New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 557004 - NYC: 213019

FINDINGS OF FACT AND DECISION

Case Number: 213019

Student’s Name^[1]: REDACTED (“Student”)

Date of Birth: REDACTED School

District: REDACTED

Hearing Requested by: REDACTED (“Parent(s)”)

Request Date/Date Complaint Filed: 09/02/21

Date(s) of Hearing: 01/28/22

02/11/22

06/24/22

07/15/22

07/19/22

08/10/22

08/18/22

09/13/22

09/21/22

10/12/22

11/09/22

Actual Record Closed Date: December 29, 2022

Date of Decision: January 10, 2023

Date of Distribution if Different than Decision Date: n/a

Hearing Officer: Rachel Gibbons

NAMES AND TITLES OF PERSONS WHO APPEARED ON 01/28/22

For the Student:

REDACTED Attorney

For the Department of Education:

REDACTED District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON 02/11/22

For the Student:

REDACTED Attorney

For the Department of Education:

REDACTED District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON 6/24/22

For the Student:

REDACTED Attorney

For the Department of Education:

REDACTED District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON 7/15/22

For the Student:

REDACTED Attorney

For the Department of Education:

None

NAMES AND TITLES OF PERSONS WHO APPEARED ON 7/19/22

For the Student:

REDACTED Attorney

For the Department of Education:

REDACTED District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON 8/10/22

For the Student:

REDACTED Attorney

REDACTED BCBA/LBA

For the Department of Education:

REDACTED District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON 8/18/22

For the Student:

REDACTED Attorney

REDACTED SEIT Provider

For the Department of Education:

REDACTED District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON 9/13/22

For the Student:

REDACTED Attorney

Parent Parent

For the Department of Education:

REDACTED District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON 9/21/22

For the Student:

REDACTED Attorney

REDACTED Neuropsychologist

REDACTED Agency Administrator

REDACTED PROMPT Speech and Language Pathologist

For the Department of Education:

REDACTED District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON 10/12/22

For the Student:

REDACTED Attorney

For the Department of Education:

REDACTED District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON 11/09/22

For the Student:

REDACTED Attorney

Parent Parent

For the Department of Education:

REDACTED District Representative

INTRODUCTION AND PROCEDURAL HISTORY

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parent’s Due Process Complaint (“DPC") filed against the New York City Department of Education (“DOE” or “District”) on or about September 1, 2021. (Ex. A)^[2]. The DPC alleged, inter alia, that the District failed to: provide the Student with a free appropriate public education for the 2019-20, 2020-21 and 2021-22 school years; conduct timely and appropriate evaluations and reevaluations; to create substantively and procedurally appropriate IEP(s) and placements(s); properly implement the IEPs; provide requested IEEs; provide in-person services during the Covid-19 pandemic; provide the Parent with their due process rights including but not limited to prior written notice (“PWN”) of the Turning Five Process; provide the Parent with the Student’s special education records; and that the District predetermined the outcome of the Student’s IEP meetings. (Ex. A pp. 2 through 13). ^[3] In the DPC the Parent enumerated scores of specific allegations and sub-allegations for each claim mentioned. Id. The Parent also alleged discrimination under section 504. Id. On September 20, 2021 the Parent submitted a records and IEEs request. (P-Ex. C). The DOE responded to the records request in November 2021. (IHO-Ex. V p. 1; see P-Motion-Ex. C pp. 1-160).

This IHO was appointed on January 4, 2021, following the recusal of the previous IHO. The previous IHO issued an interim pendency order based upon the July 16, 2021 IEP.^[4] (P-Exs. B, D). The order directed the District to provide the following services: Special Education Itinerant Teacher (“SEIT”) services 10 hours per week, individual service; speech-language therapy (“SLT”), individual service, three times per week, for 30-minute sessions; occupational therapy (“OT”), individual service, twice weekly for 30-minute sessions; physical therapy (“PT”), individual service, twice weekly for 30-minute sessions; and counseling, in a group of two students, once weekly for 30 minutes. (Id.) A prehearing conference was held on January 14, 2022 and status conferences were held on March 2, 2022, April 1, 2022 and May 16, 2022. On January 25, 2022, the Parent submitted motions and accompanying memoranda of law to compel the production of records and for an interim order for several independent educational evaluations (“IEEs”). ^[5] (IHO-Exs. II, V). On the same date the DOE issued a memo in opposition to the motion for IEEs. (IHO-Ex. III). A due process hearing was held on January 28, 2022, limited to the motions regarding IEEs and the motion to compel the DOE to produce records. During this hearing, pursuant to the instruction of this IHO, the DOE disclosed, via email, the prior written notice/letter of recommendation for the 2021-2022 school year along with the SESIS logs for the Student. (P-Ex. K). On January 30, 2022, this IHO issued an interim order directing the District to fund one IEE, an independent neuropsychological evaluation. (IHO-Ex. VI). The Parent prepared subpoenas for the Student’s educational records and for witnesses. The neuropsychological IEE was administered starting in May 2022 and the report was completed on August 4, 2022. (P-Ex. X pp. 2-3). On February 11, 2022 the District stated that it was “resting its case” and “not presenting any witnesses or evidence.” (Tr 137). However, on May 24, 2022, the DOE representative stated that the District would cross-examine Parent’s witnesses at hearing and would produce evidence regarding the 2021-2022 school year. ^[6] (Tr 174). On June 24, 2022 this IHO ordered the District to produce the Student’s “entire SESIS history” by 5:00 pm the following business day. (Tr 228-229). On June 24, 2022, the District complied produced additional records that had been requested by the Parent. (IHO Ex. VII). On July 19, 2022 this IHO that the DOE was foreclosed from preventing a case for FAPE at hearing. (Tr 260-261). On July 20, 2022 this IHO issued a subpoena for related service and special education attendance records.

A closed due process hearing concerning the case-in-chief was begun on February 11, 2022 and continued four months later on June 24, 2022; July 15, 2022; July 19, 2022; August 10, 2022; August 18, 2022; September 21, 2022; October 12, 2022; and November 9, 2022. Numerous hearing dates were necessary due to the number of witnesses, the complexity of the issues involved and witness availability.^[7] The Parent was represented by REDACTED. The DOE was represented by district representative REDACTED. The DOE did not submit any documentary evidence, call any direct or rebuttal witnesses, nor submit a written closing statement. The DOE stated generally that the District had provided a FAPE for the three years at issue and that the parental placement for the 2021-2022 school year was not appropriate for the Student. (Tr 219-222). The DOE also asserted that this IHO had no jurisdiction over the Section 1983/Section 504 actions; that a Parent could make a first request for an IEE in a due process complaint; and that the Parent had the burden to demonstrate their request for additional evaluations was valid. (Tr 206, 256). The DOE also questioned the appropriateness of the parental placement. The Parent submitted 29 documents during the hearing-on-the-merits and all were entered into evidence. (Ex. A through CC). Six witnesses testified at hearing on behalf of the Petitioners: the Parent; REDACTED, the BCBA (“BCBA”) from REDACTED. (“Agency”) who provided BCBA supervision for the Student; REDACTED, the Special Education Itinerant Teacher (“the SEIT”), who provided SEIT services to the Student during the 2021-2022 school year; REDACTED, the neuropsychologist (“Neuropsychologist”) who administered the IEE; REDACTED, an administrator from the Agency (“Administrator”); and REDACTED, the speech and language pathologist (“PROMPT SLP”) who provided PROMPT speech language therapy to the Student. Numerous orders of extension were issued due to the number and availability of witnesses; completion of IEE; complex issues; delay in receipt of the final transcript; receipt of closing briefs; and receipt and final compilation of evidence. All requests for extension were joined by the parties present. A closing brief was submitted by the Parent on December 12, 2022. The DOE declined to submit a closing statement or brief. The record was closed on December 29, 2022. The final date of compliance for this matter is January 10, 2023.

JURISDICTION

The due process hearing was held, and a decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.

BACKGROUND^[8]

The Student, who is approximately six-and-a-half years old, has diagnoses of apraxia and autism spectrum disorder (“ASD”). (Tr 461-462). As a toddler, he received Early Intervention (“EI”) services due to speech delay and behavior issues. (Tr 462-63). In April 2019 he was classified as a “preschool student with a disability” by the Committee on Preschool Special Education (“CPSE”) with an IEP that recommended a full-day English speaking 12:1:2 classroom, for the extended school year (“ESY”) in an early childhood center with the related services of occupational therapy (“OT”), individual service, twice weekly for 30-minute sessions, and speech-language therapy (“SLT”), individual service, three times per week for 30-minute sessions. (P-Ex. W pp. 6-7). Counseling, once weekly for 30-minute session was provided, though left off the original April 2019 CPSE IEP. (Tr 466). The IEP Physical therapy (“PT”) was added in spring 2020 (Tr 469). In July 2019, at the age of three, he transitioned from EI to a DOE approved special education preschool program called REDACTED (“Preschool I”). (Tr 465-66; P-Ex W pp. 6-7). In December 2020, pursuant to the Covid-19 school shutdowns resulting in remote and then hybrid instruction models, the Student transferred to a DOE-approved preschool special education program called REDACTED (“Preschool II”) which offered fulltime in-person instruction. (Tr 481-82; Motion-Ex. C 118-122).

The school-age Committee on Special Education (“CSE”) team met on May 4, 2021 and developed an IEP for the 2021-2022 school year. (P-Ex. W pp. 8-33). The May 2021 CSE IEP for kindergarten recommended a 12:1+1 class in a non-specialized DOE school, with a host of related services. (Id.) The Student was withdrawn from Preschool II at the end of June 2021 and attended a private summer camp for the summer months. (Tr 497-98; Motion-Ex. C 160). In July 2019 the CPSE recommended SEIT services, 1:1 for ten hours weekly for the summer of 2021. (Tr 617-618; P-Ex. p. 16). In September For kindergarten, the Student was enrolled in REDACTED (“NPS”), a private REDACTED school, in September 2021, where he participated in a unilateral program consisting of a general education classroom with 10 hours of weekly 1:1 SEIT services granted through pendency, 1:1 behavioral support provider and Board Certified Behavioral Analyst (“BCBA”) supervision. (Tr 288, 289). DPC asserts that the DOE failure to provide IEEs when requested:

ISSUES

The DPC alleges that the DOE failed to: provide FAPE for the 2019-2020, 2020-2021 and 2021-2022 extended school years^[9]; conduct timely and appropriate evaluations and reevaluations; develop substantively and procedurally appropriate IEPs and placements; fully implement the Student’s IEPs; provide in-person services during Covid; provide the Parent with the Student’s special education records; follow procedural requirements of the IDEA; provide qualified, licensed and certified staff; and provide the Parent(s) with their due process rights. (P-Ex. A p. 2). The DPC asserts that the DOE predetermined the outcome of meetings^[10], violated Section 504 and discriminated against the Student. (Id.) The DPC further alleges that the DOE failed to fund IEEs when it was appropriate to do so and requested the following publicly funded IEEs: neuropsychological evaluation; autism/ABA assessment; speech and language evaluation; auditory processing evaluation; assistive technology evaluation; occupational therapy evaluation; physical therapy evaluation; vision processing evaluation; and an observation with an expert in autism. (P-Ex. A pp. 9, 14-15).

The DPC requests relief in the form of: a declaratory judgment in favor of the Parent that the DOE has denied the Student a FAPE for the school years at issue; immediate implementation of pendency; provision of transportation; DOE funding of a private functional behavior assessment (“FBA”) and positive behavior plan for home and school; DOE funding of compensatory education in a number of areas^[11]; DOE reimbursement and/or prospective funding of the IEEs listed supra; market rates for any services ordered; DOE funding and/or satisfaction the Parent’s debt for a full-day of 1:1 instruction, ABA services, ABA supervision and related services, as well as extended school year and extended school day services and transportation at a school that affords the Student access to typical peers; DOE reimbursement of the Parent’s out-of-pocket fees and/or satisfy their debts for “any expenses relating to the Student’s special education needs”; DOE payment of Parent’s reasonable legal fees; and other relief this IHO may find appropriate. (P-Ex. A pp. 14-15).

