New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 555834 - NYC: 211876

FINDINGS OF FACT AND DECISION

Case Number: 211876

Student's Name: [STUDENT]

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Requested By: Parent

Date of Hearing: 09/08/2021 Pendency Hearing

09/17/2021 Pendency Hearing

10/07/2021 Hearing

11/12/2021 Status Conference

12/03/2021 Hearing

12/08/2021 Hearing

01/05/2022 Hearing

02/07/2022 Hearing

03/08/2022 Status Conference

04/06/2022 Hearing

05/09/2022 Hearing

06/01/2022 Hearing

06/22/2022 Hearing

06/30/2022 Hearing

Actual Record Close Date: 07/26/2022

Hearing Officer: Daniel Ajello Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON 09/08/2021

(All Parties Appeared Via Teleconference)

For the Student: [REDACTED], ESQ., Attorney

For the Department of Education: [REDACTED], District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON 09/17/2021

(All Parties Appeared Via Teleconference)

For the Student: [REDACTED], ESQ., Attorney

For the Department of Education: [REDACTED], District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON 10/07/2021

(All Parties Appeared Via Teleconference)

For the Student: [REDACTED], ESQ., Attorney

For the Department of Education: [REDACTED], District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON 11/12/2021

(All Parties Appeared Via Teleconference)

For the Student: [REDACTED], ESQ., Attorney

For the Department of Education: [REDACTED], District Representative

[REDACTED]District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON 12/03/2021

(All Parties Appeared Via Teleconference)

For the Student: [REDACTED], ESQ., Attorney

For the Department of Education: [REDACTED], District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON 12/08/2021

(All Parties Appeared Via Teleconference)

For the Student: [REDACTED], ESQ., Attorney

For the Department of Education: [REDACTED], District Representative

[REDACTED], School Psychologist

NAMES AND TITLES OF PERSONS WHO APPEARED ON 01/05/2022

(All Parties Appeared Via Teleconference)

For the Student: [REDACTED], ESQ., Attorney

For the Department of Education: [REDACTED], District Representative

[REDACTED], School Psychologist

NAMES AND TITLES OF PERSONS WHO APPEARED ON 02/07/2022

(All Parties Appeared Via Teleconference)

For the Student: [REDACTED], ESQ., Attorney

For the Department of Education: [REDACTED], District Representative

[REDACTED], IEP Teacher

NAMES AND TITLES OF PERSONS WHO APPEARED ON 03/08/2022

(All Parties Appeared Via Teleconference)

For the Student: [REDACTED], ESQ., Attorney

For the Department of Education: [REDACTED], District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON 04/06/2022

(All Parties Appeared Via Teleconference)

For the Student: [REDACTED], ESQ., Attorney

For the Department of Education: [REDACTED], District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON 05/09/2022

(All Parties Appeared Via Teleconference)

For the Student: [REDACTED], ESQ., Attorney

[REDACTED], Speech Therapist

For the Department of Education: [REDACTED], District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON 06/01/2022

(All Parties Appeared Via Teleconference)

For the Student: [REDACTED], ESQ., Attorney

For the Department of Education: [REDACTED], District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON 06/22/2022

(All Parties Appeared Via Teleconference)

For the Student: [REDACTED], ESQ., Attorney

[REDACTED]., Parent

[REDACTED], PSY.D.,

Director, [REDACTED]

For the Department of Education: [REDACTED], District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON 06/30/2022

(All Parties Appeared Via Teleconference)

For the Student: [REDACTED], ESQ., Attorney

[REDACTED], Occupational Therapist

For the Department of Education: [REDACTED], District Representative

DOCUMENTS ENTERED INTO THE RECORD

PARENT DOCUMENTS

Entered 09/17/2021

• • Impartial hearing request, 8/25/21, nine pages
• • CPSE IEP, 9/4/20, 19 pages

Entered 05/09/2022

• • Hearing Officer’s Pendency Order, 09/17/2021, 7 pages
• • Hearing Officer’s Interim Order, 10/7/2021, 10 pages
• • Independent Speech Language Evaluation, 2/9/2022, 17 pages
• • Independent Occupational Therapy Evaluation, 3/13/2022, 18 pages
• • Private School Enrollment Contracts, Various, 3 pages - WITHDRAWN 06/22/2022
• • Final Notice of Recommendation (FNR), 9/4/2020, 1 page
• • [REDACTED] SEIT Quarterly Progress Report, 11/15/2020, 11/24/2020, 4 pages
• • Early Intervention Occupational Therapy Summary, Undated, 1 page
• • Early Intervention Speech Language Therapy Progress Report, 6/5/2019, 1 page
• • Early Intervention Special Instruction Progress Report, 6/4/2019, 1 page
• • Affidavit of [REDACTED], M.S., C.C.C.-S.L.P. 5/7/2022 20 pages

Entered 06/22/2022

• • Independent Neuropsychological Evaluation Report, 1/24, 1/31, 2/2, 2/7, 5/23/22, 18 pages Identified / Entered 07/26/2022
• • Independent Occupational Therapy Evaluation Updated, 6/9/22, 19 pages

Entered 06/30/2022

• • Affidavit of [REDACTED], 06/30/22, 11 pages

DEPARTMENT OF EDUCATION

Entered 10/07/2021

Exhibit Date Name of Document Pages

• • 2/25/2019 Consent for Testing 1
• • 2/25/2019 Social History 2
• • 2/25/2019 Psychological Evaluation 5
• • 2/28/2019 Educational Evaluation 5
• • 2/26/2019 Physical Therapy Evaluation 4
• • 3/8/2019 Occupational Therapy Evaluation 3
• • 2/22/2021 Prior Written Notice
• • (Notice of Recommendation) 3
• • 3/2/2021 Consent for Additional Assessments 1
• • 3/1/2021 Social History Update 2
• • 5/2/2021 Psychoeducational Evaluation 5
• • 5/24/2021 IEP 20

Entered 12/03/2021

• • 2/28/2019 Speech and Language Therapy Evaluation 4
• • 8/16/2019 Pre-School IEP 18
• • 8/30/2019 Partial Service Notice 1
• • 9/4/2020 Pre-School IEP 18
• • Various Dates Pre-School Related Service Progress Reports 5
• • 2/1/2021 SEIT Progress Report 4
• • 5/25/2021 Prior Written Notice
• • (Notice of Recommendation) 4
• • 6/15/2021 School Location Letter 5
• • Various Dates SEIT Attendance Records 4

Entered 02/07/2022

• • Various Dates Agency-related service attendance records 22
• • Various Dates SESIS-related service attendance records 15
• • 02/07/2022 Affidavit 2

HEARING OFFICER DOCUMENTS

Entered 09/08/2021

• • Notice of appointment, 08/31/2021, 3 pages

Entered 10/07/2021

• • Pendency Order, 09/17/2021, 7 pages

Entered 11/12/2021

• • Interim Order Evaluations, 10/07/2021, 10 pages

Entered 07/25/2022

• • Parent Closing Brief, 07/25/2022, 16 pages

INTRODUCTION

On 08/31/2021, I was appointed the Impartial Hearing Officer (“IHO”) by the Department of Education’s Impartial Hearing Office to conduct an impartial hearing pursuant to the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f) and Article 89 of the Education Law of the State of New York.

