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Special Education Law
DECISIONParent PrevailedIHO Case No. 210949

New York City Department of Education, Impartial Hearing Decision

May 30, 2022·Jean Marie Brescia·Representative

NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.

NYSED # 554848 / NYC # 210949

FINDINGS OF FACT AND DECISION

Case Number: 210949

Student’s Name: REDACTED REDACTED

Hearing Requested By: Parent

Dates of Hearing: January 5, 2022

January 10, 2022

February 15, 2022

March 23, 2022

May 6, 2022

May 11, 2022

Actual Record Close Date: May 22, 2022

Hearing Officer: Jean Marie Brescia, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

January 5, 2022 For the Parent:

REDACTED REDACTED, Esq.

For the Department:

REDACTED REDACTED REDACTED, District Representative

January 10, 2022 For the Parent:

REDACTED REDACTED, Esq.

For the Department:

None

February 15, 2022 For the Parent:

REDACTED REDACTED, Esq.

For the Department:

REDACTED REDACTED REDACTED, District Representative

March 23, 2022 For the Parent:

REDACTED REDACTED, Esq.

For the Department:

REDACTED REDACTED, District Representative

REDACTED REDACTED, REDACTED School Psychologist

May 6, 2022 For the Parent:

REDACTED REDACTED, Esq.

REDACTED REDACTED, Parent For the Department

REDACTED REDACTED, District Representative

REDACTED REDACTED, REDACTED School Psychologist

May 11, 2022 For the Parent:

REDACTED REDACTED, Esq.

REDACTED REDACTED, Esq.

REDACTED REDACTED, Parent

REDACTED REDACTED, Program Director, REDACTED REDACTED For the Department

REDACTED REDACTED, District Representative

On December 22, 2021, I was designated as impartial hearing officer, pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1415(f), in the matter of REDACTED REDACTED, after the appointment of another hearing officer was rescinded. REDACTED’s parent requested the hearing on July 8, 2021 in order to challenge the Department of Education’s failure to offer REDACTED a free appropriate public education for the 2021-2022 school year and to seek “an order that the DOE continue to fund the program set forth in the IEP dated 6/21/2016” for REDACTED for the 2021-2022 12-month school year and compensatory services in the form of a bank of hours equivalent to the “missed services.” Ex. A.[1] REDACTED’s parent challenges a November 2020 IESP, which was the IESP in place at the beginning of the 2021-2022 school year. Exs. A, C.

A pre-hearing conference was conducted on January 5 and continued on January 10, 2022. The hearing was conducted on February 15, March 23, and May 6, 2022. The hearing was completed on May 11, 2022.

On the record, the Department agreed that REDACTED was mandated for eight periods of SETSS for the time period from September 13, 2021 to November 16, 2021. Tr. 32-33. The Department objected to Parent’s request for SETSS for the period from November 17, 2021 through the remainder of the 2021-2022 school year because Parent had requested a public school placement. Tr. 33. Parent clarified that she was seeking compensatory services in the form of a bank of 40 hours of occupational therapy.

The parties made joint applications on the record for extensions of the compliance dates. The applications were granted by written Orders of Extension dated January 10, February 15, March 23 and May 6, 2022.

The record closed on May 22, 2022, upon the hearing officer’s receipt and review of a document which Parent submitted to supplement the record,[2] and the Actual Record Close Date is May 22, 2022.

Appended to the record are the names of the persons who appeared at the hearing and a list of the documents entered into evidence.