The DOE did not present a case at hearing and therefore conceded the issue of FAPE. The DOE asserted that the District did provide FAPE (Tr 219-21) and objected to the Parent’s proposed remedy, by arguing that the unilateral special education program developed by Parent was inappropriate (Id., see also Tr 205). The DOE cross-examined witnesses and argued during motion practice that the requested IEEs were not appropriate. (See IHO-Ex. III). This Findings of Fact and Decision (“FOFD”) will specifically address the issues regarding Parent’s requests for reimbursement or direct payment of tuition^[12], related services, or other out-of-pocket fees; compensatory education; IEEs and funding for pendency services.

FINDINGS OF FACT

• • As a toddler, the Student attended a center-based EI program which utilized ABA and provided him with the related services of SLT, OT and counseling. (Tr 462-463). He received a diagnosis of speech apraxia while in EI. (Tr 462; P-Ex. F p. 1). He was referred to EI for speech delay and behavioral issues. (Tr 463).
• • The Student was referred to the CPSE in early 2019, evaluations were administered and an IEP was developed in April 2019. (Tr 464; P-Ex. W pp. 6-7). The evaluations reflected that the then two-year, seven month Student had numerous challenges including behavioral issues, a borderline IQ, reduced receptive and expressive language skills, unintelligible speech and poor fine motor skills. (P-Motion-Ex. pp. 24-36). He was classified as a preschool student with disability. (P-Ex. W p. 6). The CPSE recommended a fulltime 12:1:2 self-contained special education class with SLT three times weekly for 30 minutes and OT twice weekly for 30 minutes. (Tr 465-466; W pp. 6-7). He also received counseling, although it was not on the original April 2019 CPSE IEP.^[13] (Tr 466, see P-Motion-Ex. 49-51). In July 2019 the Student, who was just turning three-years-old, started REDACTED (“Preschool I”). (Tr 465).
• • The Parent became concerned that the Student had no “peer models” in the class and she requested a move an integrated classroom. (Tr 344, 466-67). Pursuant to a July 2019 IEP meeting the Student was transferred to an integrated 12-student classroom in the same preschool. (Tr 467-468). Physical therapy was added to his program pursuant to a school recommended January 2020 PT evaluation and a March 2020 IEP. (Tr 469, P-Ex. E pp. 16-19). The Student received remote PT during the spring and summer of 2019. (Tr 469-70; P-Ex. W p. 5).
• • The Student’s Preschool I education progress report was dated December 1, 2019 and signed by teacher REDACTED. (P-Ex. E p. 2). The report states that the Student was a three-year, four month boy who was “functioning below age level in several areas of development. His significant expressive language delays interfere with all communicative efforts, including interactive play. Cognitive delays are evidence as well, including in his receptive language, visual discrimination skills, and perceptual motor skills. [He] presents with a low state of arousal. His self-regulation skills are all delayed. He is distractible, impulsive, and has a hard time focusing in group activities. [His] frustration tolerance is also compromised.” (P-Ex. E p. 3). She noted that would “hit or grab toys away” when frustrated, rather than using appropriate language. (Id. p. 2). The Student showed “some” and “inconsistent” progress. (Id.) The report concluded that the rate of progress was slow due to the Student’s “learning style” and the diagnosis/medical condition of “Childhood Apraxia of Speech.” (Id. at 3).
• • The Student’s Preschool I occupational therapy progress report was dated December 1, 2019 signed by REDACTED. (P-Ex. E pp. 5-7). The report noted that the Student had a 33% delay on both the Beery VMI Developmental Test of Motor Coordination and Peabody Fine Motor Developmental Scale. (Id.) She noted that “He did not verbalize his feelings when sad, angry or otherwise discontent. He does not tantrum in school, nor does he throw toys. He will hide his face, lay out on the carpet or cry when upset or corrected.” (Id.) The November 25, 2019 counseling progress report was signed by REDACTED and noted that counseling served the purpose of “teaching cooperative play skills and communicating and interacting in a positive manner with his peers.” (P-Ex. E p. 9). The Student’s progress was a combination of “inconsistent” and “some”. (Id. at 10-11). She noted that “[The Student] interacts in a positive manner most of the time with peers in the classroom and has been observed to have at least one consistent friend. He engages with other peers by smiling and making eye contact and appears to get enjoyment from his peers most of the time. He does, however, demonstrate difficulty with enduring disappointment when he cannot have a toy that a friend may have and has been observed to grab a toy from his peer. He continues to require guidance and support in initiating play with his peers and future sessions will continue to focus on fostering positive interactions with peers.” (P-Ex. E p. 10). The report concluded that more time was needed to reach his goals and his rate of progress was slow due to Childhood Apraxia of Speech. (Id. at 11).
• • The Preschool I speech and language progress report, dated December 1, 2019 and signed by REDACTED, noted that the Student was “friendly and greets adults and peers. He demonstrates appropriate eye contact and changing affect. He uses language to greet, request, respond, label, report and relate past events. [He] asks questions using question construction and rising inflection.” (P-Ex. E p. 12). The report also stated that his “[His] speech intelligibility is highly compromised and it is difficult to understand by even the trained ear.” (Id.) The report states that “Models, prompts and PROMPT (PROMPTS for Restructuring Oral Muscular Phonetic Targets) are provided to [the Student] to increase production. [He] has been noted to produce the target phonemes with up to 80% accuracy in imitation. Correct production decreases when [he] repeats spontaneously.” (Id. p. 13). The report states that “according to criterion referenced norms...informal assessments and clinical judgment, [he] is demonstrating mild delays in receptive and expressive language skills.” (Id. p. 13). The report is detailed, reflects the results of various assessments and concludes that while he was making progress toward his goals, more time was needed and SLT should continue three times weekly, individual service for 30-minute sessions. (Id.)
• • When the schools shut down pursuant to the Covid-19 pandemic in mid-March 2020 and through the summer, Preschool I offered the Student’s classroom no live or pre-recorded remote educational instruction. (Tr 470-72). The Parent explained that Preschool I simply provided a link to YouTube videos which were not produced by the school nor individualized for the Student. (Tr 470-72). The Parent noted that in her employment as a SEIT, she provided live 1:1 lessons and interaction with her students via video. (Tr 471-72). The Student did receive related services live via Zoom. (Tr 472).
• • The Student had great difficulty with the remote instruction provided by his school. (Tr 471-73). The Parent testified that he had no interest in the videos, would not engage with them, had a low attention span and was unable to focus. (Id.) The Student had trouble engaging remotely with his related services providers. (Tr 472-73). The Parent stated that if an adult was not sitting with the Student he would simply run away from the screen. (Id.) The Parent testified that when faced with remote instruction the Student became aggressive and would tantrum. She described how the Student would throw himself on the floor, bang his head, scream, and pinch his parents. (Id.)
• • The Parent became concerned about the Student’s behaviors and tantrums and brought the Student to a nurse practitioner and neurologist who diagnosed him with apraxia of speech, autism spectrum disorder (“ASD”) and behavior disturbance. (Tr 474-75, P-Ex. F). The report noted that the Student was a “3 year old male with speech delay/apraxia with significant behavior issues. On exam [he] has difficulty following directions, making eye contact. Behaviors noted consistent with ASD.” (P-Ex. F). The doctor recommended ABA therapy, parent training, continued OT and PT and future consideration of low dose stimulant. (Id.) The report was electronically signed by a REDACTED, N.P and REDACTED, MD. (Id. p. 3).
• • During the summer of 2020 the Student the Parent withdrew the Student from Preschool I for a few weeks to attend an in-person summer camp. (Tr 475). She explained that he “needed to be able to…be a normal three-year-old.” He attended a couple of hours per day and “He did very well.” (Tr 475-476). “He thrived socially.” (P-Ex. J-7).
• • Pursuant to the ongoing Covid-19 pandemic, during the fall of 2020 Preschool I had a hybrid interactive remote and in-person instruction model. (Tr 476-78). The Parent testified that the Student’s teacher became concerned about his cognitive abilities and informed her that he was “like, the lowest functioning kid in the class.” (Tr 479). His class had no other children with IEPs (Id.) By early December 2020 the teacher informed her that the Student had not made much progress and could not carry over lessons he learned remotely back to the live classroom. (Tr 480).
• • On December 4, 2020 Preschool I issued a speech therapy progress report signed by REDACTED, which stated that the Student was making “progress in all areas of speech and language therapy. He is able to follow two step directives with contextual supports and respond to simple wh questions related to current and sometimes remote events.” (P-Motion-Ex. C 102). She noted that “he transitions beautifully from his classroom to the speech therapy room where he particularly enjoys play with vehicles and pretend play characters.” (Id). The report described his continued articulation difficulties, the use of “prompts and models” and noted that testing revealed that he had a “33% delay for both receptive and expressive language.” ^[14] (Id.) Continued SLT was recommended, three times weekly for 30-minute sessions. (Id.) Preschool I issued an occupational therapy progress report dated December 1, 2020 and signed by REDACTED, which noted that the Student “enjoye[d] coming to therapy sessions and is easily engaged in most presented tasks,” was making some progress, and would need to continue OT twice weekly for 30-minute sessions. (P-Motion-Ex. C pp. 99-101). The therapist had administered evaluations that reflected he had a 25% delay.^[15] The physical therapy progress report dated December 4, 2020 and signed by REDACTED, described the Student as “presenting with weakness in his trunk and extremities, poor graded control and delayed balance and coordination skills.” (P-Motion-Ex. C pp. 141). The report stated that he had made some progress toward his PT goals and he would continue to need PT services “twice weekly for twelve month period on an individual basis to strengthen core musculature, promote the development of balance reactions, graded control, timing and coordination to perform higher gross motor skills.” (P-Motion-Ex. C pp. 141-143). The report noted that the therapist had used the PDMS-II and clinical observations to determine that he presented with an “overall 37% delay in his gross motor skills.” (Id. p. 141)
• • Preschool I issued an education progress report dated December 4, 2020 signed by special education teacher REDACTED, which described the Student’s then-present level of performance in detail, including his abilities, progress and continuing difficulties. (P-Motion-Ex. C pp. 113-117). The report presents a cogent snapshot of the abilities of the Student, including the following excerpts:
• • [He] is a sweet, loving, playful [REDACTED] year old boy who has been in his present class, as a hybrid student receiving in class and remote instruction since September 2020. [His] current Hybrid program consists of 2-3 in-person learning days per week. He is provided with the opportunity to join two daily interactive virtual sessions and to access synchronous learning activities via our common Class Dojo app on the days when he is home for remote learning... [He] is currently in a small cohort with three additional peers... [He] enjoys attending school and arrives happily most days. He enjoys interacting with his peers and the staff with whom he works. He has developed nice relationships with his classmates and seeks out interactions with them. He loves to cuddle and seeks out hugs and physical reinforcement (ex. high fives). (P-Motion-Ex. C. 113).