This matter was initiated via DPC, dated 08/25/2021. (Ex A)

Parent alleges a failure, by the DOE, to offer the Student a free appropriate public education (“FAPE”) to the Student; (b) thoroughly and appropriately evaluate the Student on a timely basis; (c) create legally appropriate IEP(s) and placement(s); and (d) follow the procedural requirements of the IDEA. Allegations relate to the 2019-2020, 2020-2021 and 2021-2022 School Years. (Ex A 2)

Parent seeks a variety of forms of relief. Some relief was addressed via Pendency Order and Interim Order regarding Evaluations. (IHO Ex II & III)

Parent Attorney withdrew relief sought of District funding for private school tuition and transportation expenses. (T 331-332)

Remaining, sought after relief, includes:

a. A declaratory judgment in favor of the Parents that (i) the DOE has violated the laws as alleged herein; (ii) the DOE failed to provide the Student with a FAPE during the SYs at Issue; (iii) the DOE denied the Student an appropriate evaluations and reevaluations; (iv) the DOE subjected the Student to blanket policies and predetermination, and (v) the DOE discriminated against the Student based upon his disability; d. The DOE shall fund (or at the Parents’ election, provide) compensatory education for the denial of FAPE to restore the Student to the position that the Student would have been in had FAPE not been denied, as well as for any failure to implement pendency services and/or IEP mandated services. Appropriate compensatory education should and/or may include a bank of 1:1 instruction; additional SEIT; executive functioning support, tutoring, behavior therapy, services to improve executive functioning, AT, AT training, services to address anxiety, [REDACTED] services, related services (such as occupational therapy, physical therapy, speech therapy, counseling, social skills training) as well as any other services recommended as a result of independent evaluations. If the student has a diagnosis that warrants it, the DOE should fund 1:1 instruction with a research-based strategy, such as Applied Behavior Analysis (Ex A 14); e. The DOE should fund an increase in 1:1 instruction and related services, as well as home-based services; g. Any services ordered should be delivered by providers of the Parents’ choice for “enhanced market rates” that are necessary to ensure that the Student works with appropriate providers and consistent with the rates paid by the DOE’s Impartial Hearing Implementation Unit to the providers pursuant to hearing orders;

. i. A legally valid IEP prepared in accordance with the IDEA and New York State Education law and the IDEA and which contains, at a minimum, the Student’s pendency services, as well as additional 1:1 instruction, ABA, PROMPT, SEIT, SLT services, OT services, PT services, counseling, 12-month ESY, behavioral support and home-based services; j. All other relief that is appropriate as of the time that the IHO is ready to issue a final order, but which may not have been known to the Parents as of the time this hearing was filed. As the Student has not been appropriately and thoroughly evaluated, and has not received appropriate services, it is not possible to identify every potential remedy that may be warranted to place the Student in the position he would be in, had he not been subjected to the deprivations described herein.

(Ex A 15)

On 09/08/2021 and 09/17/2021, a Pendency Hearing was held, and Pendency Order was issued, on 09/17/2021, which established Pendency as:

• • Special Education Itinerant Teacher Services (SEIT) 15x60, up to a group of 2;
• • Speech and language therapy, 3 times per week for 30-minute sessions, 1:1;
• • Occupational therapy, two times per week for 30-minute sessions, 1:1;
• • Physical therapy, two time per week for 30-minute sessions, 1:1; and
• • A 12-month program for all services. (Ex IHO II 6)

Hearing was set to commence on 10/07/2021, to address request for Independent Educational Evaluations (IEEs).

Interim Order was issued on 10/07/2021, directing:

DOE shall immediately authorize funding for the following Independent Educational Evaluations, at reasonable market rate:

• • Speech and Language (SLT) evaluation;
• • Neuropsychological evaluation; and
• • Occupational therapy (OT) evaluation.

(IHO Ex III 10)

For the 21-22 school year the Student is repeating Pre-School, though of Kindergarten age, as directed by the Parent (T 65 & 117)

Status Conference was held on 11/12/2021.

The IHO was advised that the SLT and OT evaluations were underway, and should be done within the next month or so. (T 90)

The Neuropsychological Evaluation was delayed due to Covid-19 restrictions which hampered its scheduling. (T 90)

The DOE Representative advised that it would likely be defending against the allegations of the DPC. (T 91, Ex A)

The DOE did offer a defense to the allegations contained in the DPC, as indicated below.

Parent was able, over time, to assemble, and submit into evidence a variety of Student evaluations and reports, as reviewed below.

THE POSITION OF EACH PARTY

At Hearing, of 12/03/2021, the DOE sought adjournment, due to Witness recently retiring, and is not available due to then current DOE employment, of two days weekly. (T 18)

Regarding the Student repeating Pre-K, the DOE Representative notes: “…the children can repeat pre-K or another year if the parents will still hold the children back. However, children in the Department of Education still move on to kindergarten. And they will still be meeting with the kindergarten team to develop a kindergarten IEP. Parents can keep their children back, but that is really their choice.” (T 120)

With the above in mind the DOE drafted an IEP intending the Student to move on to Kindergarten. (T 121, Ex 11)

Parent Attorney notes the Parent position that the Parent and Student Educators, at the time, determined it would be best for him to remain in Pre-K. (T 121)

Hearing continued to allow for DOE Witness Testimony, on 12/08/2022 The Representative set for the DOE position: “It is the Department of Education's position that [STUDENT] was offered a free and appropriate public education for the '19/'20, '20/'21, and '21/'22 school years.” (T 137)

The DOE contends it has created an appropriate IEP for each school year. (T 137-139)

The DOE sought to establish a FAPE was offered the Student by presenting a Witness, whose Testimony is outlined below, which related to the IEP drafted for the 21-22 school year.

Witness [REDACTED], School Psychologist

Testimony included the below:

• • Employment and qualifications (T 144-145);
• • Familiarity with Student through the Turning-5 process, and related IEP meeting, of 05/24/2021 (T 146, Ex 11);
• • Reports were reviewed and Student was making progress (T 148);
• • Student progress was discussed, and Parent shared concerns at the meeting (T148-150);
• • Recommendation was made to a 12:1:1 class with related services (T 150);
• • Recommendation was made despite progress since Student was still disabled and needed more support than Integrated Co-Teaching (ICT) class would provide (T 150-151);
• • SETSS with related services was not supportive enough for the Student (T 151);
• • Goals were derived from Teacher Reports (T 152);
• • Student was not recommended to a 12 month school year (T 152);
• • At the time of the 05/24/2021 IEP meeting, the Witness was aware that the Student was receiving 15 weekly hours of Special Education Itinerant Teacher Services (T 159, Ex 11-3); and
• • Witness did not know the class size of the Student, at the time of the IEP meeting, though she believes it was a general education class. (T 159)

The IHO asked the Witness what support would replace the SEIT services as the Student moved into a new program and placement. Witness responded:

“Well, the SEIT service is something that is provided to children in pre-K. It is not a service that we -- kindergarten children have different expectations…It's more curriculum-based, and the children are expected to be more independent in kindergarten, but for [Student], his needs, we thought a small class with 12 children and a paraprofessional for the class would be a good place for him to start” (T 160)

The Witness believes the Student does not need the closes one-on-one supervision, despite the recommendation by the SEIT Report (Ex 17-2 & 11-2), but can function in a 12:1:1 placement. (T 162)

The Witness was asked for the basis of her belief that the close one-on-one support was not necessary. Witness points to general expectations of the Student upon entering Kindergarten, in a 12:1:1 class setting. (T 164-165);

• • Witness was referred to the IEP, which includes: Student “receives one-to-one support throughout the day with a SEIT in the afternoons, and a private aide in the mornings” (T 163, Ex 11-2);
• • Witness did not know how much support the Student received from the aid, and did not know the size of the Student’s class (T 164);
• • The IHO asked the Witness what information was on hand that supported the Student did not need the 1:1 support. The Witness stated: “The expectations, like I said, in kindergarten is to be more independent.” (T 164)

Despite the Student specific information sought as justification for the IEP team’s recommendation, the Witness was unaware of the level of support the Student was receiving at the time of the IEP meeting, and made only a general reference to independence as justification for the IEP recommendations.

Witness later Testified that she was aware the Student was receiving 15 weekly hours of SEIT service and believed it was no longer necessary, basing it upon the fact that pre-school is different from kindergarten, with different expectations of independence. (T 229-230)

The Witness continued, referring to the 12:1+1 class IEP recommendation (Ex 11-12)

“So that's a ratio of six children and an adult, and if in a class they see that a child needs more support, then they can always do appropriate assessments at that time to see that this was an appropriate place for a child with his level of skills for [Student] to be able to function in kindergarten.” (T 166)

The Witness continued that at the IEP meeting “everyone agreed”, though the Parent was still looking into possibility of a private school. (T 167)

Despite the Witness Testimony, the Parent raised her concerns, and preference, for the Student to be educated in a mainstream environment, noting she believed it was better “for long term outcomes”. (Ex 11-19)

The evidence does not support agreement at the IEP meeting.

