) There are no students who requires one to one nurses or who have [REDACTED]. (Id)

The District Placement provides related services in 60 minute sessions if mandated by the student’s IEP. If the District Placement is unable to implement the Student’s related services mandate of 16 hours per week within the District Placement’s 40 period week, the District Placement would issue related service authorizations. (Id 181-2)

The school day at the District Placement begins at 8:15 am and ends at 3 pm. (Id 184) There are 40 periods per week and eight periods per day. (Id) There are approximately 42 minutes in each period. (Id 185)

If a Student is mandated to receive 35 instructional periods plus 16 hours of related services per week, the District Placement would do as much they can at school and would send related service authorizations to fill the void. (Id)

She is not sure whether any of the students in the District Placement’s two 8:1:1 classrooms communicate using sign language. (Id 186) The District Placement does not have any certified sign language teachers. (Id) She is not sure whether any of the students in the District Placement’s two 8:1:1 classrooms are on the autism spectrum and have a behavior paraprofessional. (Id 186-7) The District Placement has music therapy that is brought in through a grant. (Id 187)

She does not know whether there are students with vision impairments or with a diagnosis of cortical visual impairment at the District Placement. (Id 194, 196)

The District Placement has a vision teacher who supports the students based on their different visual needs and who collaborates with the teachers to ensure the needs of students with visual impairments are being met. She also helps create tactile cues for the students and helps to train the staff in braille and in using light machines to project different enlargement techniques. (Id 194)

If vision therapy is not on the recommended services page of the IEP but within the present levels of performance and the description of the student, or once the student is enrolled and the staff notice that the student has a visual need, they would bring the student to the vision teacher and then the student would be getting strategies, collaborating. (Id 196) If the student needs the services, the District Placement would seek an IEP reconvene to add the services specifically if the student really needs additional supports of a vision teacher at a very frequent rate, more than just collaboration with the teacher. (Id 195-6)

Unilateral Placement Director The Parent presented the testimony of the Unilateral Placement Director, at the hearing and by affidavit (Ex. L) The relevant testimony from this witness included the following:

The Unilateral Placement Director has been the Director of Special Education at the Unilateral Placement since June 2018 where she is responsible for overseeing the educational components of the program including some staff development, involvement in the intake of new students, and IEP development. (Ex. L-1)

She has Bachelor degrees in Political Science, Linguistics, and Psychology, as well as Masters of Science in Teaching, which covers both general and special education. (Id) She is dually licensed in New York State for Students with Disabilities grades 1-6 and Childhood Education. (Id)

She has worked with students on all levels of the autism spectrum in a range of different settings. (Feb. 9 T 370)

She is not a special education teacher and has not taught the Student. (Dec. 1 T 226) She has participated in all of the Student’s IEP meetings (Id 231).

The Unilateral Placement is a private, not-for-profit, and highly specialized special education program in New York City created for children who suffer from acquired [REDACTED] injuries or [REDACTED] disabilities. (Ex. L-2)

Teachers at the Unilateral Placement do not have to fully licensed at the time of hire but do have to be in process with the State. (Dec. 1 T 271) If they don’t have their full license, they must have a master’s degree in special education. (Id)

The Unilateral Placement has a 12-month extended school-year calendar and offers all services during its extended school day, which runs from 8:30 a.m. to 5:00 p.m. (Id) Many of the students at the Unilateral Placement are non-verbal and nonambulatory. (Id) Every student at the Unilateral Placement requires the assistance of a 1:1 paraprofessional, and many students require a 1:1 nurse to attend to the students’ medical needs. (Id)

There are four (4) 6:1:1 classes and two (2) 8:1:1 classes at the Unilateral Placement, which can accommodate students aged 5 through 21. (Id) Most students at the Unilateral Placement have a disability classification of [REDACTED] and have management needs that are either intensive or highly intensive and which require a significant degree of individualized attention and intervention. (Id)

The Student is enrolled in an 8:1:1 class at the Unilateral Placement and the age range of the students in his class is 8 to 11. (Dec. 1 T 270)

The Unilateral Placement offers a variety of related therapy services, including occupational therapy, physical therapy, speech therapy, vision education, assistive technology services, parent counseling and training, and services for the deaf and hard of hearing. (Ex L-2)

Related services are not included in base tuition. (Dec. 1 T 257) Makeup sessions are scheduled for any missed related services sessions. (Id 258) The student has excellent attendance. (Id 257) Student attendance is tracked through related service providers' notes (Id 261) Transportation services for most, if not all, of the students at the Unilateral Placement are provided by Sisters Transportation. (Id 273)