Findings of Fact

  • • REDACTED is a REDACTED-year-old boy whose disability is classified, for the purposes of the IDEA, as emotional disturbance. Ex. D.
  • • REDACTED has a history of interfering behaviors, including aggression, impulsivity, stealing, eloping, pulling the fire alarm, and disrupting other students. He has difficulties sitting and focusing in the classroom and struggles with academics, reading comprehension in particular.. Tr. 138-141, 174; Ex. F at ⁋ 2.
  • • REDACTED attends mainstream classes at REDACTED, a private religious school. Tr. 41. He has attended the school since September 2017. Ex. 4 at 5.
  • • REDACTED has a 12-month program, and REDACTED attended REDACTED for Summer 2021. Tr. 154-155.
  • • The DOE’s CPSE convened an IEP meeting for REDACTED on June 15, 2016. This IEP includes SEIT services (eight hours per week as a direct service and one hour per week as an indirect service, a 1:1 paraprofessional, a 12-month program and related services (speech and occupational therapies).[3] Ex. B.
  • • This IEP does not indicate that services be provided in REDACTED. Ex. B at 1, 16.
  • • The DOE’s CSE convened an IEP meeting for REDACTED on November 27, 2019. Ex. 1. REDACTED’s mother attended this meeting. Ex. 2.
  • • The IEP references an October 2019 REDACTED REDACTED Psychoeducational evaluation and a report from REDACTED’s school. On the WPPSI, REDACTED performed in the borderline range on verbal comprehension with other subtest scores in the borderline to average ranges, for a Full Scale IQ score in the borderline range. Ex. 1 at 1, Ex. 3 at 2-3.
  • • The IEP notes REDACTED’s struggles with attention and distractibility and that he demonstrated aggressive, defiant and hyperactive behaviors and stealing at school, as set forth in a report from REDACTED’s school. Ex. 1 at 4.
  • • The IEP recommended that REDACTED attend an Integrated Co-Teaching class in REDACTED, counseling, occupational therapy and speech and language therapy, all as components of a 10-month program. Ex. 1 at 16-17.
  • • The IEP states that: “Monolingual teacher/provider will be utilized in the event a REDACTED REDACTED teacher/provider is unable to be found. Alternate placement paraprofessional who speaks REDACTED would be utilized to aid translation in a monolingual situation. Ex. 1 at 5.
  • • The DOE’s CSE reconvened on November 19, 2020 and developed an IESP for REDACTED. Tr. 47; Ex. 4; Ex. C. REDACTED’s mother attended the meeting. Ex. 4 at 20.
  • • REDACTED’s parent requested an IESP for REDACTED. Tr. 102.
  • • The CSE considered an evaluation dated August 2020, provided by REDACTED’s parents. Tr. 46; Ex. 5.
  • • Testing revealed that REDACTED presented with deficits in working memory skills, difficulty concentrating on auditory information, visual working memory and story comprehension. Testing scores in these areas were in the 2nd percentile. Tr. 92-94; Ex. 4 at 1-2. He also attained lower-range scores on assessments of attention. Ex. 4 at 3. REDACTED’s reading score was also at the 2nd percentile. Tr. 95; Ex. 5..
  • • Personnel from REDACTED’s school did not participate in the meeting despite CSE notification of the meeting. Tr. 102-103.
  • • REDACTED’s parent and school did not provide all material requested by the CSE, such as “anecdotal records.” Tr. 85, 104; Ex. 4 at 7.
  • • The IEP states the following: “The school did not provide the CSE with anecdotal records, but stated that there are times that many days can pass without occurrences of unexpected behaviors. The school requested that the child be provided with a 1:1 paraprofessional ‘just in case.’ The school has become reliant on this support.” Ex. 4 at 7.
  • • Parent and the SETSS supervisor (from the agency Parent retained to provide SETSS and the paraprofessional to REDACTED) informed the CSE that REDACTED had a history of fighting with classmates, destructive behavior, “severe impulsivity,” stealing and elopement. Tr. 86-88.
  • • REDACTED’s mother stated that she was concerned about REDACTED’s social development and self-regulation, that he had “a tendency to behave with impulsivity and clever defiance of all authority and social norms” and that his problematic behaviors were impeding his learning at school. Tr. 51, 85.
  • • REDACTED’s mother informed the CSE that REDACTED’s “troublesome behaviors are less frequent and not as extreme as they had been in the past. In general, ‘he has come a long way.’” Ex. 4 at 7.
  • • REDACTED needed “a considerable amount of remedial instruction.” Tr. 62.
  • • REDACTED’s mother did not remember whether or not she asked for a paraprofessional at the meeting. Tr. 144.
  • • The CSE recommended that REDACTED receive SETSS (eight periods per week in REDACTED as a group service); speech-language therapy (two 30-minute sessions per week, individually in REDACTED and one 30-minute session per week as a group service in REDACTED), occupational therapy (two 30-minute sessions per week individually) and counseling (two 30-minute sessions per week individually in REDACTED). Ex. 4 at 17.
  • • The CSE recommended eight periods per week of SETSS because REDACTED was a “very capable” child who “wasn’t functioning at all in the classroom, due to social-emotional reasons, really behavioral in nature” and was not benefitting from classroom instruction. Tr. 48-49; see also 62, 94.
  • • SETSS and speech therapy would address REDACTED’s difficulties with story comprehension, rote learning and working memory. Tr. 105.