As detailed below, the IEP also has several areas of insufficiency, so that even if agreed upon, it was not able to offer the Student a FAPE. (Ex 11)

Witness does indicate that the Parent was open to considering what the DOE would offer the Student. (T 172-173)

At the time of the IEP meeting the Student was in nursery school. (T 18)

Witness would not consider 12 month services, and indicated that would be considered, if needed, during the school year. (T 182-183)

Witness provided Testimony regarding goals contained in the IEP, of 05/24/2021. Essentially noting that to answer any specific questions reference would be made to the IEP or other document. (T 216-221, Ex 11)

Ultimately, the Witness did not know the source of any of the goals contained in the IEP. (T 223)

Witness does state the goals are appropriate and were discussed at the IEP meeting, and everybody thought the goals were appropriate. (T 225-226)

Witness also stated that the goals are for a kindergarten student, not necessarily one functioning ate a kindergarten level. (T 232-233)

The IHO noted that the goals may be for a kindergarten student, but the IEP includes the Student is to be instruction at a pre-kindergarten level. (T 233-234, Ex 11-17)

Witness [REDACTED], IEP Teacher

Witness provided Testimony via Affidavit, considered below. (T 23)

Parent presented its case via Testimony and Documentary Evidence reviewed below.

Witness [REDACTED], Speech Therapist

Witness completed Speech Evaluation (Ex M), and provided Testimony that includes:

• • Witness Evaluation recommends compensatory service in the amount of 276 hours, calculated using: “a qualitative approach. I reviewed all of the available records that I believe are listed in my affidavit and are definitely listed in my report, just so that I could get an idea of the services that he was receiving in the past but also the amount of progress that he made over time. And then I administered my evaluation to see his current level of functioning. Excuse me…And using a qualitative approach, that's how I was able to come up with my recommendation on how much time I think he would need to make up for the gains that he hadn't made and for the -- for the gains that he hasn't made in the past and in order to make adequate gains in speech and language for now. So that's how I came up with that number.” (T 310)

Witness Parent

Student’s Parent provided Testimony that included:

• • Student was born with [REDACTED] (T 338);
• • For the 19-20 school year Student received special education services via an IEP, including 15 hours of SEIT, OT and PT (T 339);
• • During the Covid lockdown, March 2020 through June 2020, the Student received some remote instruction, which was difficult, and was without the SEIT (T 339-340);
• • Student was not able to engage in general remote instruction (T 341);
• • Related service of PT was not obtained during lockdown, OT sessions were presented, but only lasted five or ten minutes (T 342-343); and
• • Regarding SEIT: “basically, she read him stories while he ate lunch, which was very nice for my wife to have a break, but certainly wasn't such great instruction, but obviously it was appreciated…I don't know how much he gained from being read stories, although, there is some value in that. So I don't want to discount that. I don't believe that he had any other related services, but I could be wrong.” (T 343)

Witness [REDACTED], PSY.D., Director, [REDACTED]

Witness competed evaluation (Ex N) and provided Testimony that included:

• • A review of the Student testing conditions, which included a classroom observation (T 358-359);
• • Push in SEIT instruction was recommended, rather than a specialized setting or school: Student has social strengths and requires a classroom where he can model appropriate peer interactions from neurotypical peers; “I do believe that [STUDENT] does require one-to-one SEIT support, really throughout the entirety of the school day. He has very significant impulsivity.

He needs a lot of redirection to the task at hand. He needs modeling, repetition, explicit direct instruction, and a lot of positive behavioral reinforcement to make sure that his behavior and his safety are appropriately met throughout the school day” (T 360-361);

• • Summer services are needed to prevent regression so that he can close the “gap with other children” (T 361-362);
• • Summer services could be provided in the home or at an agency where Student can receive services (T 362);
• • Compensatory services are recommended:
• • Physical Therapy: Student has significant gross motor delays which need ongoing support, and service beyond the 3x30 session he already receives (T 363); Student also did not receive services during Covid when the Student had difficulty engaging remote services (T 363-364);
• • Speech Language Therapy as recommended by therapist (T 364);
• • Occupational Therapy as recommended by therapist (T 364); and
• • Instructional Services 1:1: in the amount of 1,860 hours: related to the three school years at issue and the missed services during the Covid lockdown (T 364): Student should have been receiving one on one instruction 30 hours weekly, and he was not, resulting in gaps in overall functioning: (T 364-365);

From the test data you can see that in addition to his language difficulties, motor difficulties, cognitive difficulties, that academically he's still about two years delayed, if not a bit more. About two, two and a half years when it comes to basic academic skills at this point…So he does require, again, that ongoing 30 hours per week…to ensure his overall functioning, and to make sure that he's able to get the support that he needs. And he also does require compensatory services to be able to close the gap with his peers. And what we know is that kids with downs, they do have the capability to learn. They have the capacity to make academic progress. In fact, over time, we do see that some of their -- with early intervention, with a lot of support that they can catch up to their peers in many different ways. And so, at this point, [STUDENT] really needs heavy doses of that special education support in order to get him to where he needs to be.” (T 365);

• • Parent Counseling and Training: 138 hours related to Student’s ADHD diagnoses, and functional needs, which should have been provided already (T 366-367);
• • Witness recommends evaluation:
• • Functional Behavior Assessment (FBA) with Behavior Intervention Plan (BIP), via a professional with ABA training (T 368-369)
• • Compensatory services are anticipated to be delivered with unlimited access over time, working with the school schedule and afterschool schedule, of the Student (T 366-367);
• • Witness recounted how remote observation of the Student was conducted (T 370-371); and
• • Witness notes that the program he observed was not discrepant from any other pre-school program. (T 377)

The Department of Education presented a variety of documents seeking to support an offer of FAPE, in response to the DPC. (Ex A)

DOE Evidentiary Documents are considered below:

1 2/25/2019 Consent for Testing

Parent cooperates with DOE consenting to Student Evaluation.

2 2/25/2019 Social History

Student, at the time, was [REDACTED] years of age. Parent advises the District of concerns and seeks Committee on Preschool Special Education (CPSE) intervention. (Ex 2-1)

3 2/25/2019 Psychological Evaluation

Evaluation confirms Student areas of delay in Cognitive, Communication, Social Emotional Functioning, Communication and Motor Functioning. (Ex 3-2 through 3-4)

Diagnosis noted of [REDACTED] (Ex 3-1)

Further evaluations are recommended: Speech Language; Occupational Therapy; Education; and Physical Therapy

4 2/28/2019 Educational Evaluation

Confirms [REDACTED] Diagnoses and need for special education services, noting concerns in all areas of development. (Ex 4-1 & 4-5)

12 2/28/2019 Speech and Language Therapy Evaluation

Evaluation notes areas of severe Student delay.

5 2/26/2019 Physical Therapy Evaluation

Recommends intense physical therapy to address Student delay.

6 3/8/2019 Occupational Therapy Evaluation

Details Student areas of delay and recommends OT services.

13 8/16/2019 Pre-School IEP

Classified Preschool Student with a Disability (Ex 13-2);

Recommends a Special Class 8:1; and related services of Speech Language Therapy (SLT) 3x30x1; Occupational Therapy (OT) 2x30x1; and Physical Therapy (PT) 2x30x1 (Ex 13-1);

Recommends a 12 month school year. (Ex 13-1)

14 8/30/2019 Partial Service Notice

Confirms IEP services.

15 9/4/2020 Pre-School IEP

Classified Preschool Student with a Disability (Ex 15-1);

Recommends SEIT for 15 weekly hours, in a group of two; and related services of Speech Language Therapy (SLT) 3x30x1; Occupational Therapy (OT) 2x30x1; and Physical Therapy (PT) 2x30x1 (Ex 15-1 & 15-15);

Recommends a 12 month school year (Ex 15-1)

7 2/22/2021 Prior Written Notice (Notice of Recommendation)

Notifies that Parent of the need for additional evaluations.

8 3/2/2021 Consent for Additional Assessments

Parent again consents to DOE evaluations.