• • [He] is able to engage in simple social and play exchanges with his peers. He can engage in parallel play with his peers, with some moments of cooperative play during an activity. His cooperative play often consists of engaging in dress-up cooking/serving food or pretending to be a doctor with two or three exchanges with a peer regarding the activity chosen. He also enjoys crashing cars or trucks into his peers’ vehicles or creating a race scenario. He needs assistance with turn taking and sharing when playing with favorite toys. [He] often engages in solo play when using blocks or Legos or gears...When a peer reaches out to him to engage in a joint play activity, he is able to state that he wants to finish the activity he is engaged in, or to share that he would like to play with his friend. He excitedly chooses board games, such as Candy Land or Diggin’ Doggies, but has difficulty comprehending the rules of the game (has difficulty counting spaces, turn-taking and understanding the motive of the game.) He enjoys the camaraderie of the game, but he becomes easily frustrated and loses interest after a few turns. [He] enjoys painting and coloring. He does not yet draw recognizable images but can verbally share slash/describe what he is drawing. He takes great pride in his artwork and loves to show it off to staff and peers. He frequently makes art gifts for his peers, teachers and family. (Id.)
• • [He] likes to play with Magna tiles, using them to change the color of the classroom by looking through them, and building different structures, like rocket ships and houses...He becomes frustrated when tasks that he is engaging in do not go as he plans they will... He is becoming better able to ask for help when he realized he is having a “problem” for which he needs assistance. Even though frustrated, [he] does not act out but can become resigned and move on to something else. (Id. p. 114).
• • [He] is a verbal child who will use language to comment, engage in simple social exchanges, request help, share activities he has done at home or upcoming events in his life. He enjoys morning circle where the children are asked what they have done over the weekend, and will report, with supporting details, activities he engaged in (ex: I see REDACTED. I went to her house. We play.”) Concerning speech, REDACTED has difficulties with articulation but willingly repeats that which he has said. He may have difficulty with processing and forming his answers, but he tries to get his point across, and will persist. [He] is diagnosed with apraxia; he presents with both expressive and receptive language delays...[His] apraxia affects his ability to process, interpret and organize answers to questions. (Id. p. 114).
• • The education progress report also notes, often with descriptive examples, the Student’s challenges. They include difficulties using toys and puzzles that require the ability to line up a post and hole; following directions that have two or more steps; using spatial/positional words; responding to “wh” questions, especially “why” or “how” questions; recognizing letters; phonemic awareness; consistently counting with 1:1 correspondence; and patterning skills. (P-Motion-Ex. pp. 113-114). He needed reminders to properly wash and dry his hands, to remember to use the bathroom, following through the daily routine tasks. (Id. pp. 114-115). The Student presented with safety awareness issues, such as difficulty ascending and descending stairs, staying with the group, holding items such as scissors and challenges with motor planning in general that led him to frequently spill things and bump into obstacles. (Id. p. 115).
• • The report stated that “According to the Brigance Inventory of Early Development and information teacher assessment, [the Student] presents with scattered skills across domains.” (Id. at 115). The report notes that he will continue to need an extended school year program and that
• • At this point, with a reduced class size due to Covid-19, and reduced in-person learning, it is difficult to assess how [he] will function in a more consistent, larger group size with increased distractions. He currently exhibits difficulty filtering out environmental distractions within his small cohort group. [He] is responsive to adult support and interventions; he will continue to require instructional modifications and opportunities for repeated practice of skills across various contexts (i.e. individually as well as in a group) in order to move closer to achieving his IEP goals and age expected concepts.” (Id. p. 116).
• • The report concludes that he would not be able to achieve his annual IEP goals by the end of the school year, due to his learning style and apraxia. (Id. p. 117).
• • The Parent located a CPSE approved preschool program called REDACTED (“Preschool II”) that was offering fulltime in-person instruction and requested that the Student be moved to this program. (Tr 480-82). On December 11, 2020 a CPSE IEP meeting (“December 2020 IEP”) was held and the Student was moved to a self-contained class in Preschool II. (Tr 481-82; Motion-Ex. C 121-140). The resulting 12-month December 2020 IEP changed the classroom back to self-contained and recommended the same related services. (P-Motion-Ex. C p. 121). The Student attended Preschool II through June 2021. (Tr 481-82). Preschool II issued a PT progress report on January 18, 2021, an OT progress report in February 2021 and a counseling report dated January 29, 2021. (P-Motion-Ex. C pp. 1-16). The reports noted that he had made a little progress towards some goals and progress toward a few other goals.^[16] (Id.)
• • Right after he returned to Preschool II after December break, a child in the Student’s classroom had COVD. (Tr 484). The Student and his siblings, who all were asymptomatic, also tested positive for COVID. Both his parents became ill with COVID, and his father was hospitalized. (Id.) The Student returned to school in mid-January 2019. (Tr 483-84). During spring 2021 the Student experienced high blood pressure from medication he was prescribed for ADHD. (Tr 486-487). The first medication was discontinued, but he was prescribed another medication for several months which made him drowsy. (Tr 468-87).
• • The Parent testified that when the Turning 5 (“T5”) process started in in spring 2021 she requested a new evaluation from the CSE because she was not sure if the Student needed a special education or a general education setting. (Tr 488). The DOE staff told her that they would not accept the medical diagnosis of ASD (P-Ex. F) to classify the Student with ASD, and instead the testing would have to be performed in the fall. (Tr 490).
• • A social history update was completed on March 3, 2021. (P-Ex. H). The document notes that the Student was being reevaluated to “determine if special education services would be needed once he enters [k]indergarten in September 2021.” The update also noted that the “mother reports being undecided as to whether [the Student] will be going to a non-public school for kindergarten.” (Id. p. 3).
• • On May 4, 2021 a “Turning 5” IEP meeting was held. The May 2021 IEP (“May 2021 IEP”) recommended a 12:1+1 special class in a DOE non-specialized school with the related services of counseling, in a group of five, once weekly for a 30-minute session; OT, individual service, once weekly for 30-minute sessions; OT, in a group of 2; once weekly for 30-minute sessions; PT, individual service, twice weekly for 30-minute sessions; SLT individual service, twice weekly for 30-minute sessions; and SLT, in a group of three, once weekly for a 30-minute session. (P-Ex. W pp. 26-27). The Student’s IEP disability classification was “Speech or Language Impairment.” (P-Ex. W p. 8). The IEP recommends special transportation. (Id. p. 30). The May 2021 IEP states “[The Student] demonstrates deficits in cognitive, academic, speech/language, fine motor/sensory processing, gross motor and socio-emotional skills that preclude him from progressing in the general education curriculum without the support of a special education teacher in a small class setting along with Counseling, Occupational Therapy, Physical Therapy and Speech and Language Therapy.” (P-Ex.W p. 12). The Turning 5 IEP did not recommend an extended year program. (Id. p. 28). The Parent testified that she was told he was unlikely to receive summer services and she should ask about it the following year. (T 492).
• • On June 11, 2021 the DOE issued a PWN that described the recommendations of the May 2021 IEP and stated the school location. (P-Motion-Ex. C p. 19-22). The school listed was REDACTED. (Id. at 19).
• • The Parent stated in an email dated July 22, 2021 that at the T5 meeting the Parent had “reserved a spot in a 12:1:1 class at REDACTED.” (P-Ex. J p. 169).
• • On or about June 21, 2021 the Parent withdrew the Student from Preschool II. (P-Motion-Ex. C p. 159). In an email dated June 21, 2021 the Parent informed the Preschool II that she was withdrawing the Student from the school in order to place him in full day summer camp to facilitate child care. (Id. p. 160).
• • On June 21, 2021 the Parent send a detailed email to DOE CPSE staff member REDACTED to request SEIT services for the Student. (P-Ex. J 148-149). She informed the CPSE that she was removing him from Preschool II because “he is not progressing neither socially, emotionally of behaviorally, in addition to being very reluctant to attend. I will be sending him to day camp, where he thrived last summer. Thus, I am hoping that you will give him the support of SEIT hours to I can finalize a decision in regards to an appropriate placement for him to attend kindergarten in the fall.” (P-Ex. J 6-8).
• • The Parent placed the Student in a summer day camp with general education peers. (Tr 497, 499). For the first four weeks the Student had no SEIT or services, as the SEIT and SLT did not start until at least July 28 2021. (P-Motion- Ex. C-150). The Parent testified that in terms of the SEIT... he did very well in the setting...in a large group setting, so to speak.” He made friends... the most important thing is he came home happy.” (Tr 499).
• • A meeting was held on July 2, 2021 and by July 5, 2021 the Parent’s request for a SEIT and related services had been granted. (Tr 496, P-Ex. J pp. 2, 16). At first the DOE offered five hours of SEIT per week, however the Parent requested more and the Student was approved for a total of 10 hours of SEIT services per week for the summer of 2021. (See Tr 496-98; see generally P-Ex. J). The Parent requested related services for the summer and the DOE was not sure they could provide them for the summer. (Tr 496). Related services were added to the summer 2021 IEP. (P-Ex. B). The Parent testified at hearing that she was told the SEIT services would be “retroactive” to the start of the summer. (Tr 497).
• • On either July 16 or July 28 CPSE meeting was apparently held^[17] and the following recommendations were made in CPSE IEP dated July 28, 2021 (“July 2021 CPSE IEP”): special education itinerant (SEIT) services, 1:1 ten hours weekly, along with the related services of SLT, individual service three times weekly for 30-minute sessions; PT, individual service, twice weekly for 30-minute sessions; OT, individual service twice weekly for 30-minute sessions and counseling, in a group of two, once weekly for a 30-minute session. (P-Ex. B pp. 1).
• • On July 2, 2021 the Parent reached out to the CSE for approval for a neuropsychological evaluation and a psychoeducational evaluation. (Tr 500-501, P-Ex. J p. 1). The emails contained in P-Ex. J contain the Parent’ detailed requests for the two assessments. (P-Ex. J). On July 6, 2021 she forwarded the letter from the neurologist who had diagnosed the Student with ASD and recommended ABA services. (P-Exs. J p. 10; F).
• • On July 9, 2021 the DOE issued a PWN concerning the Parent’s request for a neuropsychological and psychoeducational evaluation. (P-Motion-Ex. C p. 17-18). The PWN states “the request for additional evaluations is refused because there is adequate information regarding the student’s services.” (Id.) The PWN states that “the Committee reviewed the following documents: Turning Five IEP, completed on 5/4/2021; Preschool IEP, completed on 12/11/2020; Turning 5 Evaluation Report: Social History, completed on 3/4/2021; Teacher Report, completed on 1/25/2021; Speech-Language Progress Report, completed on 1/14/2021; Physical Therapy Progress Report, completed on 1/18/2021; Occupation (sic) Therapy Progress Report, completed on 2/2021; Counseling Progress Report, completed on 1/29/2021; Child Outcome Summary Form, completed on 5/4/2021.” (Id. p. 17).
• • On July 16, 2021 the Parent wrote in an email to DOE staff disagreeing with the decision not to have a “full neuropsychological evaluation” and told them she was going to ask for an impartial hearing. (Tr 501, P-Ex. J-19). The DOE then approved a psychoeducational evaluation. (Tr 501).
• • On July 19, 2021 the Parent emailed a letter from the Student’s developmental pediatrician which stated that the Student had ADHD, combined type and multiple developmental concerns. (P-Ex J pp. 25-26). The letter requested that the District provide a “neuropsychological evaluation to facilitate Kindergarten school placement.” (Id.)
• • On July 22, 2021, an administrator for CSE 3 emailed the Parent and stated “We understand you are seeking information for [the Student’s] kindergarten placement in September. We will need to know if he will be attending a private school or a public school to direct you to the corresponding office to review your request.” (P-Ex. J p. 69). The Parent replied via email the same day and stated that she had not yet decided because she was relying on evaluation results to see if “a Special Ed class was truly warranted or if he could go into a general ed setting with support.” (Id.).