Student progress is measured through teacher notes and progress reports prepared by the Unilateral Placement. (Feb. 9 T 332) The Unilateral Placement does not issue report cards to students. (Id 334) Any assessments and evaluations that are conducted on any student are incorporated into the IEP, which is given to the parent. (Id)

The Unilateral Placement uses a highly individualized curriculum that's focused on an individual student's goals and implemented on a thematic basis per classroom. (Id 334-5) There are school-wide themes and the teachers will choose what is appropriate for their class, given the class age and skills. (Id) There is no written curriculum at the Unilateral Placement. (Id) The Unilateral Placement uses a push in pull out model for related services. (Id 360-1)

The Unilateral Placement Director participated in the 2021 District IEP Meeting for the Student on March 17, 2021. (Ex. L-4; Feb. 9 T 356) The 2021 District IEP Meeting lasted two hours. (Id) The CSE adopted many of the Unilateral Placement’s recommendations. (Id)

The CSE agreed with the Unilateral Placement’s recommendations that the Student be placed in a class with an 8:1:1 ratio and that he receive related services of 60-minute duration. (Ex. L-4) The Unilateral Placement Director disagreed with the District’s failure to recommend vision education services, hearing education services, and music therapy. (Id)

It is often the case that NYC DOE specialized 8:1:1 placements are for students on the autism spectrum or students with significant emotional disturbance. (Dec. 1 T 278) An NYC DOE specialized 8:1:1 placement would be an inappropriate placement for the Student. (Id 279)

One reason is that students who have severe enough needs to be in a small District 75 class have significant behavioral challenges who would pose a significant threat to the Student’s safety. (Feb. 9 T 371) The Student has a [REDACTED] and complex medical needs. (Id) Students at that level of the autism spectrum have poor safety awareness and poor awareness of other people. (Id) Students with autism are highly impulsive and can make highly-repetitive movements without regard to what's around them. (Id)

With respect to social development, students with autism struggle with making connections with other people. (Id 372) It would be hard for the Student to connect with them, and he wouldn't have good peer models for strong peer interactions and appropriate peer interactions. (Id)

Students with autism have echolalic tendencies where they will repeat phrases and words often without any communicative intent which would be confusing for the Student, who is learning what different phrases mean and how to use them purposefully. (Id)

The noise level of students that do a lot of repeating words, and have a lot of repeated movements creates a distracting visual and auditory environment that would be hard for the Student to be able to focus in. (Id 373)

Most of the other students in the Student’s 8:1:1 class at the Unilateral Placement are at a similar physical level as the Student. (Id 374) They're primarily wheelchair users and nonambulatory but can walk short distances in gait trainers or with handheld assistance. (Id)

The majority of the class also receives the same services as the Student. (Id 375) A couple of the other students also have one-to-one nurses. (Id) All of the other students have a [REDACTED] injury or [REDACTED] disorder. (Id 383) All of them have an internal classification of [REDACTED] and most or all have a [REDACTED] classification on their District IEP. (Id)

The Student re quires related services in 60 minute sessions because he is working on a wide range of skills. (Id 357) The Student cannot practice the skills on his own without specialized support. (Id 359) The Student requires additional processing time for questions for planning his motor response. (Id)

The Student receives music therapy based on an assessment or evaluation by a music therapist, which showed that he demonstrated a high level of responsiveness to music therapy techniques. (Id 363)

The Student has made progress at the Unilateral Placement, academically and in terms of his skills. (Id 369)

On cross-examination, District Counsel questioned the Unilateral Placement Director at length regarding alleged discrepancies in the Unilateral Placement IEP, including duplicative items and incorrect dates (Dec. 1 T 227-253; Feb. 9 T 321-30)

The Unilateral Placement Director attributed the discrepancies to clerical error or mistake. (Dec. 1 T 235-6, 246; Feb. 9 T 326, 349-50)

The District Counsel also questioned the Unilateral Placement Director at length regarding recordkeeping policies at the Unilateral Placement, including but not limited to teacher notes, how progress is measured, and the Unilateral Placement’s response to the District’s request for documents. (Feb. 9 T 329-48)

The Unilateral Placement Director stated that she does not supervise the teachers or related services providers and does not review their notes. (Dec. 1 T 261, Feb. 9 T 333)

It is the Unilateral Placement’s policy that teachers keep notes, and notes relating to prior school years may have been lost. (Id 343)

Mother The Parent presented the testimony of the Student’s mother, at the hearing and by affidavit (Ex. K) The relevant testimony from this witness included the following:

The mother described the Student’s medical condition and needs. (409-11) In September of 2021, the mother attempted to contact the coordinator at the District Placement, left several messages and was unable to reach her. (Id 411) She visited the school in person instead. (Id, 439-443)