9 3/1/2021 Social History Update

Parent advises the Student is enrolled in a religious school, which is of “paramount importance to the family”. (Ex 9-1)

The Parent also notes this is: “…the result of advice they received on the benefits of mainstream versus a special education school. Mother shared that they were told by a specialist that since children with [REDACTED] tend to copy behaviors, the provision of exposure to general education peers is better for long term outcomes.” (Ex 9-1)

At this time the Student was [REDACTED] years of age. (Ex 9-)

10 5/2/2021 Psychoeducational Evaluation

Evaluation notes areas of delay and concludes:

• • Student is a [REDACTED] year old male with [REDACTED];
• • Evaluation was limited due to it being conducted via Telehealth;
• • Extremely low verbal and nonverbal development;
• • Educational Assessment yielded Extremely low scores, except for word reading (letter recognition)
• • No behavioral or emotional problems are reported;
• • Testing shows low ADL skills in all areas. (Ex 10-5)

11 5/24/2021 IEP

Includes:

• • Classification of Intellectual Disability;
• • Notes the Student attends a mainstream religious school, repeating nursery school;
• • Diagnosed with [REDACTED] (Ex 11-1);
• • Student receives 1:1 support throughout the day via a SEIT in the afternoons and a private aide in the mornings;
• • Student has acquired some readiness skills;
• • Significant language delays (Ex 11-2);
• • Parent notes progress and desire for mainstream setting, seeking to continue SEIT support (Ex 11-3);
• • Behavior is often self directed and has become defiant;
• • Student will behave in an impulsive manner;
• • Student may throw things;
• • Student can become easily frustrated;
• • Student’s social needs require additional support (Ex 11-4);
• • Student is noted not to need positive behavioral intervention, supports and other strategies to address behaviors that impede the Student’s learning or that of others (Ex 11-6)
• • Goals are included, intended presumably to address various areas of Student delay (Ex 11-8 to 11-11);
• • Student is recommended to a Special Class 12:1+1, and OT, PT and Speech Language Related Services (Ex 11-12 & 11-13);
• • Student is not recommended to a 12 month school year (Ex 11-13); and
• • Instructional Functional Levels are set at Pre-Kindergarten Level for Reading and Math (Ex 11-17)

Regarding Student goals, the Witness did not know the source of any of the goals contained in the IEP. (T 223)

Though the Witness states the goals are appropriate and were discussed at the IEP meeting, and everybody thought the goals were appropriate. (T 225-226)

The Witness however also states that the goals are for a kindergarten student, not necessarily one functioning ate a kindergarten level. (T 232-233)

This Student is noted to be instructed at a pre-kindergarten level. Based on the Witness Testimony the goals do not match the specific needs of the Student who is not yet functioning at a kindergarten level. (T 233-234, Ex 11-17)

Goals themselves are generally vague and immeasurable.

For example:

Student will “increase his knowledge of uppercase and lower case letters, recognize that letters are grouped to form words and demonstrate an awareness of the relationship between sounds and letters.” (Ex 11-8)

Criteria: 4 out of 5 occasions with 80% accuracy. (Ex 11-8)

No baseline of where Student will increase knowledge from is established.

The goals crowbar several areas of potential Student need into one goal which ends up being undecipherable. The goal attempts to address lower and upper case letters, grouping of letters to form words, and relationship of sounds and letters into one goal. The result is an immeasurable and unfocused goal.

The IEP also notes areas of Student behavior which impact his learning. (Ex 11-4 & 11-6)

The IEP however, fails to develop a BIP or other intervention to address the behaviors, which are an obvious area of Student need. (Ex 11-6)

Witness Testimony does not offer any specifics to address Student needs as brought out within the IEP.

Witness states that she was aware that the Student was receiving 15 weekly hours of Special Education Itinerant Teacher Services. (T 159, Ex 11-3)

Witness was not aware of the Student’s class size of the Student, at the time of the IEP meeting, though she believes it was a general education class. (T 159)

Witness changes the Student class without knowledge of the Student’s then current program. (T 159 & 164)

Witness states that SEIT “is provided to children in pre-K. It is not a service that we -- kindergarten children have different expectations…It's more curriculum-based, and the children are expected to be more independent in kindergarten, but for [Student], his needs, we thought a small class with 12 children and a paraprofessional for the class would be a good place for him to start” (T 160)

Witness generalizes the goal for student independence in kindergarten without addressing the Student’s unique needs as evidenced within the IEP. This includes the level of individual support and the need for behavior interventions. (T 164-165)

Witness also Testified that she was aware the Student was receiving 15 weekly hours of SEIT service and believed it was no longer necessary, basing it upon the fact that pre-school is different from kindergarten, with different expectations of independence. (T 29-230)

This again is not a reasonable basis upon which to alter Student services as it is not based upon any evaluative data, nor is it based upon the Student’s individual needs.

Ultimately, the IEP is not evidenced to be capable of offering the Student a FAPE.

16 Various Dates Pre-School Related Service Progress Reports

Private school progress reports refer to a Student nursery school year noting:

• • Speech Language delays with recommendation for services (Ex 16-1 & 16-2);
• • Motor delays and need for Occupational Therapy (Ex 16-3 & 16-4); and need for 12 month services to prevent regression. (Ex 16-4 & 16-5)

17 2/1/2021 SEIT Progress Report

This Report is referred to throughout the IEP, of 05/24/2021.

Report includes:

• • Review of Student class and services: class of 16 students, one teacher, and two assistants; Speech Therapy (3x30); Physical Therapy (2x30) and Occupational Therapy (2x30);
• • Student is noted to enjoy going to school, and, with the one-on-one assistance, is able to participate as an integral part of the group;
• • Student has learned the daily routine and transitions from one activity to the next, participating to the best of his abilities;
• • Student knows the names of all the teachers and boys in the class, greets them by name, and has brief positive interactions with his peers throughout the day;
• • Student is noted to have made progress in most areas this school year (Ex 17-1);
• • Supports noted in Areas of:
• • Cognitive Development (Ex 17-1);
• • Language Development;
• • Motor Skills (Ex 17-2);
• • Social and Emotional Development, including behaviors affecting his education (Ex 17-3); and
• • Self Help (Ex 17-3 & 17-4)

18 5/25/2021 Prior Written Notice (Notice of Recommendation)

Confirms recommended Student services.

19 6/15/2021 School Location Letter

Provides school location.

20 Various Dates SEIT Attendance Records

SEIT attendance records for the 19-20 and 20-21 school years, including summer (Ex 20-1 through 20-4)

21 Various Dates Agency-related service attendance records

OT attendance records for 2020-2021 reflecting a lack of delivery of all mandated services. (Ex 20-5 through 20-11)

No evidence was presented that any of the sessions actually addressed Student needs.

No evidence is presented that Student benefitted from any of the session, or made progress towards an appropriate goal.

Speech Language attendance records for 2020-2021 reflecting a lack of delivery of all mandated services. (Ex 20-12 through 20-22)

No evidence was presented that any of the sessions actually addressed Student needs.

No evidence is presented that Student benefitted from any of the session, or made progress towards an appropriate goal.

22 Various Dates SESIS-related service attendance records

Additional records reflecting related service dates for the Student.

No evidence was presented that any of the sessions actually addressed Student needs.

No evidence is presented that Student benefitted from any of the session, or made progress towards an appropriate goal.

23 02/07/2022 Affidavit

Affidavit indicates the Student’s DOE placement would have implemented the IEP drafted for the 21-22 school year.

I note that the IEP has already been found to be unable to offer the Student a FAPE.

Parent Documentary Evidence submitted by the Parent is found to be credible and supports the Parent allegations to the extent indicated below.

A Impartial hearing request, 8/25/21

Details Student educational history, allegations, and sought after relief.

B CPSE IEP, 9/4/20

Duplicate of Exhibit 15.