• • On July 27, 2021 the Parent informed REDACTED that “I have decided to place my son in [the NPS] next year for kindergarten/pre1a. I would like him to receive pendency services. Please be in touch in regard to how this process works and what is needed on my end.” (P-Ex. J p. 65). The addressee is apparently the SEIT assigned to the Student in July 2022 by the Agency named REDACTED. (P-Motion-Ex. C p. 150).
• • A consent for additional assessments was signed by one of the parents on August 3, 2021. (P-Ex. I). The psychoeducational evaluation took place on August 11, 2021. (P-Ex. G).
• • The DOE psychoeducational evaluation was administered on August 11, 2021. (P-Ex. G). The evaluation does not mention autism. (Id.) The evaluator noted that the Student was easily distracted, “his speech was marked with significant pronunciation and articulation difficulties” and at times his speech was “unintelligible.” (P-Ex. G). The evaluation report concluded that his standardized achievement test scores were below average and both his early reading skills and math skills were weak. (Id. p. 3). The evaluation notes that the Student’s intellect fell in the moderately below average range, with verbal intelligence in the below average range and nonverbal intelligence in the moderately below average range. (Id.)
• • On August 26, 2021, pursuant to the psychoeducational evaluation, another IEP meeting was held. The IEP (August 2021 CSE IEP”) recommended the same program and services as the T-5 May 2021 IEP: 12:1+1 classroom in a DOE community school, with the related services of counseling, group service once weekly for 30-minutes; OT individual services once weekly for 30-minutes; OT, group of 2; once weekly for 30-minutes; PT, individual service, twice weekly for 30-minutes; SLT individual service, twice weekly for 30-minutes sessions; and SLT, in a group of three, once weekly for 30-minute session. (Motion-Ex. C pp. 89-90; P-Ex. W pp. 8-33).
• • On August 26, 2021, PWN was issued with the recommendations contained in
• • the August 2021 IEP. A separate school location letter was not included, nor did the PWN contain the name of the school building where the Student was to receive his recommended program. (P-Motion-Ex. 151-154).
• • The Parent testified she “wanted [the Student] in the least restrictive environment.” (Tr 506). She had placed him in camp with support, to find out “Is he going to sink or swim? And he swam.” (Tr 507). When she “saw that he could handle it, that’s when I decided to send him to private school.” (Id.)
• • On September 1, 2021 the Parent filed the DPC. (P-Ex. A).
• • In late August 2021 the Student enrolled in NPS. (Tr 502-503). The school day started at 8:00 am and ended at 3:30 pm. He attended a general education class with 27 students, one teacher and two assistants. (Tr 286-287, 292). Approximately four or five other students received services, and there were two SEITs in the classroom, in addition to the Student’s SEIT. (Tr 287, 289). The SEIT testified that a typical school day scheduled included: tabletop, morning prayer, morning circle time, recess, snack, centers and projects, lunchtime, story time, second recess, afternoon circle time, centers, recess, snack and centers. (Tr 392-93).
• • The Student received his SEIT, counseling, OT, PT and SLT through pendency (“Pendency Program”). (Tr 503; P-Ex. B p. 16). He did not receive his full mandate of SLT and received no PT via pendency. (Tr 50).
• • Starting on October 20, 2021, the Agency provided 1:1 ABA support services. (Tr 544). The BCBA testified the Student received a collaborative ABA program consisting of a SEIT provider^[18] and a 1:1 behavioral support provider supervised by BCBA supervision and provided at the NPS (“Unilateral Program”). (Tr 288-289, 390-393, 397). The SEIT is an educated and experienced provider. (P-Ex. O). She provided services for two hours daily, five days per week, with pull-out services for academic delays and push-in services for focus, eye contact and social skills. (Tr 390, 397). The BCBA, an experienced LBA/BCBA, developed the program goals. (Tr 286; P-Ex. P). The BCBA stated the Student received 23 hours of 1:1 behavioral support per week. (Tr 361). The BCBA explained that the SEIT was present to “support [the Student] specifically....based on what the class was doing.” (Tr 340). The behavior support professional “really had the same role as the SEIT...to support [the Student] within the classroom setting based on how the teacher ran the class.” (Id.)
• • The BCBA testified in detail about the ABA component of the Unilateral Program and explained that it is an evidence-based data-driven strategy for teaching children, including children with ASD. (Tr 282-86). The BCBA testified that Exhibit Q was a compilation of the Student’s ABA targets for the school year. (Tr 291). The targets included letter-sound identification, sight words, memory retention, extinguishing cheating in games with peers, extinguishing sulking, use of pronouns, listening comprehension, peer identification, engaging with peers during recess, initiating play, sharing a play idea, eye contact, reduce touching other boys to gain attention. (P-Ex. Q). The report notes that the Student mastered approximately 27 targets during the 2021-2022 school year. (Id. pp. 1-2). She explained the use of charts to map the Student’s progress with each target. (Tr 294-310, 412). The staff from the Agency took ABA data using an app provided by the BCBA. (Tr 415).
• • The BCBA testified that she developed an FBA before she implemented the ABA program. (Tr 327-335, P-Ex. R pp. 2-5, 20). The BCBA interviewed the classroom teachers, SEIT provider and the special education coordinator of the NPS. (P-Ex. R p. 1). According to the FBA, the classroom teachers reported, two weeks following the start of the 2021-2022 school year, that the Student had difficulty acclimating to the classroom environment, did not appear to follow what was going on the classroom, was not engaging with peers and could not follow simple instructions provided by the teachers. The teachers noted that the Student had "difficulty with his speech and this is setting him apart from his peers as he is unable to initiate communication with his peers, nor is he able to respond to peers thus making him more removed from assessing peers in a social context as they are not initiating interaction with him.” (P-Ex. R p. 1). They expressed that he needed 1:1 support in the classroom for “everything.” (Id. p. 2). The noted that he had hit other students twice since the start of school and he presented with escape behaviors like asking to go to the bathroom or complaining of a backache when work was assigned. (Id.) The teachers also noted that he was self-directed and “completely not in tune with the lesson being taught. He is often seen laying on the floor, rolling around on the floor wiggling around during circle time and not facing the teacher or participating.” (Id.)
• • The FBA reported that the Parent described the Student as a “sweet child who tries to please, yet struggles with his behavior, self-regulation, communication, play and social interactions with peers. (P-Ex. R p. 2). The Parent reported that the student “exhibits severe behaviors at home including, property destruction, aggression in the form of hitting and fighting.... the most recent maladaptive behavior... was threatening others.” (Id.) She also described issues with ADLs. (Id.)
• • The BCBA performed a formal observation and data collection which is described in the FBA. The class was sitting on the carpet for story time, and the BCBA noted the following behaviors of the Student: lying down and rolling around on the floor, crawling on the carpet, picking at his skin, making angry faces, talking to himself, touching other students, and getting close to other students, requiring prompting to join the line, he walked on the wrong side of the stairs as he could not follow the teacher’s directions, he did not engage with peers in class, stood on the side while on the playground and could not put his shoe without the teacher’s help. (Id.) He laid down in front of the slide and would not move, blocking other students from using the slide while ignoring requests by two boys to move so they could use the slide, was then kicked by a boy, whom he continued to ignore. (Id.)
• • She determined that the function most of his behavior was escape motivated. (Tr 332-33). The BIP was developed based on the FBA. (Tr 333-335). She conducted an Autism Treatment Evaluation Checklist assessment (“ATEC”) with the Parent on September 9, 2021. (P-Ex. R p. 10). The Student received a score of 45 which “places him in the high moderate range.” (Id.) The BCBA conducted the Verbal Behavioral Milestones Assessment and Placement Program (“VB-MAPP”) in September 2021 and again toward the end of the 2021-2022 school year. (Tr 311-326, P-Ex. R p. 11). The results demonstrated that he made progress during the school year, including a “big reduction in behaviors.” (Tr 326).
• • The BCBA testified that the Student has “really poor eye contact.” She stated, “Very simply, [the Student’s] eye contact is very poor” and “he struggles with it...when I go in... I need to prompt that eye contact...It does not come naturally for him.” (Tr 307). She explained that “lack of eye contact, is something that we often see with children with autism,.... it’s getting better, but it’s not where it needs to be.” (Tr 307). The BCBA testified about the Student’s eye contact program targets and how his eye contact regressed after vacations. (Tr 308). The SEIT testified that his eye contact was “basically nonexistent” in September 2021. (Tr 389). Currently he “makes a little bit of eye contact. It’s fleeting. But he needs a lot of prompting of eye contact. He doesn’t necessarily look at people when he speaks to them.” (Tr 389).
• • The Student has aggressive behaviors in the home setting. (P-Ex. Q p. 1). The ABA progress/target report stated that he “engages in serious maladaptive behaviors at home including aggression in the form of biting, hitting, breaking things, he struggles with self-regulation. These aggressive behaviors occur at home only and are not seen in the school setting.” (Id.; see also Tr 292; P-Ex. W pp. 10). The BCBA indicated that the Student would hit his classmates at the start of the school year but noted that behavior had been “extinguished.” (Tr 292). The SEIT testified that she worked with the Student at home a few times during August 2022, when his summer camp was shut down for a few days. (Tr 411). She saw him have a tantrum for the first time, while in his home, and the Parent told her that “he does that all the time at home.” (Id. at 412). The Parent testified that the Student did not engage in aggressive behavior at school. (Tr 626). The BCBA recommended 20 home-based hours of ABA services. (Tr 335).
• • According to the ABA report, the Student made progress with all of his ABA targets. (See supra ¶ 40, P-Ex. Q). The SEIT testified that the Student made progress with focus, socialization, articulation skills, reading, math, writing and comprehension. (Tr 395-410, 422-424). He still has great difficulty with eye contact. (Id.) The Parent testified that the Student has made progress with learning letter sounds and blending sounds, how to differentiate upper and lower-case letters, he can count, he can write his name and draw a picture that has a story. (Tr 621-23). He improved his attending skills using timers and rewards. (Tr 625). The Student’s socialization at school has improved from parallel play to cooperative play to initiating play. (Tr 626-27).
• • The Agency progress report at Exhibit N is unnamed, undated, unsigned and does not have an author listed. (P-Ex. N). The BCBA testified that Exhibit N is the SEIT progress report. (Tr 337-338). This progress report reflects the progress the Student made during the 2021-2022 school year and describes his continuing difficulties. (P-Ex. N).
• • The BCBA recommended that the Student should be placed in a small classroom with typical peers, with a program of ten hours of SEIT along with 25 hours of push-in 1:1 ABA support, and two weekly hours of BCBA supervision. (Tr 342-343; P-Ex. R p. 22).
• • The Parent testified that she secured PROMPT^[19] speech therapy for the Student in February 2022. (Tr 652). The Parent noted that the BCBA had recommended PROMPT therapy for him. (Tr 510). The Parent recalled that REDACTED had received similar therapy at Preschool I, but “nobody went near [the Student’s] mouth for two years...between the remote and being masked.” (Tr 511). The Student initially attended PROMPT therapy twice weekly, then once weekly. (Tr 513-14). As of November 2022, the Student was still receiving services. (Tr 653). The PROMPT SLP has training, has completed Level 2 of the therapy and she has been using it for more than ten years. (Tr 573, 574). She explained that that PROMPT therapy is:

“using your hands on the child’s face in order to cue them for the different speech sounds and within words. So it’s not just – the traditional approach, like an articulation therapy approach would be just trying to remediate through sound only by showing one sound at a time. Whereas PROMPT is motor planning for the whole word. So you’re actually putting the whole – you’re prompting the whole word so that they know what sounds to do in what order.” (Tr 572).

• • She testified that that Student made “tremendous progress. He went from, in February [2022] to being unintelligible to all” to “speaking intelligibly.” (Tr 575; see also P-Ex M). He does make some errors, but he is “highly intelligible at this point.” (Id.) By September 2022 the PROMPT SLP began to also work on formulating sentences, comprehension, vocabulary, decoding and blending. (Tr 577). She uses an “eclectic combination” of strategies or methodologies because “every child is different.” (Tr 574). She attempted to work with the Students in-school speech therapist to carry-over some of the work, but the therapist went on leave. (Tr 579-81). At hearing she testified that she didn’t notice any kind of eye contact issue at the time of the hearing nor when she started working with the Student in February 2022. (Tr 588). She said “it wasn’t jumping out at me any kind of problem with eye contact. But he is definitely fine with me now. That – that’s not an issue (Tr 588).”
• • The Parent testified that the PROMPT therapy has been a “complete game changer.” (Tr 652). She stated the progress he’s making with the PROMPT therapy is “off the charts.” (Tr 512). The therapist charged $60 for a 30-minute session and $80 for a 40-minute session. (Tr 653-54).
• • The BCBA testified that the Student has made “significant progress” since he started PROMPT. (Tr 364). The BCBA suggested that the Parent implement PROMPT therapy. (Tr 357). The Student is becoming “much more intelligible, meaning that his peers are able to understand him. His providers are able to understand him much better now, and he is using more words, he’s communicating more, because it’s easier for him.” (Id.) “He was “unable to be understood at the beginning of the school year. (Tr 357). The SEIT testified that since the Student has started seeing the PROMPT SLP “his speech is much clearer now and it’s much easier to understand what he’s saying.” (Tr 401). She noted that the articulation delays are not completely resolved, but they “have improved greatly. There are a few moments when they’re a little unclear, but much better.” (Tr 401-402). The SEIT also testified that the Student’s ability to have reciprocal conversations with peers and adults have improved. (Tr 402). At the start of the year the Student would attempt to have a conversations with his peers but “it was hard for the peers to understand him” because “they didn’t understand exactly what he was saying.” (Id.)
• • The NPS is a private religious school. Approximately 10-15 minutes of the school day were allotted to prayer. (Tr 391). The children learned REDACTED. (Tr 409, 432). The SEIT testified that the students learned REDACTED through activities and stories during the daily circle time, morning center time and project time. (Tr 432-443).
• • The Student attended day camp during the summer of 2022, with ABA push-in, pendency SEIT and BCBA supervision. (628-30). The Parent testified that the DOE failed to provide him with any SLT, OT or PT under pendency during the summer of 2022. (Tr 636-37).
• • The Parent testified that during the 2021-2022 school year the Student’s in-home behavior had improved, although he still engaged in tantrums and aggressive behavior, particularly when he was frustrated about being unable to express himself. (Tr 649). In September of 2022 the Parent moved him to a new school where his pendency mandate continued and his ABA push-in also continued. (Tr 629). The new school has a smaller class with more adults. (Tr 630).
• • The Neuropsychologist conducted an independent neuropsychological evaluation (“Report”) on May 26, 2022. (P-Exs. U, V, X). She diagnosed the Student with a Language Disorder and “by history” Attention Deficit/Hyperactivity Disorder, Inattentive Presentation and Autism Spectrum Disorder with accompanying language impairment and without accompanying intellectual impairment. (P-Exs.V p. 11; X p. 4). The Neuropsychologist stated in her affidavit that the purpose of her evaluation was to access the Student’s “cognitive strengths and weaknesses, to confirm the Autism diagnosis and/or make other diagnoses if warranted, and to assist with educational planning and parental strategies.” (P-Ex. X p. 3 ¶ 16). She conducted interview with the Parent and the BCBA, reviewed documentation, and personally assessed the Student with a number of tests and two questionnaires. (Id. p. 3 ¶¶ 17-18). The report is dated August 4, 2022. (P-Ex. X p. 3, ¶ 12).
• • The Neuropsychologist reported “Due to his history of apraxia, [he] displayed notable areas of weakness in his language skills. His phonological awareness was impaired.” (P-Exs. V p. 9; X p. 4). She noted that the Student “displayed poor expressive language skills and he struggled to produce verbal language with appropriate syntax and structure. Nonetheless, [he] exhibited intact receptive language skills, and he is able to adequately process information presented verbally. Therefore, [he] meets criteria for a DSM-5 diagnosis of a Language Disorder, with specific difficulties with expressive language, and he requires speech-language therapy to remediate his speech delays.” (P-Ex. V p. 10). The Student displayed weakness in reading comprehension, math and writing. (P-Ex. V p.10).
• • The Report noted that his records indicated delays in the areas of pragmatic speech expressive language, articulation, emotional regulation, socialization, executive functioning and ADL. (P-Ex. V p. 9). Based on testing, she noted that the Student displayed average fluid reasoning and visual spatial skills, with low average verbal skills. (P-Ex. V at 9.) His receptive language skills were intact. P-Ex. V p. 10).
• • The Neuropsychologist reported that the Student saw a nurse practitioner named REDACTED for an initial consultation for developmental delay. (P-Ex V p. 1). She noted that REDACTED had “evaluated him as a nurse practitioner.” (Id.) Based on this consultation, REDACTED “confirmed the diagnosis of apraxia and also reported that he met criteria for an autism spectrum disorder with behavioral disturbances. Notably, no formal assessment beyond this observation was conducted to determine his diagnosis of autism spectrum disorder.” (Id.)
• • The Report noted that while the Student’s attentional difficulties did not rise to the level of a disability while he was taking his prescribed medication, “the symptoms have been present in the past and they should be monitored in case they worsen and negatively affect his academic performance.” (Id. p. 10).
• • The Neuropsychologist noted:

In terms of reciprocal social interaction, [the Student] was generally cooperative and engaged with me. He used appropriately modulated eye contact. He also exhibited a range of facial expressions during the evaluation, such as showing excitement and anger. [He] made few social overtures to me, but he consistently responded to his name. When playing, he showed me what he was playing with and initiated spontaneous joint attention. He displayed observable enjoyment during interactions with me. During free play, [the Student] was able to engage appropriately in representational play, although he demonstrated few instances of appropriate reciprocal or symbolic play. In the area of restricted and repetitive behaviors, [he] exhibited no repetitive hand/finger movements. With regard to other abnormal behaviors, [he] did not appear anxious. (P-Ex. V p. 9)

• • The Report stated “Overall, [the Student] does not [meet] criteria on the ADOS for a diagnosis of Autism Spectrum Disorder. He demonstrates deficits in his language skills, communication, and social interactions, but this was largely due to his language difficulties. However, [he] did not display fixated interests or sensory seeking behaviors. Overall, [his] behaviors and interactions were generally consistent across testing modalities.” (P-Ex. V p. 9).
• • While some of this may sometimes look like an Autism Spectrum Disorder it could also be related to [his] significant language deficits, tendency to avoid some work and he may seek sensory input while he attempts to distract himself from academic demands. He reportedly has had difficulties with many symptoms of ASD over the course of this year, but with individual supports, many of these symptoms have subsided and were not observed during the current assessment. Nonetheless, an ASD diagnosis should be considered as by history given his long reported symptoms of ASD. As his language and attention needs are addresses, a diagnosis of ASD should be reconsidered.” (P-Ex. V p. 10).
• • The Neuropsychologist recommended a program and placement consistent with the program and placement the Student received in 2021-2022, including a class with peer models and 1:1 push-in teacher services and ABA. (P-Exs. V p. 11; X p. 4). She also recommended compensatory education for any time that these services were not in place during the past three years. (Id.) She made some recommendations for additional services for the following school year including: (a) an increase in SLT services, to 4x45 minutes per week; and (b) in-school and after-school individual and group counseling. (P-Ex. V at 11-12). Further, she found that the diagnoses of ASD, as well as one of a Specific Learning Disability, should be revisited once he has received additional remediation. (P-Ex. V at 10).
• • The Neuropsychologist included a detailed classroom observation:

[The Student] was observed in his kindergarten class on June 9th, 2022 from 10:00 to 10:30 am. There were 25 students, one teacher, two teaching assistants, and one paraprofessional in the classroom. At the beginning of the observation period the class was finishing up their snacks. [He] had finished his snack and was seated at a table with four other students. Although the rest of the students were chatting, [he] was not engaging in conversation but was watching closely. At this point, a teacher entered the room to review REDACTED with students individually. He called [him] over, and [he] enthusiastically went. [The Student] followed directions and read letters off of the sheet. After three minutes the teacher dismissed him and [the Student] returned to the table. [He] sat and turned to two students who were seated on the floor, tying their shoes. [He] asked one of the children if he knew REDACTED. The other child did not respond so [he] turned around and began quietly playing with his hands. At this point the teacher announced the end of snack. When prompted, [he] threw his garbage away and returned to the table.

The teacher introduced the next activity. The class was working on completing a drawing of a person planting seeds. [The Student] paid attention to the teacher as she was speaking and was able to remain seated without fidgeting. In addition to the blank worksheets, the assistant teacher passed out a completed worksheet for the students to use as reference for their own work. The assistant teacher directed the students to write their name on the back of the worksheet, using a different color for each letter. When [he] received his worksheet, he flipped the sheet over and wrote his name using different colored crayons. Most of his classmates wrote their names using one color. [He] then began drawing. He frequently referred back to the teacher-completed version to guide his work. He was drawing slowly and deliberately. [His] teacher put on music, while the rest of the class was singing along, [he] remained quiet and focused on completing his worksheet. [His] paraprofessional was seated next to him throughout the duration of the observation period but was unobtrusive and interacted with him minimally.

• • The PROMPT SLP submitted several “paid-in-full” invoices. (P-Exs. L, Z, AA).
• • The Administrator testified at hearing that the DOE has not yet paid for the Student’s pendency SEIT services for the 2021-2022 school year. (Tr 548-49). He stated that from September 2021 through June 2022 the Agency provided the Student with 307 of SEIT hours, 664 hours of ABA services, and 75 hours of BCBA supervision. (Tr 543-44). During the summer of 2022 the Agency provided 56.5 hours of SEIT services, 135 hours of ABA services and 12 hours of BCBA services. (Tr 548; P-Ex. BB).
• • The Agency charges $195 per hour for SEIT services, $180 per hour for ABA support services and $350 per hour for BCBA supervision services. (Tr 543-44; P-Ex. BB). He explained that if an ABA service provider was a certified teacher with behavioral training the hourly rate would be $180 per hour. The Agency charges $180 per hour for a noncertified teacher with behavioral training. (Tr 545). The Administrator testified that the Agency SEIT providers approximately $75 or $85 per hour plus “fringe benefits” that increases the rate by approximately 10%, for a total of $93.5 for a provider earning a base of $85. (Id.) BCBA supervisors are paid $180 per hour plus 10%. ABA providers who are certified special education teachers are paid $110 per hour while other ABA providers receive $75 per hour. (Tr 545). The Student’s ABA providers received $70 per hour. (Tr 558). Administrator did not know whether the Student’s ABA providers were teachers. (Tr 560). He did not know whether the ABA providers were college graduates. (Tr 562).
• • The Administrator testified that if the DOE does not award the Parent of the ABA or BCBA supervision hours, the Parent would be responsible to pay for them. (Tr 548).
• • On June 15, 2022 the Parent signed an agreement (“Agreement”) with the Agency. (P-Ex. CC). The Agreement is for the 2022-2023 school year and states that the Agency will provide 1:1 SEIT services, Supervision by a BCBA/LBA/Senior Certified Special Education Teacher and 1:1 Behavioral Support Services for the Student for the 2022-2023 school year. (Id. p. 1).
• • The Agreement also contains an acknowledgement that the Agency provided services to the Student during the 2021-2022 school year. (Id.) The Agreement states “In addition, the Parent ratifies the agreement that [the Agency] had agreed to provide the following services during the 2021-2022 school year: 1:1 behavior support with ABA strategies (664 hours) at a cost of $180 per hour; BCBA Supervision: 75 hours at a cost of $350 per hour and 1:1 special education teacher services pushed into the student’s school up to 400 hours at a cost of $195 per hour. Those services were provided. (Id. p. 3). There is no contemporaneous contract in the record for the Agency services for the 2021-2022 school year.
• • The Parent testified that she paid approximately $8,000 to 9,000 for tuition at the NPS. (Tr 648). There is no enrollment contract in the record. There are no attendance records.
• • The Parent is a special education teacher employed by the DOE in the District [REDACTED] home instruction office. (Tr 459-60). She previously worked as a SEIT. (Id.)