The mother works as a nurse in the neonatal intensive care unit and as a school nurse during the day. (Id 412) She has worked at the District Placement on at least one occasion. (Id 412, 442)

When visiting the District Placement in September, she spoke with two of the nurses there. (Id 412, 442-43) She also met briefly with the coordinator. (Id 415)

She is concerned that the District Placement does not have sufficient [REDACTED]. (Id 412-13, 417-18) The nurses she spoke with stated that the District Placement currently does not have students with [REDACTED]. (Id 417)

The coordinator stated that the Unilateral Placement does not have one-to-one paraprofessionals at the current time and that they have group paraprofessionals unless the IEP indicates differently. (Id 417, 439) The mother requested information from the coordinator regarding the 8:1:1 class at the District Placement but did not receive it. (Id 421)

Not having an individual paraprofessional would present a safety risk to the Student. (Id 419-20)

Due to her work schedule she would not be able to accommodate related services provided at the home through related service authorizations. (Id 422)

During the School Year and during the prior school years, the Student has made progress at the Unilateral Placement and has benefited from the Unilateral Placement. (Id 423-26) He has made progress in math, physical therapy skills and occupational therapy skills and has benefited from vision services and music therapy. (Id 424-5)

The mother attended the 2021 District IEP Meeting. (Id 435, 446-53; Ex. K-2) The 2021 District IEP meeting lasted more than one hour. (March 22 T 447) The mother agreed with the recommendation that the Student be placed in a class with an 8:1:1 ratio and that he receive related services in 60-minute increments. (Ex. K-2) She disagreed with the CSE’s decision to not recommend vision, hearing, and music therapy services for [REDACTED]. (Id) The mother does not believe that the CSE’s recommendation of a District 75 public school is appropriate for the Student. (Id, March 22 T. 445)

The mother cannot afford to pay for the Unilateral Placement and await reimbursement. (Ex. K2)

On cross-examination, District Counsel questioned the mother regarding the Ten Day Notice, including why related services were not mentioned in the Ten Day Notice. (Id 431-36)

The mother placed the Student at the Unilateral Placement because she was not satisfied with the Student’s placement for the 2019-20 school year. (Id 448)

DECISION

The first prong of the Burlington/Carter analysis is whether the District has met its burden of proof regarding whether it provided the Student a FAPE for the School Year.

Based on a preponderance of the evidence standard, I find that the District did not provide a FAPE to the Student for the School Year because the District did not sufficiently establish that the District Placement and 2021 District IEP were appropriate to meet the Student’s unique special education needs resulting from his severe medical condition and impairments.

Regarding the appropriateness of the class composition and peer group in the District Placement 8:1:1 classroom, New York State Education Law states that students with disabilities placed together for purposes of special education shall be grouped by similarity of individual needs, including a limited range of academic or educational achievement and similar learning characteristics. N.Y. Comp. Codes R. & Regs. tit. 8 § 200.6(a)(3)

Based upon the testimony of both the District Placement Assistant Principal and Unilateral Placement Director, the individual needs of the Student would not necessarily be similar to those of students in the District Placement 8:1:1 classroom.

For example, three quarters of the students in the District Placement 8:1:1 classrooms are verbal, the majority are ambulatory, and there are no students who require one to one nurses or who have a [REDACTED]. In addition, the District Assistant Principal was not able to confirm whether any students in the District Placement 8:1:1 classrooms are classified with [REDACTED], are on the autism spectrum and have a behavior paraprofessional, communicate using sign language, or have vision impairments or a diagnosis of cortical visual impairment. (Id 194, 196)

Regarding the range of academic or educational achievement and social development, based on the testimony of the District Assistant Principal and Unilateral Placement Director, the students in the District Placement 8:1:1 classroom have a relatively broader range of disabilities and levels, including autism, other health impairments, intellectual disabilities, as compared to the Unilateral Placement’s 8:1:1 classroom.

The Student’s 8:1:1 class at the Unilateral Placement has an age range of 8-11, and the other students have similar learning characteristics, disabilities and needs. In addition, the Unilateral Placement Director testified that the characteristics of the students in a typical 8:1:1 District special education classroom may interfere with or detract from the Student’s instruction due to his distractibility and vision problems and may also present potential safety issues.