  • • The CSE also recommended counseling and occupational therapy to address self-regulation and impulsivity. Tr. 52, 105. Occupational therapy, by focusing on regulation, would also assist in improving concentration and task performance. Tr. 106.
  • • The occupational therapist, counseling provider and SETTS provider can address a student’s organizational skills and executive functioning. Tr. 55-56. The counseling provider and SETSS provider can also address a REDACTED’s social skills challenges. Tr. 56, 58-59.
  • • IESP did not include a 1:1 paraprofessional or a 12-month program.
  • • REDACTED’s parent did not request a 12-month school year for REDACTED. Tr. 60-61.
  • • The school psychologist opined that a 12-month school year was not appropriate for REDACTED because he was not a “severely impaired” child. Tr. 60.
  • • Parent sent a ten-day notice letter to the DOE on June 27, 2021 which seeks reimbursement or direct payment for REDACTED and related services. Ex. E at 1-2.
  • • Parent retained the services of REDACTED (the “agency”) to provide SETSS and a paraprofessional for REDACTED for the 2021-2020 school year, commencing on July 1. Exs. F at ⁋ 11, I.
  • • REDACTED’s parent entered into a contract with the agency. Under the terms of the contract, REDACTED’s parent is obligated to pay for the SETSS and paraprofessional services that the agency provides to REDACTED at his school. Tr. 164-165, 167, 171; Exs. F at ⁋ 14, I.
  • • The agency provides eight hours per week of SETSS and a paraprofessional for REDACTED. Tr. 168.
  • • The agency charges $60.00 per hour for paraprofessional services and $175.00 per hour for SETSS. Tr. 167-168. These rates include the costs of compensating the providers, payroll taxes for the providers, supervision, training, insurance and overhead. Ex. G at ⁋ 11.
  • • The agency pays the SETSS provider $93.00 per hour. Tr. 169. The provider is a certified special education teacher. Ex. Gat ⁋ 16; Ex. G.
  • • The agency provides twice-monthly supervision and training to the SETSS provider as well as supplies and materials. Tr. 169-170, 175-176.
  • • The agency provides a licensed behavior analyst to supervise the paraprofessional, including reviewing the paraprofessional’s log of REDACTED’s behaviors and providing guidance to the paraprofessional on addressing the behaviors. Tr. 176-177. The costs of the supervision are included in the $60.00 per hour rate charged by the agency for paraprofessional services. Tr. 177.
  • • Agency personnel working with REDACTED utilize a reward-based behavior plan. Tr. 162.
  • • The Program Director stated that REDACTED was making “slow but steady progress in his learning” and “in the frequency and severity of his behaviors. Tr. 171. No progress reports, data on progress on goals or report cards were offered in evidence.
  • • The Program Director stated that REDACTED was functioning at approximately a beginning third grade level in reading and math. Tr. 172.
  • • REDACTED did not receive the OT mandated in the IESP during the 2021-2022 school year. Tr. 141; Ex. F at ⁋ 15.
  • • In fall of 2021, when the IESP expired, REDACTED’s parent requested an IEP and a public school placement for REDACTED. Tr. 52-53.
  • • The CSE reconvened on November 17, 2021 to develop an IEP for REDACTED. Tr. 52; Ex. 6 at 2, Ex. D. REDACTED’s mother attended this meeting. Ex. D at 27.
  • • REDACTED’s mother had requested a public school placement for REDACTED and reiterated at the meeting that she wished to “explore public school placement.” Ex. D at 6; Ex. F at ⁋ 6.
  • • The IEP developed at this meeting is not challenged in the due process complaint. Ex. A.
  • • This IEP recommends that REDACTED attend REDACTED REDACTED ICT classes and receive related services, all as part of a 10-month program. Ex. D at 19-20.
  • • The IEP states that: “If there is no class available in the recommended language of instruction, REDACTED will be placed in an interim monolingual class with an alternate placement paraprofessional until REDACTED is placed in an appropriate REDACTED class. An alternate placement paraprofessional is REDACTED in the recommended language of instruction.” Ex. D at 26.
  • • The IEP includes an implementation date of November 17, 2021. Ex. D at 19.
  • • The DOE offered REDACTED a placement at P.S. 230. Ex. F at ⁋ 7.
  • • School personnel informed REDACTED’s mother that the school did not have a REDACTED REDACTED ICT program. Tr. 145; Ex. F at ⁋ 8.
  • • Staff at REDACTED’s school informed REDACTED’s mother that REDACTED continues to need SETSS and a paraprofessional to address his impulsivity and behaviors. Tr. 146-147.
  • • REDACTED’s mother observed that REDACTED was performing “below average” in class. Tr. 148. No school reports were offered in evidence.
  • • At the hearing, the Program Director of the agency opined that REDACTED needed summer services for behavior management and learning needs and that without such services, he would experience regression. Tr. 161. There is no evidence that this information was provided to the CSE at the November 20, 2020 meeting.
  • • The Program Director of the agency opined that REDACTED needs a paraprofessional for behavior management and would not be able to be maintained in a mainstream classroom without a paraprofessional. Tr. 163-164.
  • • Parent asserts that “[p]aying for these services up front would be an extreme hardship for me. I would not be able to afford it without outside assistance.” Ex. F at ⁋ 13. Parent did not substantiate this assertion with documentation, such as tax returns.
  • • REDACTED’s parent has made no payments to the agency for services provided to REDACTED. Tr. 165.