CONCLUSIONS OF LAW

IDEA and FAPE The IDEA (20 U.S.C. §§1400-1482) was enacted primarily (1) to ensure that students with disabilities have available to them a free appropriate public education which is designed to meet their individual needs and prepare them for further education, employment, and independent living; and (2) to protect the rights of students with disabilities and the parents of such students. (20 U.S.C. § 1400(d)(1)(A)-(B); see generally, Forest Grove v. T.A., 557 U.S. 230, 239 (2009); Board of Educ. v. Rowley, 458 U.S. 176, 206-207 (1982)). A FAPE consists of special education and related services designed to meet a student’s unique needs which are provided in conformity with a written individualized education program. (See 20 U.S.C. § 1401(9)). 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 or the IEP is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” (See Rowley, at 192).

The Supreme Court recently clarified the substantive standard for determining whether a child’s IEP offered a FAPE. The Court held that “[t]o meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances.” (Endrew F. ex rel. Student F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988, 1001 (2017)). The Court emphasized the text of the IDEA itself and stated:

A focus on the particular child is at the core of the IDEA. The instruction offered must be “specially designed” to meet a child’s “unique needs” though an “[i]ndividualized education program” §§1401(29), (14) (emphasis added). An IEP is not a form document. It is constructed only after careful consideration of the child’s present level of achievement, disability and potential for growth. (Endrew F. at 999).

The Court continued “[A child’s] IEP need not aim for grade-level advancement. But his educational program must be appropriately ambitious in light of his 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. at 1000).

An appropriate IEP must include: (a) a statement of the child’s present level of academic achievement and functional performance and how the child’s disability affects the child’s involvement and progress in the general education curriculum; (b) a statement of measurable annual academic and functional goals; (c) how a child’s progress towards those goals will be measured; (d) a statement of the special education and related services to be provided to the child; (e) an explanation of the extent to which the child will participate with nondisabled students in school; and (f) the projected date for the start of services and the duration. (34 CFR § 300.320(a); 8 NYCRR 200.4(d)(2)). An IEP must be developed collaboratively, by a team that includes the child’s parents, specific teachers, a school district representative and someone who can interpret evaluations. (34 CFR § 300.321, Educ. Law §4402(a)). The “core of the statute... is the cooperative process that [IDEA] establishes between parents and schools.” (Schaffer v. Weast, 546 U.S. 49, 53 (2005)). The Second Circuit has stated that a district “must produce, in writing, an [IEP] that ‘describes the specially designed instruction and services that will enable the child to meet’ stated educational objectives and is reasonably calculated to give educational benefits to the child.” (M.W. ex rel S.W. v. NYC Dept. of Educ., 775 F.3d 131, 135 (2d Cir. 2013) (Quoting R.E. v. NYC Dept. of Ed., 694 F.3d 167 (2d Cir. 2012)).

“The importance Congress attached to the procedural safeguards [in IDEA] cannot be gainsaid.” (See R.E. at 189-190). A procedural violation of the IDEA entitles a parent to relief only if it: “(I) impeded the child’s right to a [FAPE]; (II) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a [FAPE] to the parents’ child; or (III) caused a deprivation of educational benefits.” (20 U.S.C. § 1415(f)(3)(E)(ii); see P. v. West Hartford Bd of Educ., 885 F.3d 735, 748-749 (2d Cir. 2018); citing A.M. v. N.Y. City Dep't of Educ., 845 F.3d 523, 535 (2d Cir. 2017). “Multiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not.” (See R.E., 694 F.3d at 190.

It is important to note that school districts are not required to "maximize" the potential of students with disabilities. (Rowley, 458 U.S. at 199; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003)). The IDEA 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)). In addition, a child with a disability is entitled to a FAPE in the least restrictive environment (“LRE”). (20 U.S.C. §1401(9) and 34 CFR §300.17. See Mr. and Mrs. P. v. Newington Bd. of Educ., 546 F.3d 111, 114 (2d Cir. 2008); Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119 (2d Cir. 1998)). Children with disabilities must be educated with children who do not have disabilities to the maximum appropriate extent. The LRE mandate requires the determination of “whether education in the regular classroom, with the use of supplemental aids and services, can be achieved satisfactorily for a given child, and, if not, then whether the school has mainstreamed the child to the maximum extent possible.” (Mr. and Mrs. P. at 114).

Burden of Proof The District bears the burden of proof during an impartial hearing, except in a tuition reimbursement case, where the Petitioner bears the burden of proof regarding the appropriateness of a unilateral placement. (Educ. Law §4404(c)(1)). The burden of proof in this matter shall be met upon a fair preponderance of the evidence, which requires that the trier of fact find that the existence of a fact is more probable than its nonexistence.^[20] If the evidence is evenly balanced, the party with the burden of persuasion must lose. ^[21]

Tuition Reimbursement In Burlington School Comm v. Dept of Education, 471 U.S. 359 (1985), the Court determined that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA. In cases where the relief sought is tuition reimbursement, the applicable three-prong analysis is contained in Burlington and its progeny. (See Florence County School Dist. Four v. Carter, 510 U.S. 7 (1993)). When applying a Burlington/Carter analysis it is necessary to determine if (1) the school district failed to offer and/or provide a FAPE to the Student; (2) the services selected by the Parents were appropriate; and (3) the equitable considerations support the parents’ claim.

The first part of the Burlington/Carter analysis considers whether the District has demonstrated that it provided a FAPE. The second prong of Burlington/Carter shifts the burden of proof and persuasion to the Parent, who must demonstrate that their unilateral placement of the Student is appropriate. (Educ. Law. 4404(1)(c)). The private placement selected by the parent does not have to be an approved special education school, (See Carter, 510 US 7 (1993)), nor does it have to meet the strict requirements of a special education placement by a public school district. However, a private placement must be tailored to meet the student’s individual needs. “A unilateral private placement is only appropriate if it provides education instruction specifically designed to meet the unique needs of a handicapped child.” (Gagliardo v. Arlington Central School District, 489 F3d 105 (2d Cir. 2007); Frank G. v. Board of Education, 459 F3d 356, 365 (2d Cir. 2006) (quoting Rowley, 458 U.S. at 188-89).

The final part of the Burlington/Carter analysis determines whether equitable considerations support the award of tuition reimbursement. The IDEA permits a court to limit or deny reimbursement if the parents fail to provide notice of the student's private school enrollment in a timely manner, fail to make the student available for an evaluation, or act unreasonably in the course of the IEP's development. (See 34 CFR 300.148(d)); E.M. v. New York City Dep’t of Educ., 758 F.3d 442, 461 (2d Cir. 2014). In determining whether equitable considerations support a request for reimbursement, the courts will consider whether the parents have cooperated with the school district throughout the process to ensure that their child receives a FAPE. Bettinger v. New York City Bd. Of Educ., 2007 WL 4208560 (S.D.N.Y. November 20, 2007); Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656 (S.D.N.Y. 2005); see also S.W. v. New York City Dept of Educ., 646 F. Supp. 2d 346, 361-63 (S.D.N.Y. 2009). Excessive tuition or frequency of services may underpin a reduction in public reimbursement or payment for unilaterally obtained special education. (E.M. at 461).

Direct Payment of Tuition/Connors The Parent has requested a remedy of retroactive direct payment in this matter. The Second Circuit has held that an IHO, SRO or court may order a school district to directly pay retroactive tuition when the parent has signed a contract and is legally obligated to pay the private tuition but is unable to do so due to lack of financial resources. (E.M. v. New York City Dep’t of Educ., 758 F.3d 442, 453 (2d Cir. 2014); See also Mr. and Mrs. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 406 (S.D.N.Y. 2011)). ^[22] E.M. v. Dep’t Educ. states “Indeed, where the equities call for it, direct payment fits comfortably within the Burlington-Carter framework.” (758 F. Supp. 2d at 453). These direct funding cases are often referred to as “Connors” cases after Connors v. Mills, 34 F. Supp. 2d 795 (N.D.N.Y.).

Compensatory Education

Impartial hearing officers have broad discretionary authority to grant such relief as they deem appropriate for violations of FAPE. (20 U.S.C. §1415(i)(2)(c)(iii); See Burlington, 471 U.S. 359 (1985). Forest Grove Sch. Dist. v. T.A., 557 U.S. 230 (2009); Frank G. v. Bd of Educ., 459 F.3d 356, 371 (2d Cir. 2006)). The purpose of an award of compensatory education is to provide a remedy for denial of a FAPE. (see E.M v. New York City Dep’t of Educ., 758 F.3d 442, 451 (2d Cir. 2014). Compensatory education “should aim to place disabled children in the same position they would have occupied but for the school district’s violation of the IDEA.” Reid v. District of Columbia, 402 F.3d 516, 43 IDELR 32 (D.C. Cir. 2005). “Compensatory education involves discretionary, prospective, injunctive relief crafted by a court [and/or hearing officer] to remedy what might be termed an educational deficit created by an educational agency’s failure over a given period of time to provide FAPE to a student.” Id. at 523 citing G. ex rel. RG v. Fort Bragg Dependent Schls, 343 F.3d 295, 309, 40 IDELR 4 (4th Cir. 2003). A hearing officer may choose to award compensatory education in a 1:1 “quantitative” approach or using a “qualitative” approach which ensures that the ultimate award is tailored to the student’s unique needs.^[23]

In New York State, the burden of production and persuasion regarding the need for compensatory education is on the district, which is required to address the issue of compensatory education by describing its views, based on a fact-specific inquiry set forth in the evidentiary record, regarding an appropriate compensatory education remedy that would most reasonably and efficiently place the student in the position that they would have been in but for the denial of FAPE. N.Y. Educ. L. § 4404(1)(c); see M.M. v. New York City Dep’t of Educ., 2017 WL 119485 at 4 (S.D.N.Y. Mar. 30, 2017) (DOE has burden of proof on issue of compensatory education); see also Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 457 (2d Cir. 2015). Although the Second Circuit has not explicitly addressed the issue of whether payment of tuition for a unilateral placement and compensatory education can be combined as a remedy for a deprivation of FAPE during the same school year, the Office of State Review has disfavored this combination.^[24]

Independent Educational Evaluations and Education Records

Under federal and State law, parents have the right to obtain an independent educational evaluation at public expense if the parent disagrees with an evaluation obtained by the school district. (20 U.S.C. 1415(b)(1); 34 CFR 300.502; 8 NYCRR 200.5(g)). An independent educational evaluation is defined by under the IDEA as “an individual 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)(3)(i)) 8 NYCRR 200.1(z)). If a parent requests an IEE the school district must, without unnecessary delay, ensure that an IEE is provided at public expense or initiate an impartial hearing to establish that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the district’s criteria. (34 CFR 300.502(b)(2)(i)-(ii); 8 NYCRR 200.5(g)(1)(v)). A parent is entitled to only one IEE at public expense each time the district conducts an evaluation with which the parent disagrees. (34 CFR 300.502(b)(5); 8 NYCRR 200.5(g)(1)).

Parents have the right to review all records that a school district possesses in relation to their child. (20 USC 1415(b)(1)).

ANALYSIS

FAPE

The threshold issue in this case is whether or not the District provided or offered a FAPE for this student during for the 2019-2020, 2020-2021 and 2021-2022 extended school years. The DOE asserted, inter alia, that it provided a FAPE for the Student for the three years at issue and that the unilateral placement/program was not appropriate for the Student. The DOE cross-examined the witnesses and made arguments during motion practice and at hearing. However, the DOE did not submit documentary evidence nor call witnesses while the Parent submitted more than 500 pages of documentary evidence and the vast majority of the 671page record. The burden of proof and persuasion is on the District, and it failed to carry the burden. This IHO therefore finds that the District failed to provide a FAPE for the three years at issue.