The District’s evidence, notably the 2021 District IEP, confirms that the Student requires a significant degree of individualization of his curriculum, including modifications to the general education curriculum in terms of depth, breadth and pacing of materials. (Ex. 7-16, 9) The Student also requires a specific learning environment, including “a quiet and dimly lit environment devoid of visual distractions” and a “highly structured classroom or corner room with less stimulus from visual and auditory distractions”. (Ex. 7-5, 7-15)

The Hearing Education Needs section of the 2021 District IEP states that the Student requires “a quiet learning environment a dim room and breaks when he starts displaying behaviors that impact the session.” (Ex. 7-14)

The Physical Development section of the 2021 District IEP states that when the Student is dysregulated, he demonstrates behavioral challenges including grabbing kicking, and hitting. (Ex. 7-11) “He benefits from a quiet, dark room to limit disruptions.” (Id) “The Student benefits from a quiet environment and when he is in an environment with minimal distractions, he is attending to the task.” (Id 7-13)

The Unilateral Placement Director testified that placement in an 8:1:1 class with autistic students would interfere with the Student’s ability to learn and to communicate, present a distracting visual and auditory environment, and present a safety risk as well. The Student’s mother also testified as to safety issues at the District Placement based on her experience working as a school nurse and visiting the District Placement. due primarily to the fact that there are no other students at the District Placement with [REDACTED] and her belief that the staff do not have the necessary training and experience in this regard. The District Assistant Principal also testified that there are no students with [REDACTED] at the District Placement.

Regarding implementation of the Student’s IEP, the District Assistant Principal testified that the District Placement would rely on related service authorizations for private agencies to provide related services mandated on the Student’s IEP that could not be implemented either at the District Placement or within the District Placement’s regular school day. By comparison, the Unilateral Placement offers an extended school day and did not indicate a reliance on related service authorizations to implement the IEP.

Regarding the Student’s related services mandate, I find that the District did not provide a sufficient explanation regarding why music therapy, hearing and vision services were not included as separate related services in the 2021 District IEP or how these services would otherwise be incorporated into the Student’s program. (Nov. 3 T 113-15)

Music therapy, hearing and vision services were each discussed at the 2021 IEP Meeting (D Ex. 16). In addition, the District participated in the prior IEP meeting. The Student has cortical visual impairment and is legally blind, and the Mother expressed concerns about the Student’s vision at the 2021 District IEP Meeting. (Ex. 16-5) The District also did not request a vision evaluation. By comparison, music therapy, hearing and vision services were included as separate services on the Unilateral Placement IEP. (Ex. H-48)

The Hearing Education Services section of the 2021 District IEP states that the Student benefits from using signs, and that “Learning and using these signs is important in case his AT device does not work or is not with him. [The Student] will be able to communicate better by learning signs.” (Ex. 7-14) However the District Placement does not have any certified sign language teachers, according to the District Assistant Principal.

Finally, regarding the alleged discrepancy relating to the paraprofessional services specified on the District IEP, even if this discrepancy was due to a clerical error or computer glitch, I find that there is a sufficient alternative justification for a finding of a denial of FAPE, and therefore this particular issue is not necessarily determinative.

With respect to the second prong of the Burlington/Carter analysis, the issue for adjudication at the hearing was whether the Unilateral Placement was appropriate. Under the Burlington/Carter analysis, the Parent bears the burden of proof in this regard.

Based on a preponderance of the evidence standard, I find that the Parent has presented sufficient evidence and witness testimony for purposes of establishing that the Student’s educational program at the Unilateral Placement for the School Year was appropriate insofar as it offered an educational program designed to meet the Student’s unique special education needs resulting from the Student’s severe medical condition and related impairments, and was reasonably calculated to provide an educational benefit.

For example, as compared to the District Placement, the Unilateral Placement offers a more appropriate peer group, additional related services of vision, hearing and music therapy, and an extended school day that does not require the issuance of related service authorizations.

Regarding the District’s argument that the Unilateral Placement’s program is a generalized curriculum for all students with [REDACTED] disorders or [REDACTED] injuries and not specially designed for the Student, the District did not present any evidence for purposes of comparison.

Regarding the discrepancies highlighted by the District with respect to the Unilateral Placement IEPs and record keeping policies, I find that there is sufficient additional evidence to support a finding of the appropriateness of the Unilateral Placement.

With respect to the District’s request for documents, including teacher notes, District Counsel argued that these documents are relevant for purposes of the Parents meeting their burden of proving that the unilateral placement is appropriate, which includes demonstrating that the student can and has made progress. (Feb. 9 T 347) However, pursuant to applicable case law the Parent’s burden of proof is limited to demonstrating that the Unilateral Placement “provides instruction designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.” See Frank G. at 365.

With respect to the third prong of the Burlington/Carter analysis, which considers the equities of the case, the Parent participated in the 2021 District IEP Meeting and expressed their disagreement with the District Placement. The Parent also visited the District Placement and spoke with the staff. The mother’s decision to unilaterally enroll the Student at the Unilateral Placement was not unreasonable based on the Student’s severe medical condition and impairments, prior educational history, and safety concerns.