Decision

REDACTED’s parent challenges the November 2020 IESP on the following grounds: (1) group rather than individual SETSS and only eight rather than nine periods of SETSS and (2) failure to recommend a 12-month program. There are no challenges to the failure to offer a paraprofessional. Parent does not challenge any other IEPs. Parent requests an order requiring the DOE to “continue to fund the program set forth in the IEP dated 6/21/2016.” This IEP includes SEIT services (eight hours per week as a direct service and one hour per week as an indirect service, a 1:1 paraprofessional, a 12-month program and related services (speech and occupational therapies). Ex. B. This IEP does not indicate that services be provided in REDACTED. Ex. B at 1, 16. Parent is also seeking a bank of compensatory services for any missed services, specifically, as clarified at the hearing, 40 hours per week of occupational therapy. No basis was presented for this number of hours of compensatory services. All relief requested in the due process complaint relates to the 2021-2022 school year.

The central purposes of the IDEA are to ensure: (1) that students with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living and (2) that the rights of students with disabilities and their parents are protected. 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 U.S. 49, 51 (2005); Board of Education v. Rowley, 458 U.S. 176, 179-181 (1982). The first step in the inquiry is to determine whether the school district offered a free appropriate public education to the student. See, e.g., Application of a Child with a Disability, Appeal No. 07-008; Application of a Child with a Disability, Appeal No. 06-121. A free appropriate public education includes special education and related services designed to meet the student’s individual needs, provided in conformity with a written IEP. See 20 U.S.C. §1401(9); 20 U.S.C. §1414(d).

A school district offers a student a free appropriate public education when (1) it complies with the procedural requirements of the IDEA and (2) the IEP developed by the district must be “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988, 999 (2017); see also Rowley, 458 U.S. at 207; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 (2d Cir. 2014); R.E. v. New York City Dep’t of Educ., 694 F.3d 167, 189-90 (2d Cir. 2012). A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” Rowley, 458 U.S. at 203. The school district also must ensure that “[t]o the maximum extent appropriate, children with disabilities are educated with children who are not disabled” that is, in the student’s least restrictive environment. 20 U.S.C. § 1412(a)(5)(A); 8 NYCRR 200.1(cc), 200.6(a)(1); see M.W. ex rel. S.W. v. New York City Dep’t of Educ., 725 F.3d 131,143 (2d Cir. 2013).

The particular educational needs of a student with a disability and the services required to meet the needs must be set forth in a written IEP. Honig v. Doe, 484 U.S. 305, 311 (1988); 20 U.S.C. § 1401(9)(D); see 20 U.S.C. § 1414(d); 34 C.P.R. § 300.320. An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs. 34 C.F.R. 300.320 (a)(1); 8 N.Y.C.R.R. 200.4(d)(2). The CSE then must establish annual goals related to the identified needs of the student and provide for the use of appropriate special education services in the IEP. 8 N.Y.C.R.R. 200.4(d)(2)(iii), (v).

In New York, the school district bears the burden of proof in an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. N.Y. Educ. Law § 4404(1)(c); see R.E., 694 F.3d at 184-85.