The denial of FAPE triggers a continued analysis of the request for tuition reimbursement and/or direct payment under the Burlington/Carter framework. The denial of FAPE, however, was far from complete and does not serve as a basis for a default judgment granting all of the Parent’s requested remedies or orders.

Burlington/Carter The Student’s Unilateral Program is a combination of various services, providers, and methodologies chosen by the Parent and provided within and in concert with the program at a parentally chosen general education private school.^[25] (Findings ¶¶ 40, 42). The Parent, SEIT and BCBA testified that the Student made progress during the 2021-2022 school year, in terms of his behavior, ability to focus, reading, writing, math and, most significantly, his expressive language. (Findings ¶¶ 43, 50; see also P-Exs. N, Q, R.). The BCBA and the Neuropsychologist both testified that the Unilateral Program was appropriate. (Tr Findings ¶¶ 52, 67). The NPS, however, was in no way tailored or designed for the Student. He attended a classroom with 26 other five- and six-year-old boys who took part in a minimum of fourteen scheduled activities throughout a typical day. (Findings ¶ 40). There is no evidence of any kind of individualization performed by or with the NPS. The most integral part of the Unilateral Program, the school program and location itself, fails to meet the Burlington/Carter test of appropriateness. The Parent’s request for reimbursement or direct pay under this framework must be denied.

The point of the Burlington/Carter and Connors cases is to ensure that school districts can’t avoid providing FAPE to disabled students by simply “kicking the can down the road” while yet another school year rolls by. Parents have the right to take both the initiative and the risk to engage in self-help by locating and utilizing quality privately sourced educational programs that will enable their children to make progress. The standard for an “appropriate” program under Burlington/Carter is more flexible than the “appropriate education” standard for FAPE as provided by a public school district. The remedies granted by the tuition reimbursement and direct-pay models empower parents to access timely real-world educational solutions for their disabled children.

The tuition reimbursement and direct-pay frameworks are not meant to enable parents to build a perfect special education program for their child. The “appropriate” standard for FAPE does not include everything a loving parent would want for their child. Similarly, a privately obtained “appropriate” program should not be required to maximize the progress of a student or provide a student with everything their loving parent desires, despite the fact that a district may not have offered a FAPE.

In the instant matter, the Unilateral Program coupled with the Pendency services created an impressive, immersive 1:1, and yes costly, special education construct devoted only to the Student and his progress.^[26] In her closing brief, the Parent asserts a “unique argument” that the private school placement enabled the Student to “receive two critical aspects of his program and services that he needed for a FAPE: (a) access to typical peers; and (b) push-in ABA.” (IHO Ex. VIII pp. 20-21). The record demonstrates instead that the Parent’s decision to implement 1:1 ABA support services with BCBA supervision has instead enabled the student to attend a private general education kindergarten. This is certainly not the kind of self-help the Courts envisioned, especially when a school district has made obvious efforts to develop an appropriate program for a particular student, such as this Student, only to be stymied by a world pandemic and procedural issues.

Equitable considerations

Although it is not necessary to address “Prong III” of the Burlington/Carter framework, equitable considerations exist that would have precluded the award all or a portion of the cost of services and/or tuition under Burlington/Carter. The record reflects that the Parent did attend all IEP meetings during all years all issue. The Parent did inform the District, during the spring and summer of 2021, that she was not sure whether she would place the Student in a private or public setting and needed neuropsychological and psychoeducational evaluations to enable her make the decision. (Findings ¶¶ 19, 28-32, 35-37). The Parent notified the District that she had chosen a private school via the DPC which was filed just a few days following the final IEP meeting held on August 26, 2021. (Findings ¶ 40; P-Ex. A). However, a month earlier, the Parent had written in an email to third party “I have decided to place my son in [the NPS] for kindergarten/pre 1a. I would like him to receive pendency services. Please be in touch in regard to how this process works and what is needed on my end.” (Findings ¶ 33).

The Parent never informed the District that she was planning to or had already contracted to implement a fulltime 1:1 ABA program with BCBA prior to the filing of the DPC. (P-Ex. A). The Parent’s Closing Brief argues that the DPC itself constituted proper notice. (IHO Ex. VIII p. 25). However, for two months the Parent was in constant contact with the CPSE/CSE via email and at least two IEP meetings, during which she never once mentioned that she desired or planned to implement a 1:1 ABA program with BCBA supervision for the Student. (P-Ex. J pp. 1-149; Findings ¶¶ 24-38).^[27]

Reimbursement/Direct-Pay Issues

There is no contemporaneous contract in the record for the provision of SEIT, ABA provider and BCBA supervision by the Agency for the 2021-2022 school year. The Parent has instead requested that this IHO order the DOE to pay in full a “debt” that has been “ratified” as part of the 2022-2023 school year agreement between the Parent and the Agency. (See P-Ex. CC p. 3).

The statement of hours and cost of services signed by the Administrator is not notarized; however the information was verified during his testimony at hearing. (Findings ¶ 70). No documentation was provided by the Agency evidencing any individual dates of service, descriptions of service, name of provider, time spent or signature of provider.

Independent Educational Evaluations and Educational Records

This IHO agreed with the Parent’s request for an independent neuropsychological evaluation and ordered one pursuant to the Parent’s motion for IEEs.^[28] (IHO Ex. VI). The Parent, in her Closing Brief, stated that IEEs for speech-language evaluation and an FBA are not requested at this time. (IHO Ex. VIII p. 25). The record demonstrates the need for updated and comprehensive evaluations of the Student in the areas of occupational therapy and physical therapy, and IEEs for these two areas will be ordered. The Closing Brief also requests IEEs in the areas of assistive technology and auditory processing. The record does not reflect the need for IEE’s in these two areas at the current time, and they will not be granted. Although the Closing Brief is silent on the request for autism/ABA assessment and vision processing, this IHO will address the requests. Based upon the record, IEEs in these two areas are denied. The DPC requested an observation by an expert in autism. There is a recent classroom observation in the record obtained by the independent neuropsychologist. (Findings ¶ 68). This IHO will not order an independent autism observation.

The Parent made a broad records request in a letter dated October 1, 2021. (P-Ex. C). The DOE responded in late November 2021 with the production of approximately 160 pages. (P-Motion-Ex. C). The Parent submitted a broad motion to compel production of records on January 25, 2022. (IHO Ex. V). At a hearing limited to the subjects of requests for records, witnesses and IEEs, this IHO ordered the DOE to produce the entire SESIS log and any documents concerning school location pursuant to the final 2021-22 IEP. (Tr 115-116). The DOE produced these two documents via email during the hearing.^[29] On June 24, 2022, at the first day of hearing on-the-merits, this IHO ordered the DOE to produce everything in the DOE system and later that day approximately 600 pages of documents were emailed to Parent and cc’d to this IHO. (IHO Ex. VII).^[30]

Section 504

This IHO finds that the record does not support an award of any of the relief requested by parent under Section 504.

Compensatory Education The record does support an award of compensatory education for the extended school years of 2019-2020, 2020-2021, and 2021-2022. The DOE conceded FAPE by failing to submit documentary evidence or present witnesses; however, even if we presume that the DOE intended to admit every deficiency alleged by the Parent in the DPC, the Parent is not entitled to default relief. “[A]n award blindly ordering any and all relief requested may be akin to a default judgment, which is generally a disfavored outcome.” (Application of a Student with a Disability, Appeal No. 21-207, p. 41; see also Application of a Student with a Disability, Appeal No. 21-097, p. 18). Such an award might ultimately do more harm to a child. ( M.M. v. New York City Dep’t. of Educ., 2017 WL 1194685 at *8 (SDNY Mar. 30, 2017). “Common sense and experience teaches that services that may be valuable for, or even critical to, a child’s educational achievement when provided in small to moderate amounts may become close to useless or even burdensome, if provided in overwhelming quantity.” (Id.) A complete award of the compensatory education as requested by the Parent would amount to a punitive award. (See C.W. v. Rose Tree Media Sch. Dist., 395 Fed. App’x 824 828 (3d Cir. Sept. 27, 2010).

This IHO has the responsibility to craft an appropriate compensatory education award based upon the record and in the instant matter the record is dense. This IHO has reviewed every page of the record. The record reveals the Student’s then current levels of performance and progress through the 2019-2020, 2020-2021 and 2021-2022 extended school years.

Full implementation of the Student’s 2019-2020 and 2020-2021 IEPs were made quite impossible by the COVID-19 pandemic and resulting mid-March 2020 shutdown of all State school buildings. Schools, both public and private, turned to remote instruction to deliver general education, special education and related services to their students. The disruption in traditionally provided education persisted through the 2020-2021 school year, as is evidenced by the hybrid in-class/remote program the Student attended during the fall 2020. (Findings ¶ 11). The Parent noted, in her initial email to the CPSE requesting evaluations, that the Student “experienced inconsistent CPSE school and services due to the Covid pandemic, which caused negative effects in the academic, social and emotional areas of development.” (P-Ex. J p. 1).

2019-2020 and 2020-2021 The record reflects that when the Student transferred from EI to the CPSE in 2019 he had many delays and difficulties. (Findings ¶ 2). As a result, the CPSE recommended a fulltime 12:1:2 classroom with related services, which he started in July 2019. (Id.) The Parent testified that she wanted the Student to be in a class with typical peers, and pursuant to the July 2019 CPSE IEP he transferred to an integrated classroom in Preschool I. (Findings ¶ 3). By December 1, 2019 he had made some progress. (Findings ¶¶ 4, 5, 6). The COVID-19 school shutdown in mid-March 2020 and concurrent switch to remote education and services led to additional difficulties, including maladaptive behavior in the home and regression, for the Student. (Findings ¶¶ 7, 8, 9). The Student received a medical diagnosis of ASD in July 2020. (Findings ¶ 9). The Student attended an in-person summer camp for a couple of weeks without support and according to the Parent “did very well.” (Findings ¶ 10). During fall 2020 the Student returned to preschool on a “hybrid” schedule alternating in-person and remote instruction. (Findings ¶ 11). The Parent testified that he did poorly in the hybrid program. (Id.) The preschool, however, reported in detail that the Student had made progress. (Findings ¶¶ 12-15). The Parent, concerned about the Student’s reaction to the remote instruction, located a fulltime in-person special education preschool and the Student transferred in mid-December 2020. (Findings ¶ 16). The progress reports issued after only couple of weeks of instruction indicated he had made some progress. (Id.). The record contains no additional reports for the 2020-2021 school year. The Student encountered some health-related issues between January and June 2021. (Findings ¶ 17).

The Student, who in mid-March 2020 was just [REDACTED] years, [REDACTED] months, was at a critical educational juncture and missed significant amounts of in-person special education, as well as the in-person related services of SLT, PT, OT and counseling from mid-March 2020 through August 2020. He surely would have made more progress if he had in-person access to his recommended IEP program. Similarly, he would have made more progress had he attended Preschool I in-person on a fulltime basis from September 2020 through December 2020. Although he transferred to the in-person Preschool II from mid-December 2020 and remained until June 21, 2021, his education continued to be impacted by the effects of COVID-19 in his home and in the community. Although Preschool II was able to implement the CPSE IEP program, the site was chosen only for its ability to provide in-person instruction which the Parent desired pursuant to the COVID-19 interruptions.

2021-2022

No compensatory awards are warranted for the 2021-2022 school year. The compensatory education awarded for the 2019-2020 and 2020-2021 extended school years will serve to place the Student where he would have been but for the denial of FAPE in this matter. The Parent chose to enroll the Student in the Unilateral Program; therefore, any educational deficits arising from the Unilateral Program were not caused by the District’s failure to provide FAPE, for any of the years in question. The Unilateral Program was inappropriate; thus it cannot be considered an appropriate compensatory award for the denials of FAPE in the prior two years. The Burlington/Carter analysis, supra, is the correct framework to determine whether any public funding for the Unilateral Program is warranted.