E Independent Speech Language Evaluation, 2/9/2022

Details Student Speech Language needs noting:

• • The Student “displays significant characteristics indicative of a language disorder that currently have and will continue to have a negative impact on his ability to access and understand the school curriculum;
• • Delays are clinical causes for concern;
• • Speech and language services are necessary to support student’s progress;
• • .Student’s prior speech-language mandate of 2x30:1 and 1x30:3 was insufficient for him to make meaningful progress;
• • If this mandate remains the same, Student will likely continue to fall behind or remain at his current communicative level without making meaningful progress, therefore widening the gap between his current level of functioning and the skills that are age-appropriate;
• • Recommendations include:
• • Speech-language therapy services to be provided in an area separate from the classroom 3x/week individually for 30 minutes per session and 2x/week in a group of up to 3 students for 30 minutes per session. Individual therapy sessions will allow for individualized therapeutic intervention to address his deficits. Group therapy sessions will allow for Student to generalize the skills he acquires in individual therapy sessions into a small group session as well as target his deficits with pragmatic (social) skills. Services should be provided on a 12-month basis to prevent regression (Ex E-15);
• • Compensatory services:
• • A bank of 276 speech and language hours (providing [STUDENT] with approximately 2 hours a week for 46 weeks, for approximately 3 years) (Ex E 15);
• • These hours will give Student consistent access to therapeutic intervention that will address his significant deficits. Providing these services will allow Student to have the opportunity to address his specific needs in a consistent manner;
• • Student needs therapy to establish the foundational language skills he needs.;
• • Prior therapy mandates have not been sufficient enough for him to make meaningful progress;
• • Recommended amount was derived from a qualitative clinical approach, considering Student’s current needs and the time he will need to "catch up" to make him whole given the insufficient mandates he has received in the past;
• • Without a robust clinical program, his current gaps will continue to widen. It is recommended that these hours shall not have an expiration date, to allow access to them over time. (Ex E 16)

F Independent Occupational Therapy Evaluation, 3/13/2022

Details Student’s Occupational Therapy needs, noting:

• • Extremely significant delays are present in several areas of vestibular and bilateral integration dysfunction, proximal strength and stability, inner core strength, ocular motor skills, fine motor and graphomotor skills, intrinsic hand strength, visual-motor integration skills, visual perceptual skills, activities of daily living skills and instrumental activities of daily living skills have negatively impacted Student’s ability to participate in his current academic curriculum;
• • Student needs constant use of visual support, guidance, verbal redirection, the use of a multi-sensory curriculum for learning and a systematic fading of prompts to develop the skills he is lacking;
• • It is imperative for Student to receive occupational therapy services 3 times a week individually for 45 minutes a session within school due to these significant delays and safety concerns (e.g. tantruming);
• • The absence of appropriate clinical intervention in Student’s current and prior programming have not met his needs and have not allowed him to further develop the aforementioned occupational therapy skills needed to be successful and independent in school, at home and within his community;
• • If Student continues with inappropriate clinical intervention the gaps will continue to widen between him and his same aged-peers (Ex F 14);
• • Recommendations include:
• • Compensatory occupational therapy services to make up for the lack of appropriate services previously given to address his deficit areas and safety concerns within the home (i.e. using the bathroom independently) and school environment (i.e. tantruming behaviors) (Ex F 14 & 15)
• • Without adequate intervention within occupational therapy services the gap between Student’s abilities and those of his same-aged peers will continue to widen within both his academic and occupational therapy progress towards his goals (Ex F 15);
• • 12 month OT services to prevent regression (Ex F 15)

I [REDACTED] SEIT Quarterly Progress Report, 11/15/2020, 11/24/2020 The 20-21 school year report confirms Student need for special education services and details academic goals.

J Early Intervention Occupational Therapy Summary

Confirms Student need for OT services, back when Student was 2.5 years of age.

K Early Intervention Speech Language Therapy Progress Report, 6/5/2019

Confirms Student need for speech language services.

L Early Intervention Special Instruction Progress Report, 6/4/2019

Confirms Student need for special education services, noting the need for supports which include 1:1 support.

M Affidavit of [REDACTED], M.S., C.C.C.-S.L.P. 5/7/2022

Speech Therapist details her qualifications (Ex M 1-2); familiarity with the Student (Ex M 2); confirms producing report (T 3, Ex E); and details evaluations conducted (Ex M 3-4).

Student evaluation results, challenges and areas of delay are detailed. (Ex M 5-17)

Recommendations include:

• • Speech Language Services, noting the previous and current recommendation are not sufficient (Ex M 18);
• • Speech Language Services should be mandated at five times weekly, as 3x30, 1:1 and 2x30, 3:1 (Ex M 18);
• • 12 month services to prevent regression (Ex M 18); and
• • Compensatory services of 276 hours (2 per week for three 46 week school years) to address significant delays, and in consideration of Student’s current needs and time needed to “catch up” to make Student whole given the insufficient mandates received in the past (Ex M 19)

N Independent Neuropsychological Evaluation Report, 1/24, 1/31, 2/2, 2/7, 5/23/22

Student is described, noting areas of delay and need for support:

“[REDACTED]-year, [REDACTED]-month-old boy with [REDACTED]. He was referred for a comprehensive neuropsychological and educational evaluation by his parents…A happy, loving child, chief concerns were raised around by his parents around his attentional and behavioral regulation. While [Student] is verbal, he still has difficulty communicating at an age-appropriate level. He can follow directions, though it is impacted by his willingness to do so. He is still working on learning skills, compliance, and engagement in play. [Student] continues to require support for sitting and attending and keeping himself safe. His parents also sought appropriate educational and treatment recommendations.” (Ex N 1)

Diagnostically, Student is described as having a: “…constellation of unique pattern of strengths and weaknesses, including deficits in cognitive and adaptive functioning, is consistent with Intellectual Developmental Disorder, Moderate (F71). [REDACTED] is the most common genetic etiology of intellectual disability, affecting approximately 1 in every 700 children. Children with [REDACTED] can learn and make progress but require much greater supports to do so compared to their nondisabled peers.” (Ex N 11)

Recommendations include:

• • 12 month services;
• • Continued placement in a mainstream setting;
• • Placement in a 12:2 setting would be inappropriate;
• • Continued 1:1 SEIT support for 30 hours weekly, to continue to promote all areas of development, and to provide consistent modeling, repetition, explicit and direct instruction, reinforcement, and behavioral programming for managing his behavior and to maintain his safety throughout the entirety of the school-day;
• • Continued speech-language therapy, no less than given five times weekly for 30 minutes (5x30), given severe delays in receptive and expressive language and language processing;
• • Continued occupational therapy, no less than three times weekly for 45 minutes (3x45), given significant delays in daily living skills, self-regulation, and fine motor Functioning;
• • Continued physical therapy services, no less than three times weekly for 30 minutes (3x30), given significant delays in gross motor functioning. Compensatory PT is warranted from March 2020 through August 2020;
• • Compensatory education during the period of remote instruction from March 2020-August 2020, as he could not engage remotely in any type of meaningful instruction with SEIT or school due to the virtual nature of the services provided;
• • Agreement with the bank of compensatory hours recommended in his most recent SLP and OT evaluations;
• • Parents require a compensatory bank of 138 hours of parent training and counseling using an evidence-based Behavioral Parent Training (BPT) program (Ex N 12);
• • Compensatory education hours for 1:1 special education instruction. He requires a compensatory education award of 15 hours weekly for all three school years when school was open at issue (15 hours x 32 weeks x 3 years = 1440 hours), plus 30 hours weekly when school was closed and he could not engage in remote instruction, from mid-March 2020 through June 2020 (30 hours x 14 weeks = 420 hours). In total, this amounts to a compensatory award of 1860 hours total of 1:1 special education instruction (Ex N 12-13);
• • Student requires a Functional Behavior Assessment (FBA) and Behavior Intervention Plan (BIP) conducted by a professional with ABA training. The goal of an FBA and BIP is to promote an increase in desired classroom behaviors. There should be frequent opportunities to engage in these specific targeted behaviors throughout the school day; and

- Student continues to require behavioral support in the classroom, characterized by active use of labeled praise, clear and explicit guidelines to direct his behaviors, and effective plans to reinforce his self-regulation using modification and positive reinforcement. (Ex N 13)

O Independent Occupational Therapy Evaluation Updated, 6/9/22

Details Student delays and need for Occupational Therapy services.