I must also consider that REDACTED is (and for the time being remains) a “dually-enrolled” student, and, under New York State Education Law § 3602-c, parents of students with disabilities have the right and ability to select a nonpublic school willing to enroll their child, and places the burden of developing and providing appropriate special education programming upon the school district in which such school is located. The school district must develop an appropriate program for the student in the environment in which the student will receive his or her education (i.e. – the nonpublic school). Section 3602-c expressly states that a school district of location’s CSE “shall develop an [IESP] for the student based on the student’s individual needs in the same manner and with the same contents as an [IEP].” Education Law § 3602-c(2)(b)(1). “The committee on special education shall assure that special education programs and services are made available to students with disabilities attending nonpublic schools located within the school district on an equitable basis, as compared to special education programs and services provided to other students with disabilities attending public or nonpublic schools located within the school district.” Id. See, e.g., Application of a Student with a Disability, Appeal No. 21-245 at pp. 10-18 (description of districts’ responsibilities under § 3602-c and interplay with IDEA); see also Application of a Student with a Disability, Office of State Review No. 20-094; Application of a Student with a Disability, Office of State Review No. 20-087. See also Bd. of Educ. of the Bayshore Union Free Sch. Dist. v. Thomas K., 14 N.Y. 3d 289 (2010) (relevance of individualized educational needs of dually-enrolled students).

Claims Relating to 12-Month School Year and Paraprofessional

When a CSE is developing an IEP or an IESP for a student, it must consider the most recent evaluations of the student as well as input at the IEP/IESP meeting from meeting participants, including the student’s parents, teachers and other individuals with relevant knowledge of the student. See, e.g., L.O. v. New York City Dep’t of Educ., 822 F.3d 95, 110 (2d Cir. 2016); 20 U.S.C. § 1414(c)(1)(A); 8 N.Y.C. R.R. § 200.4(d)(2); see also Education Law § 3602-c(2)(b)(1) (CSE “shall develop an [IESP] for the student based on the student’s individual needs in the same manner and with the same contents as an [IEP]”).

Parent argued that the CSE, when formulating REDACTED’s IESP, was not aware of the extent of REDACTED’s behaviors so it did not recommend a paraprofessional for REDACTED. Of course the CSE was not aware of the extent of the behaviors—(1) there was no input from REDACTED’s teachers or other school personnel at the meeting and (2) REDACTED’s parent and school did not provide school reports, report cards or any documentary information (such as “anecdotals”) about REDACTED’s functioning at school—despite CSE personnel inviting school personnel to the meeting and seeking such information from the school. See ⁋⁋ 16-18, 21, above. Furthermore, “just in case” is not a reason for the CSE to recommend a paraprofessional for a student, especially in light of REDACTED’s mother’s input that REDACTED’s “troublesome behaviors are less frequent and not as extreme as they had been in the past. In general, ‘he has come a long way.’” Ex. 4 at 7. See ⁋⁋ 18, 21, above.

The same is true of summer services. Without REDACTED’s teachers’ or school personnel’s input, and without documents and/or “anecdotals” from the school, the CSE did not have the necessary information to consider to determine whether REDACTED needed summer services. See ⁋⁋ 16-18, 21, above. Amongst the evaluative information available to the CSE, there was insufficient information upon which to base a “reasonably calculated” recommendation of a 12-month program for REDACTED. See R.E., 694 F.3d at 189-90. At the IEP meeting there was no evaluative material or input from anyone that REDACTED was a student who would experience “substantial regression” if he did not receive special education and related services during the summer months. See 8 N.Y.C. R.R. §§ 200.1(aaa) & (eee); 200.4(d)(2)(x). A post hoc, unsubstantiated and conclusory opinion from the agency’s Program Director at the hearing that REDACTED needed a 12-month program, was unavailable for consideration by the November 2020 CSE.

Furthermore, the DOE’s witness explained how the IESP addressed the REDACTED’s learning and behavioral needs, as known to the CSE at the time of the November 2020 meeting, by recommending SETSS and related services of speech, OT and counseling. See ⁋⁋ 25-28, above.

As a result, the CSE, by not including a paraprofessional and a 12-month program in the November 2020 IESP, did not deny REDACTED a FAPE. There is no basis, at this time, to order the provision of a paraprofessional or a 12-month program for REDACTED.

SETSS

The Department conceded that REDACTED was mandated for eight periods of SETSS for the time period from September 13, 2021 to November 16, 2021. Tr. 32-33. The Department objected to Parent’s request for SETSS for the period from November 17, 2021 through the remainder of the 2021-2022 school year because Parent had requested a public school placement. Tr. 33. So the question here is whether REDACTED is entitled to eight periods per week of SETSS for the remainder of the school year.