Regarding the District’s argument that the contents of the Parent’s Ten Day Notice was insufficient, I do not find that the alleged deficiencies in the Ten Day Notice are sufficient to reduce or deny an award of tuition funding. The Ten Day notice was issued timely, and there is no indication that the District responded to the Ten Day Notice. The District had prior notice of this Student’s circumstances based on its participation in the IEP meeting for the prior school years. In addition, the Mother expressed her concerns regarding the Student’s vision services at the 2021 District IEP Meeting (Ex. 16-5).

In concluding the third prong of the Burlington/Carter analysis, I find that the equities of the case favor the Parent.

With respect to the Parent’s request for transportation services, I find that the transportation services are consistent with the special transportation recommendations on the 2021 District IEP, and the District did not otherwise object to this relief. (Ex. 7-30)

In conclusion, based on a preponderance of the evidence standard, I find that the Student was not provided a FAPE for the School Year, that the Unilateral Placement was appropriate, and that the equities of the case favor the Parent.

ORDER

Based upon the foregoing, it is hereby:

• ORDERED THAT, the Student was not provided a FAPE for the School Year; and
• ORDERED THAT, the District shall pay the Unilateral Placement for the Student’s educational program for the School Year. The Unilateral Placement shall provide an itemization of related services not included in base tuition pursuant to the Enrollment Contract;
• ORDERED THAT, the District shall pay for the Student’s transportation services for the School Year pursuant to the Transportation Contract. The Transportation Company shall provide an itemization of transportation services provided pursuant to the Transportation Contract.

SO ORDERED

DATED: July 18, 2022

/s/ Sebastian Weiss

Sebastian Weiss

Impartial Hearing Officer

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.

PARENT EVIDENCE:

PARENT EXHIBIT

DATE

DESCRIPTION

NUMBER OF PAGES

7/7/2021

Due Process

Complaint –

IH # 210883

2021-22 School Year

B 09/10/2021 Findings of Fact and Decision IH# 196218 19

C 04/24/2020 UNILATERAL PLACEMENT IEP 50

D 03/24/2021 NYC DOE Prior Written Notice & School Location Letter 6

E 06/15/2021 NYC DOE Prior Written Notice & School Location Letter 6

F 06/23/2021 Ten Day Notice 2

G 06/29/2021 Unilateral Placement Enrollment Contract 2021-22 School Year 7

H 07/01/2021 UNILATERAL PLACEMENT IEP 50

I 07/26/2021 Transportation Agreement 2021-22 School Year 5 J 2021-2022 Unilateral Placement Schedule 2021-22 School Year 1

K 10/2021 Mother Affidavit 3

L 10/2021 School Psychologist Affidavit 4

M 04/24/2020 UNILATERAL PLACEMENT IEP 47

DISTRICT EVIDENCE:

EXHIBIT NO.

DATE

DESCRIPTION

NO. OF PAGES

1/20/2021

AT Recommendation

1/25/2021

Notice of IEP Mtg

2/9/2021

Notice of Social history

3/16/2021

Notice of Social history

3/16/2021

Social History Update

3/16/2021

Assessment Planning

3/17/2021

IEP

3/17/2021

IEP Attendance Page

3/24/2021

PWN

5/26/2021

School Placement Request D75

Various Dates

SESIS Log

12 [JE-2]

4/24/2020

Unilateral Placement IEP 20-21 SY

November 13 [no year]

Unilateral Placement Quarterly Report

14 [JE-1]

9/10/21

FOFD 196218

19 15 [JE-3] 6-15-21 School Location Letter 3 16 3/16/2021

IEP Minutes 3-17-21

11/30/2021

DOE Request for Documents

12/10/2021

Unilateral Placement Response to Request for Docs

JE-1

9/10/21

FOFD 196218

JE-2

4/24/20

Unilateral Placement IEP

JE-3

6/15/21

Prior Written Notice – SLL

IHO EVIDENCE:

Emails from District Counsel and Parent Counsel dated Dec. 9, 2021. (Ex. A)

Footnotes

[1] Exhibits, or “Ex.”, shall be referred to as follows: “P” for Parent Exhibits, which are otherwise indicated alphabetically; “D” for District Exhibits, which are otherwise indicated numerically; “JE” for Joint Exhibits; “CB” for closing brief; “IHO” for any Impartial Hearing Officer’s exhibits; and “T” for the hearing transcript, accompanied by the applicable hearing date.

New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT

ORDER