Recommendations include:

• • 3 Individual OT sessions per week individually at 45 minutes per session at school, on a 12-month basis to prevent regression;
• • Compensatory Occupational Therapy services are recommended in the form of a bank of 138 occupational therapy hours (providing 1 hour a week for 46 weeks, for 3 years), which Student required. These makeup services will allow Student to require consistent improvements with his significant delays in several areas of sensory processing and regulation, inner core strength and proximal stability, ocular motor skill development, prewriting and handwriting skills, visual-motor integration skills, fine motor skills, self-care skills within the home and school environment and instrumental activities of daily living skills. These compensatory hours were derived from a qualitative approach, considering what [Student] will need to catch up, given the DOE failure to provide him with an appropriate mandate for the past several years. Unfortunately, the gaps will continue to widen if he does not have enough clinical intervention to address the deficits that are present. It is also recommended that the hours shall not have an expiration date so that they may be used over time (Ex O 16); and
• • Comprehensive [REDACTED] Evaluation. (Ex O 16)

P Affidavit of [REDACTED], 06/30/22

Occupational Therapist provides Testimony that includes:

• • details of her qualifications (Ex P 1-2);
• • completing evaluation and updated evaluation (Ex F & O, P 2);
• • evaluation process was detailed along with revealed Student challenges and delays (Ex P 3-8);
• • Recommendations made include:
• • Student should receive OT services 3x45, 1:1, weekly, on a 12 month basis to prevent regression, to address Student dysfunction, strength, visual and daily living skills (Ex P 8-9);
• • Compensatory OT services as a bank of 138 OT hours (1 hour weekly for 46 weeks for 3 years);
• • Compensatory services will allow Student to require consistent improvements with his significant delays in several areas of sensory processing and regulation, inner core strength and proximal stability, ocular motor skill development, prewriting and handwriting skills, visual-motor integration skills, fine motor skills, self-care skills within the home and school environment and instrumental activities of daily living skills (Ex P 9);
• • Compensatory services derived from qualitative approach considering Student needs to catch up, given the DOE’s failure to provide an appropriate mandate for the past several years. Gaps will continue to widen without enough clinical intervention to address the deficits that are present. (Ex P 9)

FINDING OF FACTS AND DECISION

Purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE 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) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove v. T.A., 129 S. Ct. 2484, )2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).

A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 [2d Cir. June 24, 2013]; R.E. v. New York City Dep't. of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012], cert. denied 2013 WL 1418840 [U.S. June 10, 2013]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998] [quoting Rowley, 458 U.S. at 206]; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]).

Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245; A.H. v. Dep't of Educ., 2010 WL 3242234, at *2 [2d Cir. Aug. 16, 2010]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008], aff'd, 2009 WL 3326627 [2d Cir. Oct. 16, 2009]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007], aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). 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). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132 [quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989)] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and... affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195 [quoting Walczak, 142 F.3d at 130] [citations omitted]); see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 [S.D.N.Y. 2010], aff'd, 2012 WL 4946429 [2d Cir. Oct. 18, 2012]; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]).

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6[S.D.N.Y. July 3, 2008] [noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see also Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

The Supreme Court has stated that even if it is unreasonable to expect a student to attend a regular education setting and achieve on grade level, the educational program set forth in the student's IEP "must be appropriately ambitious in light of his [or her] circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives" (Endrew F., 137 S. Ct. at 1000).

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her 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 (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).

The burden of proof is on the school district during 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 (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85). A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129). A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (Carter, 510 U.S. at 13-14). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ. of the City Sch. Dist. of Yonkers, 231 F.3d 96, 104 [2d Cir. 2000]). "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement'" (Gagliardo, 489 F.3d at 112, quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 [2d Cir. 2006]; see Rowley, 458 U.S. at 207). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). When determining whether a unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether the placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115; Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] ["evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]). A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; Educ. Law § 4401[1]; 34 CFR 300.39[a][1]; 8 NYCRR 200.1[ww]; Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836 [2d Cir. 2014]; Gagliardo, 489 F.3d at 114-15; Frank G., 459 F.3d at 365).

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement. No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).

The final criterion for a reimbursement award is that the parents' claim must be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]; L.K. v. New York City Dep't of Educ., 674 Fed. App'x 100, 101 [2d Cir. Jan. 19, 2017]). With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; 34 CFR 300.148[d]; E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014] [identifying factors relevant to equitable considerations, including whether the withdrawal of the student from public school was justified, whether the parent provided adequate notice, whether the amount of the private school tuition was reasonable, possible scholarships or other financial aid from the private school, and any fraud or collusion on the part of the parent or private school]; C.L., 744 F.3d at 840 [noting that "[i]mportant to the equitable consideration is whether the parents obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA"]).

Reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to their removal of the student from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense" (20 U.S.C. § 1412[a][10][C][iii][I]; see 34 CFR 300.148[d][1]). This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools" (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]). Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision (Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); see Frank G., 459 F.3d at 376; Voluntown, 226 F.3d at 68).

DOE offer of FAPE for the 2019-2020, 2020-2021 and 2021-2022 School Years

DOE opted to defend IEP, of 05/24/2021, intended for the 21-22 school yesr. (Ex 11)

As detailed above, the IEP is not evidenced to be capable of offering the Student a FAPE.

Parent Evidentiary Documents detail the Student educational history, as accurately depicted in Parent’s Closing Brief. (IHO Ex IV)

Parent continuously raised concerns regarding Student IEPs, specifically, at times, concerning a lack of proper evaluations, lack of a 12 month program, and lack of delivery of mandated services. (IHO Ex IV 3-4)

Student, as detailed above and in Closing Brief, continuously needed 1:1 instruction and attention throughout the day, for the 20-21 school year. (IHO Ex IV 5)

For the 21-22 school year the Parent details various failings of the IEP process, and IEP, which are borne out by the Evidence, as reviewed above. (IHO Ex IV 5-6)

DOE offered no evidence that the Parent in any way frustrated any attempt of the DOE to offer a FAPE for any of the School Years at issue.

I find the DOE failed to offer the Student a FAPE for the 19-20, 20-21 & 21-22 school years.

COMPENSATORY SERVICES

Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]). In New York State, a student who is otherwise eligible as a student with a disability, may continue to obtain services under the IDEA until he or she receives either a local or Regents high school diploma (34 CFR 300.102[a][3][i]; 8 NYCRR 100.5[b][7][iii]; Application of the Bd. of Educ., Appeal No. 05-084; Application of the Bd. of Educ., Appeal No. 05-037), or until the conclusion of the ten-month school year in which he or she turns age 21 (Educ. Law §§ 3202[1], 4401[1], 4402[5][b]; 8 NYCRR 100.9[e], 200.1[zz]; see 34 CFR 300.102[a][1], [a][3][ii]; Application of a Child with a Disability, Appeal No. 04-100).

The nature and extent of compensatory education services that courts have recognized varies according to the facts and circumstances of a given case; however, as a remedy that arises out of the equitable jurisdiction of 20 U.S.C. §1415, courts will craft compensatory education relief that “should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA.” Reid, 401 F.3d, at 516; Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 (11th Cir. 2008)(same); see, e.g., G. ex rel. RG v. Fort Bragg Dependent Sch., 343 F.3d 295 (4th Cir. 2003) (“Compensatory education involves discretionary, prospective, injunctive relief crafted by a court to remedy what might be termed an educational deficit created by an educational agency's failure over a given period of time to provide a FAPE to a student.”); see also Parents of Student W. v. Puyallup Sch. Dist., 31 F.3d 1489, 1497 (9th Cir. 1994)(Noting that “it may be a rare case when compensatory education is not appropriate” to remedy an IDEA violation.).

In determining a compensatory award, most courts seek to ascertain the child’s needs at the time the relief is sought.10 Reid, 401 F.3d 516; see, e.g., Streck, 2010 WL 4847481, at *2 (Court awarded compensatory education relief that required the school district to “open and maintain for 3 years, an escrow account,” which will be used to pay for student’s reading instruction at Landmark College and assistive technology supports.); Woods v. Northport Pub. Sch., 487 Fed. Appx. 968, 2012 WL 2612776, at *978-79 (6th Cir. July 5, 2012) (upholding IHO award of 768 hours of compensatory tutoring as “reasonable recover” for a lengthy denial of FAPE; given the student’s age, the “window of opportunity to become usefully literate ha[d] begun to close.”).

If Student is found to be entitled to compensatory education under applicable law; compensatory education is an equitable remedy that arises out of the jurisdiction of 20 U.S.C. § 1415; equitable factors do not bar relief here and no inequitable conduct was established on the part of the parents. N.R. ex rel. T.R. v. Dep’t of Educ. of City Sch. Dist. of City, No. 07 Cv. 9648 (BSJ), 2009 WL 874061 (S.D.N.Y. Mar. 31, 2009) (Reversing the SRO and upholding the award; Court found that it is well established that, in the absence of evidence demonstrating that the parents failed to cooperate with the CSE, or otherwise engaged in conduct that precluded the development of an appropriate IEP, equitable considerations generally support a claim for tuition.); Wolfe v. Taconic Hills Cent. Sch. Dist., 167 21 F.Supp.2d 530 (N.D.N.Y. 2001)( the equities—requires a balancing of both parties’ conduct and interest—not merely the actions of the parent).