Despite the November 2021 IEP meeting and the CSE’s developing an IEP for REDACTED, REDACTED remained a “dually enrolled” student protected by Education Law § 3602-c(2)(b)(1). REDACTED’s parent did not accept the special education and services offered in the November 2021 IEP, and, instead continued with REDACTED’s attendance at the private religious school. And, in any event, the Department did not adduce evidence to defend this IEP. The assertions that the proposed public school placement did not have a REDACTED ICT class, and/or that the IEP states that the Department would have provided an alternative placement paraprofessional if a REDACTED ICT class was unavailable, are irrelevant and immaterial to this conclusion. Since REDACTED currently remains a student protected by Education Law § 3602-c(2)(b)(1), by virtue of his continued attendance at a private religious school, he is entitled to continuation of his SETSS services (as per the November 2020 IEP) at this time, to be delivered at the private religious school for the 10-month school year.

Since REDACTED is not a student for whom the CSE at the November 2020 IESP meeting should have recommended a 12-month school year, SETSS should be funded only for the 10-month school year.

Parent did not present evidence that REDACTED should be receiving nine periods, rather than eight periods, per week of SETSS. I deem the claim for the additional period (the ninth period of indirect services) as abandoned, and I dismiss it.

Compensatory Services

Parent refined her request for compensatory services to a request a bank of 40 hours of occupational therapy. Parent testified that REDACTED has not received occupational therapy during the 2021-2022 school year. Parent did not present any other evidence as to the 40 hour computation. Parent did not present evidence with respect to any other related services or seek, at the hearing, any other compensatory services. Since REDACTED is not a student for whom the CSE at the November 2020 IESP meeting should have recommended a 12-month school year, occupational therapy should be funded only for the 10-month school year.

As a result, I will exercise my equitable authority and order a Relates Services Authorization for occupational therapy for two 30 sessions of occupational therapy per week for the 10-month school year.

Therefore, for all the above reasons, it is ORDERED that:

1. The Department of Education shall fund REDACTED’s SETSS services (up to eight hours per week) provided by REDACTED REDACTED to REDACTED at REDACTED for the 2021-2022 10-month school year, for the time period from September 13, 2021 through June 27, 2022. The funding shall be reimbursement to REDACTED’s parents for any amounts they have paid to REDACTED REDACTED and direct payment to REDACTED REDACTED for any remaining balance.

2. The Department of Education shall pay a reasonable market rate as determined by the DOE’s Implementation Unit, for the aforementioned SETSS; and, in any event, that rate shall not exceed the average rate that the selected provider has charged for SETSS delivered to students in New York City during the 2021-2022 school year.

3 The Department of Education shall issue a Related Services Authorization for occupational therapy (two 30-minute sessions per week, 1:1) for REDACTED for the 2021-2022 10-month school year.

4. Claims for a 12-month school year and for a 1:1 paraprofessional are denied.

5. Claims for compensatory education and/or services, other than occupational therapy, are denied.

Dated: May 30, 2022

______________________________

JEAN MARIE BRESCIA, ESQ.

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the 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.

DOCUMENTATION ENTERED INTO THE RECORD

Department of Education Exhibits

1 IEP 11/27/2019 22 pages

2 Attendance 11/27/2019 1 page

3 Psychoeducational Evaluation 10/27/2019 6 pages

4 IESP 11/19/2020 20 pages

5 Educational – Private Evaluation 8/11/2020 14 pages

6 Events for REDACTED REDACTED 2021-2022 3 pages

Parents’ Exhibits

Letter

Date

Name of Document

Number of Pages

A

6/27/2021

DPC

5

B

6/21/2016

IEP

20

C

11/19/2020

IESP

17

D

11/3/2021

IEP

27

E

6/27/2021

TDN

3

F 5/4/2022 Affidavit of Parent 4

G 5/4/2022 Affidavit of REDACTED REDACTED 5

H Provider Credentials 3

I 7/6/2021 Contract with Cover Letter 3 Footnotes

[1] The June 21,2016 IEP is in evidence as Parent’s Ex. B.

[2] This document is the contract between REDACTED’s parent and the agency for provision of SETSS and a paraprofessional for the 2021-2022 school year. Parent’s Ex. I. The Department agreed to the admission of this document. Tr. 183-184.

[3] The DOE’s school psychologist, who participated in the IEP and IESP meetings for REDACTED, opined that SEIT is not an appropriate service for a school age child because it is a more developmental service, rather than a remedial service such as SETSS. Tr. 54. In any event, Parent, substituted SETSS for SEIT services. The DOE did not object. This substitution is of no import in this proceeding, and I give it none.