There are no facts established here that show that the parent failed to cooperate or acted inequitably to interfere with the DOE’s ability provide FAPE.

FAPE has already been found to have been denied the Student for several school years.

The DOE offers no rebuttal to the Parent’s presentation regarding Compensatory service, or otherwise refutes the contents of the Student’s recent evaluations. (Ex E, F & O)

Recent evaluations recommend various Compensatory services to address the DOE failure to offer the Student a FAPE. Each evaluation is found to be credible and supportive of the Student being entitled to Compensatory Services. Parent Closing Brief outlines accurately the specific relief sought, related to the DOE failure to offer a FAPE for several years.

I find the Student is indeed entitled to Compensatory Services, to the extent Ordered below.

I do not find it necessary to Order an enhanced rate. Evidence has not been provided that an enhanced rate is needed for the Student to obtain services. Enhanced Rate has become a common term to essentially refer to a rate higher than the Standard DOE rate. Instead, I find it proper to Order services to be delivered at reasonable market rate, which enables the Parent to obtain services at whatever the available rate may be as time passes under the Order.

I also do not find it proper to allow for the services to be obtainable without expiration.

Considering the length of the denial of FAPE I find it appropriate to allow the utilization of the Compensatory Services through August 31st, 2025.

Parent seeks an Order that includes:

• • Compensatory 1:1 Academic Instruction / Tutoring of 1,860 Hours at an Enhanced Rate Dr. [REDACTED] recommended a bank of non-expiring compensatory 1:1 academic instruction / tutoring hours of 1,860 hours. Tr. 353-379; Ex. N. The Parent is requesting that the compensatory 1:1 academic instruction / tutoring services be ordered at an enhanced rate to allow the Parent the flexible to retain providers in the New York City area. Ex. A.
• • Compensatory Parent Training of 138 Hours at an Enhanced Rate Dr. [REDACTED] recommended a bank of non-expiring compensatory 138 hours of Parent Training. The Parent is requesting that the compensatory hours be ordered at an enhanced rate to allow the Parent the flexible to retain providers in the New York City area. Ex. A.

(IHO Ex IV 13)

• • Compensatory PT services of 21 Hours at an Enhanced Rate Dr. [REDACTED] recommended a bank of non-expiring compensatory PT hours of 21 hours to account for the student’s missed PT services during remote instruction. Tr. 353-379; Ex. N. The Parent is requesting that the compensatory social skills training hours be ordered at an enhanced rate to allow the Parent the flexible to retain providers in the New York City area. Ex. A.
• • Compensatory SLT Services of 276 Hours at an Enhanced Rate Per [REDACTED]report and testimony, H.R. requires 276 compensatory SLT hours.

Ex. M. The Parent is requesting that the compensatory SLT hours be ordered at an enhanced rate to allow the Parent the flexible to retain providers in the New York City area. Ex. A.

• • Compensatory OT of 138 Hours at an Enhanced Rate Ms. [REDACTED] recommended a non-expiring bank of 138 hours of compensatory OT hours.

Exs. F, O, and P. The Parent is requesting that the compensatory OT services be ordered at an enhanced rate to allow the Parent the flexible to retain providers in the New York City area. Ex A.

(IHO Ex IV 14)

INDEPENDENT EDUCATIONAL EVALUATION (IEE)

The IDEA provides parents with a number of procedural safeguards. Among them is the "right... to obtain an independent educational evaluation of the child," which in turn means "an evaluation conducted by a qualified examiner who is not employed by the public agency responsible for the education of the child in question" (34 CFR 300.502[a][1], [3][i]). Parents who express a disagreement with an evaluation conducted by the district also have the right to seek an IEE conducted at public expense in some circumstances (34 CFR 300.502[b]; 8 NYCRR 200.5[g][1]; see K.B. v. Pearl River Union Free Sch. Dist., 2012 WL 234392, at *5 [S.D.N.Y. Jan. 13, 2012] [noting that "a prerequisite for an IEE is a disagreement with a specific evaluation conducted by the district"]; see also Lauren W. v. DeFlaminis, 480 F.3d 259, 275 [3d Cir. 2007] [explaining that parents do not have the right to an IEE at public expense where parents actually agreed with the school's evaluation]; Edie F. v. River Falls Sch. Dist., 243 F.3d 329, 335 [7th Cir. 2001] [explaining that parents do not have the right to an IEE at public expense where their disagreement was with the result of the child's IEP not with a particular diagnosis or methodology of evaluation]; M.C. v. Katonah/Lewisboro Union Free Sch. Dist., 2012 WL 834350, at *11–12 [S.D.N.Y. Mar. 5, 2012]; M.V. v. Shenendehowa Cent. Sch. Dist., 2013 WL 936438, at *6 [N.D.N.Y. Mar. 8, 2013]; R.L. v. Plainville Bd. of Educ., 363 F. Supp. 2d. 222, 234-35 [D. Conn. 2005] [finding parental failure to disagree with an evaluation obtained by a public agency defeated a parent's claim for an IEE at public expense that was sought for additional information]). "If the parent obtains an independent educational evaluation at public expense or shares with the public agency an evaluation obtained at private expense, the results of the evaluation [m]ust be considered by the public agency, if it meets agency criteria, in any decision made with respect to the provision of FAPE to the child" (34 CFR 300.502[c])

If a parent requests an IEE at public expense, the school district must, without unnecessary delay, either (1) ensure that an IEE is provided at public expense; or (2) initiate an impartial hearing to establish that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria (34 CFR 300.502[b][2][i]-[ii]; 8 NYCRR 200.5[g][1][iv]). If a school district's evaluation is determined to be appropriate by an IHO, the parent may still obtain an IEE, although the district will not be required to provide it at public expense (34 CFR 300.502[b][3]; 8 NYCRR 200.5[g][1][v]; see A.H. v. Colonial Sch. Dist., 2019 WL 3021232, at *3 [3d Cir. July 10, 2019]). Additionally, both federal and State regulations provide that "[a] parent is entitled to only one [IEE] at public expense each time the public agency conducts an evaluation with which the parent disagrees" (34 CFR 300.502[b][5]; 8 NYCRR 200.5[g][1]). The time period for asserting claims based upon a disagreement with a school district's evaluation can be shorter than the mandatory three-year reevaluation period in some cases (see D.S., 357 F. Supp. 3d at 179).

An IEE must use the same criteria as the public agency's criteria (Seth B. v. Orleans Par. Sch. Bd., 810 F.3d 961, 973–79 [5th Cir. 2016]). Informal guidance from the United States Department of Education's Office of Special Education Programs (OSEP) indicates that if a parent disagrees with an evaluation because a child was not assessed in a particular area, the parent has the right to request an IEE to assess the child in that area (Letter to Baus, 65 IDELR 81 [OSEP 2015]), however recent caselaw clarifies that parents may not demand a comprehensive IEE at public expense while at the same time refusing to consent to the school district's offer to conduct the same assessments (D.S. v. Trumbull Bd. of Educ., 357 F. Supp. 3d 166, 178 [D. Conn. 2019], citing N.D.S. v. Acad. for Sci. & Agric. Charter Sch., 2018 WL 6201725, at *5–*7 [D. Minn. 2018] [explaining that where parents request an IEE to challenge an obsolete evaluation, they are entitled to a due process hearing limited only to whether the evaluation was appropriate at the time it was completed; if parents wish for a publicly funded IEE with respect to their child's current condition, then they must allow the school district to conduct a current reevaluation and then request an IEE if they disagree]).

The burden of proof is on the school district during 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 (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85). In accordance with this burden, the district bears the burden of showing that its evaluation of the student was appropriate in order to prevail in its challenge to the parents' requests for IEEs at public expense

Additionally, an IHO is vested with the authority to direct that a student be evaluated at district expense (34 CFR 300.502[d]; 8 NYCRR 200.5[g][2]; [j][3][viii]). IHOs are "granted broad authority in their handling of the hearing process and to determine the type of relief which is appropriate considering the equitable factors present and those which will effectuate the purposes underlying IDEA" (Warren Consolidated Schs., 106 LRP 70659 [LEA MI 2000]).

A district must conduct an evaluation of a student where the educational or related services needs of a student warrant a reevaluation or if the student's parent or teacher requests a reevaluation (34 CFR 300.303[a][2]; 8 NYCRR 200.4[b][4]); however, a district need not conduct a reevaluation more frequently than once per year unless the parent and the district otherwise agree and at least once every three years unless the district and the parent agree in writing that such a reevaluation is unnecessary (8 NYCRR 200.4[b][4]; see 34 CFR 300.303[b][1]-[2]). A CSE may direct that additional evaluations or assessments be conducted in order to appropriately assess the student in all areas related to the suspected disabilities (8 NYCRR 200.4[b][3]).

An evaluation of a student must be sufficiently comprehensive to identify all of the student's special education and related services needs, whether or not commonly linked to the disability category in which the student has been classified (34 CFR 300.304[c][6]; 8 NYCRR 200.4[b][6][ix]; see Application of the Dep't of Educ., Appeal No. 07-018).

Under 200.5 (g) of the New York regulations and 34 CFR § 300.502 (b) (1) of the federal regulations, if a Parent disagrees with a district’s evaluation or re-evaluation of her child, she has the right to request an IEE at public expense. Upon Parent IEE request the public agency must, without unnecessary delay, either:

(i) File a due process complaint to request a hearing to show that its evaluation is appropriate; or

(ii) Ensure that an independent educational evaluation is provided at public expense, unless the agency demonstrates in a hearing pursuant to §§ 300.507 through 300.513 that the evaluation obtained by the parent did not meet agency criteria. 34 CFR 300.502(b)(2). 8 NYCRR § 200.5 (g)

In this case the Parent advised the DOE of objection to the previously conducted evaluations and sought an Order for a variety of IEEs, some of which were Ordered via Interim Order (Ex A, IHO Ex III):

• • Speech and Language evaluation (Via Interim Order IHO Ex III);
• • Auditory Processing evaluation;
• • Neuropsychological evaluation (Via Interim Order IHO Ex III);
• • Occupational therapy evaluation (Via Interim Order IHO Ex III);
• • Assistive technology evaluation;
• • Observation with an expert in behavior;
• • Vision processing evaluation; and
• • A private functional behavior assessment (“FBA”) and positive behavior
• • plan for home and school.

The Parent casts a wide net of evaluations to identify areas of Student need and to identify potential remedy in the event a failure to offer a FAPE is found.

Parent Closing Brief seeks additional IEEs of:

• • AN INDEPENDENT FBA and BIP; AND
• • NEUROPSYCHOLOGICAL REEVALUATION, PER DR. [REDACTED]’S

RECOMMENDATIONS

(IHO Ex IV 14)

Evidence supports an FBA and BIP, showing Student behavior issues (Ex 11-4) as is recommended in recent Report:

- Functional Behavior Assessment (FBA) and Behavior Intervention Plan (BIP) conducted by a professional with ABA training. The goal of an FBA and BIP is to promote an increase in desired classroom behaviors. There should be frequent opportunities to engage in these specific targeted behaviors throughout the school day; and Student continues to require behavioral support in the classroom, characterized by active use of labeled praise, clear and explicit guidelines to direct his behaviors, and effective plans to reinforce his self-regulation using modification and positive reinforcement. (T 368-369, Ex N 13)

Report also indicates the Student should receive ongoing care and re-evaluation. (Ex N 14)

This seems to be an obvious part of the process for any special education child and need not be Ordered presently. A series of reports have recently been generated and must first be considered at an IEP meting before additional evaluations are gathered.

PROGRAM AND PLACEMENT

When determining an appropriate placement on the educational continuum, a CSE should first determine the extent to which the student can be educated with nondisabled peers in a public school setting before considering a more restrictive nonpublic school option (see E.F. v New York City Dept. of Educ., 2013 WL 4495676, at *15 [E.D.N.Y. Aug. 19, 2013] [explaining that "under the law, once [the district] determined that [the public school setting] was the least restrictive environment in which [the student] could be educated, it was not obligated to consider a more restrictive environment, such as [the nonpublic school]; A.D. v. New York City Dep't of Educ., 2013 WL 1155570, at *8 [finding that "[o]nce the CSE determined that [public school setting] would be appropriate for the [s]tudent, it had identified the least restrictive environment that could meet the [s]tudent's needs and did not need to inquire into more restrictive options such as nonpublic programs"]). An IHO Order that the CSE refer the student to the CBST for placement in a nonpublic school, particularly when read in conjunction with his order that the CSE reconvene to consider the results of the various ordered evaluations of the student, would violate the CSE's duty to first determine if the student can be educated in a public school setting, and, as such, is premature (see Cooke Center for Learning and Dev. v. Mills, 19 A.D.3d 834, 836 [3rd Dep't 2005] ["The federal law prefers a 'public' education, where a 'child is educated in the school that he or she would attend if nondisabled,' if possible"]; Matter of Pelose, 66 A.D.3d 1342, 1344 [4th Dep't 2009] ["Indeed, the central purpose of the IDEA …and article 89 of the Education Law is to afford a 'public' education for children with disabilities"]).

Parent seeks:

• • A determination that an appropriate special education program for Student includes (i) 30 hours per week of push in Special Education Itinerant Teacher services, (ii) SLT 3x30 1:1 and 2x30 3:1, (iii) OT 3x45 1:1, (iv) behavior parent training (BPT) of 1x60 per week, and (v) a 12-month school year.

Presently, a series of recent evaluations have been assembled detailing areas of Student special need and detailing an array of recommendations to be considered as part of an appropriate Student program. (Ex E, F, N, O & P)

Additional evaluation is also Ordered below, an FBA and BIP.

Relief in the form of IEP amendments and prospective placement of the student in a nonpublic school is not appropriate in this instance as it would tend to circumvent the statutory process, under which the CSE is the entity tasked with reviewing information about the student's progress under current educational programming and periodically assessing a student's needs (see Adams v. Dist. of Columbia, 285 F. Supp. 3d 381, 393, 396-97 [D.D.C. 2018] [noting with approval the hearing officer's finding "that the directives of IDEA would be best effectuated by ordering an IEP review and revision, rather than prospective placement in a private school"]; see also Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *16 [E.D.N.Y Oct. 30, 2008] [noting that "services found to be appropriate for a student during one school year are not necessarily appropriate for the student during a subsequent school year"]).

At this point, the 2021-2022 school year is concluded, and, in accordance with its obligation to review a student's IEP at least annually, the CSE should have already convened to revise the student's program and developed a new IEP for the student. (see 20 U.S.C. § 1414[d][4][A]; Educ. Law § 4402[2]; 34 CFR 300.324[b][1]; 8 NYCRR 200.4[f]).

Parent or District need to request an IEP meeting to review the newly acquired evaluative material and develop an appropriate IEP.

Either Party may do this immediately, or may wait until completion of the FBA and BIP to further identify areas of Student need and potential services and supports to include in an IEP.

ORDER

• • The Department of Education (DOE) failed to offer the Student a FAPE for the 2019-2020, 2020-2021 & 2021-2022 school years.
• • The DOE shall fund compensatory services, for the Student, to be utilized by 08/25/2025, and paid at reasonable market rate, as indicated below:
• • Compensatory 1:1 Academic Instruction / Tutoring of 1,860 Hours
• • Compensatory Parent Training and Counseling of 138 Hours
• • Compensatory Physical Therapy of 21 Hours
• • Compensatory Speech and Language Therapy of 276 Hours
• • Compensatory Occupational Therapy of 138 Hours
• • The DOE shall fund Student Independent Educational Evaluation below:
• • Functional Behavior Assessment (FBA) and Behavior Intervention Plan (BIP) conducted by a professional with ABA training.
• • The DOE shall provide Parent with any documents or forms necessary to facilitate services and evaluation under this Order, within ten days of the date of this Order.
• • 5. This decision is subject to appeal and review by the State Review Officer.

DATED: July 28, 2022

DANIEL AJELLO

DANIEL AJELLO

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.  The regulations governing appeals 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.

As those Regulations detail, before filing an appeal, if either party intends to appeal the decision, a Notice of Intention to Seek Review shall be personally served upon the opposing party before the Appeal itself is filed, no later than 25 days after the date of the decision sought to be reviewed.

The Appeal itself must 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.

The Department of Education has designated the New York City Law Department to accept service of papers on its behalf, including appeals of decisions of Impartial Hearing Officers.  Such service is made at 100 Church Street, New York, NY 10007 at the Messenger Center.