ABA supports The Parent asserts that elements of the Unilateral Program, namely 1:1 ABA support services with BCBA supervision are appropriate compensatory education awards. This IHO disagrees. Upon entering the NPS, in late August 2021, with SEIT support and related services, the Student encountered significant difficulties. (Findings ¶¶ 44, 46). Approximately six weeks following the start of school, the Parent implemented a unilateral program consisting of fulltime 1:1 ABA push-in behavioral support with BCBA supervision. (Findings ¶¶ 42, 43). The Student was able to remain in the school and make progress. (Findings ¶ 50).

The record reflects that at the start of the 2021-2022 school year the Student was thrust into an environment that he could not navigate without 1:1 intensive supports for the following reasons: his speech was “unintelligible” due to apraxia (Tr 575, See also Findings ¶¶ 1, 6, 12, 13, 44, 54, 55, 56, 59, 61); he had fine motor and gross motor delays; (Findings ¶¶ 5, 12; see also P-Ex. W pp. 10-11); he had difficulty focusing and was easily distracted (¶¶ 4, 15; 35; see also P-Motion-Ex. C pp. 67-68); he had expressive and receptive language delays (¶¶ 2, 4, 6, 12, 13); and pre-academic delays. (Findings ¶ 35). It was also known that he had difficulties navigating stairs (Findings ¶ 14; see also P-Motion-Ex. C pp. 8, 141, 56-57, 68). The record makes absolutely clear that the Student has apraxia which had made his speech virtually unintelligible to both peers and adults. He first started PROMPT speech therapy at the age of three as part of his speech-language therapy mandate at Preschool I. (Findings ¶¶ 6, 12). In February 2022, when the Parent first obtained unilateral PROMPT speech therapy, the Student’s speech was “unintelligible to all,” however, by September 2022 he was “highly intelligible.” (Findings ¶¶ 54, see ¶¶ 53-56). The record reflects that the effects of the PROMPT therapy were, in the Parent’s own words, “game changing” and “off the charts.” (Id.) In contrast, the ABA program was intensive, rigid, data driven and behavior based. (Findings ¶¶ 42-43, see P-Ex. Q). The ABA program itself did enable the Student to remain at the NPS for the 2021-2022 school year. As discussed supra, that is not the purpose of the Burlington/Carter and Connors cases.

This IHO notes that ABA therapy is an evidence-based methodology that is “game changing” for many individuals who have ASD who, as a result, cannot access education using traditional models. The independent Neuropsychologist Report stated that the Student did not meet the criteria on the ADOS (Autism Diagnostic Observation Schedule) for a diagnosis of ASD. (Findings ¶ 66, see also ¶¶ 60-68). She had noted that In terms of reciprocal social interaction, [the Student] was generally cooperative and engaged with me. He used appropriately modulated eye contact. He also exhibited a range of facial expressions during the evaluation, such as showing excitement and anger. [He] made few social overtures to me, but he consistently responded to his name. When playing, he showed me what he was playing with and initiated spontaneous joint attention. He displayed observable enjoyment during interactions with me. During free play, [the Student] was able to engage appropriately in representational play, although he demonstrated few instances of appropriate reciprocal or symbolic play. In the area of restricted and repetitive behaviors, [he] exhibited no repetitive hand/finger movements. With regard to other abnormal behaviors, [he] did not appear anxious. (P-Ex. V p. 9)

She stated that his “deficits in his language skills, communication and social interactions, [were] largely due to his language difficulties.” (Findings ¶ 66; see also P-Ex. V p. 9). She diagnosed the Student with a Language Disorder with specific difficulties with expressive language. (Findings ¶ 60). The Neurologist diagnosed the Student with ASD by history and noted

• • While some of this may sometimes look like an Autism Spectrum Disorder it could also be related to [his] significant language deficits, tendency to avoid some work and he may seek sensory input while he attempts to distract himself from academic demands. He reportedly has had difficulties with many symptoms of ASD over the course of this year, but with individual supports, many of these symptoms have subsided and were not observed during the current assessment. Nonetheless, an ASD diagnosis should be considered as by history given his long-reported symptoms of ASD. As his language and attention needs are addresses, a diagnosis of ASD should be reconsidered.” (P-Ex. V p. 10).

The Neuropsychologist testified that the “collection of services and program” implemented by the Parent was appropriate. (P-Ex. X p. 4). She recommended ABA support in the classroom, but she did not explain the purpose of ABA for this Student. The Neuropsychologist explained the purpose of each and every other recommendation she made in the Report. (P-Ex. V pp. 11-12). An award of compensatory education in the form of 1:1 ABA behavioral support services would not remedy any educational deficit. These services could likely help the Student in his home environment where his behavior is frequently maladaptive (Findings ¶ 49). The record does not reflect that home-based services are required to enable the Student to make appropriate educational progress. The purpose of compensatory education is not to assist the Student at home; it is to help him catch up to where he would have been but for the failure to provide FAPE. The BCBA testified that the Student’s ABA program was necessary for the Student. This IHO notes that the BCBA (a) designed the program that she recommended; (b) receives significant hourly compensation for her services; and (c) is a consultant to the Agency. (Findings ¶ 71; P-Ex. P).

This IHO must carefully consider which compensatory special education interventions are now necessary to bring the Student to where he would have been but for the District’s failures. The Student missed a significant amount of instruction and related services due to the interruptions caused by the COVID-19 pandemic. This IHO will order compensatory education including SEIT, PT, OT, SLT, PROMPT speech therapy and counseling. There were 56 school weeks between mid-March 2020 and the end of June 2021. The SEIT services will be calculated using ten 1:1 hours per week to provide the Student with a significant bump in early childhood education to make up for the progress he failed to make due to the DOE’s failure to fully implement his IEPs. The related services will be awarded based upon the number of hours recommended in the May 2021 “Turning 5” IEP. (Findings ¶ 20). Additional PROMPT speech therapy services will amplify the progress the Student can make in all areas of his education that rely upon speech and communication. Therefore, in my discretion I will order PROMPT speech therapy as part of his compensatory education, to enhance the progress he will be able to make with the compensatory SEIT and related services. I will also order the DOE to reimburse the Parent for the cost of the PROMPT services she obtained for the Student from February 1, 2022 through October 2022. The PROMPT services were separate from the rest of the Unilateral Program. There will be no compensatory ABA services or BCBA supervision ordered.

ORDER

Based upon the above Findings of Fact and Conclusions of Law, it is hereby ordered:

• • The District failed to provide a FAPE to this Student for the 2019-2020, 2020-2021 and 2021-2022 extended school years;
• • Within 30 days, the District will reimburse the Parent the sum of $2,960.00 for PROMPT speech therapy provided to the Student by REDACTED, between February 1, 2022 up through October 2022, to be paid by the District upon receipt of signed invoices from REDACTED, with documentation of the dates of service, time spent and description of services rendered to the Student, accompanied by proof of payment or notarized affirmation of payment by the Parent to REDACTED, for same;
• • Within 30 days, the District will establish a compensatory bank of 56 hours of 1:1 PROMPT speech-language therapy, to be provided by REDACTED, or a speech language therapist certified in PROMPT, such provider to be chosen by the Parent and scheduled as the Parent and provider see fit, to be paid by the District upon receipt of signed invoices from the provider, with documentation of dates of service, time spent and description of services provided to the Student, and such hours shall not expire until January 15, 2025;
• • Within 30 days, the District will establish a compensatory bank of 84 hours of 1:1 speech-language therapy, to be provided by a licensed speech-language therapist, at a reasonable market rate, such provider to be chosen by the Parent and scheduled as the Parent and provider see fit, to be paid by the District upon receipt of signed invoices from the provider, with documentation of dates of service, time spent and description of services provided to the Student, and such hours shall not expire until January 15, 2025;
• • Within 30 days, the District will establish a compensatory bank of 56 hours of 1:1 occupational therapy, to be provided by a licensed occupational therapist, at a reasonable market rate, such provider to be chosen by the Parent and scheduled as the Parent and provider see fit, to be paid by the District upon receipt of signed invoices from the provider, with documentation of dates of service, time spent and description of services provided to the Student, and such hours shall not expire until January 15, 2025;
• • Within 30 days, the District will establish a compensatory bank of 112 hours of 1:1 physical therapy, to be provided by a licensed physical therapist, at a reasonable market rate, such provider to be chosen by the Parent and scheduled as the Parent and provider see fit, to be paid by the District upon receipt of signed invoices from the provider, with documentation of dates of service, time spent and description of services provided to the Student, and such hours shall not expire until January 15, 2025;
• • Within 30 days, the District will establish a compensatory bank of 28 hours of 1:1 counseling, to be provided by a licensed or certified psychologist, social worker, school psychologist or counselor, at a reasonable market rate, such provider to be chosen by the Parent and scheduled as the Parent and provider see fit, to be paid by the District upon receipt of signed invoices from the provider, with documentation of dates of service, time spent and description of services provided to the Student, and such hours shall not expire until January 15, 2025;
• • Within 30 days, the District will establish a compensatory bank of 560 hours of 1:1 special education instruction, to be provided by a special education teacher, certified for early childhood education, at a reasonable market rate, such provider to be chosen by the Parent and scheduled as the Parent and provider see fit, to be paid by the District upon receipt of signed invoices from the provider, with documentation of dates of service, time spent and description of services provided to the Student, and such hours shall not expire until January 15, 2025;
• • Within 30 days, the District will pay the Agency for up to 400 hours of Special Education Itinerant Teacher services, to the extent not already paid under pendency, at the hourly rate of $195 per hour, at the frequency of up to ten hours per week, for the extended school year, as provided from September 1, 2021 through January 10, 2023, to be paid by the District upon receipt of signed invoices from the provider, with documentation of dates of service, time spent and description of services provided to the Student;
• • The District will fund an independent occupational therapy evaluation for the Student, to be conducted by a licensed occupational therapist of the Parent’s choosing, who is qualified to administer standardized occupational therapy assessments to children, at a rate not to exceed $1,500.00 (one-thousand, five-hundred dollars).
• • The District will fund an independent physical therapy evaluation for the Student, to be conducted by a licensed physical therapist of the Parent’s choosing, who is qualified to administer standardized physical therapy assessments to children, at a rate not to exceed $1,500.00 (one-thousand, five-hundred dollars).

SO ORDERED.

DATED: January 10, 2023

Rachel Gibbons

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public-School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.

APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD

PARENT EXHIBITS

Exhibit

Document

Date

Pages

A Due process complaint 9/01/2021 17

B Individualized Education Program 7/16/2021 19

C Records Request with fax confirmation 10/01/2021 7

D Interim pendency order 12/10/2021 4

E REDACTED Progress report 2019-2020 19

F [REDACTED] Health letter 7/07/2020 3

G DOE Psycho-educational evaluation report 8/11/2021 4

H DOE Social history update 3/04/2021 3

I DOE Consent for assessments 8/03/2021 1

J Email between the Parent and the DOE in 2021 Various 149

K Email between Parent counsel and DOE with PWN and SESIS log 1/28/2022 25

L PROMPT speech therapy invoices 2/2022-5/2022 4

M Speech and language progress report by REDACTED 6/13/2022 2

N REDACTED Progress report undated 5

O Resume of REDACTED undated 2

P Resume of REDACTED undated 3

Q Progress report 6/22/2022 10

R Functional behavioral assessment and behavior intervention plan 8/04/2022 22

S Provider resumes undated 2

T Targets (for identification only) undated 5

U CV of REDACTED undated 4

V Neuropsychological report by REDACTED undated 19

W IEPs various dates 33

X Affidavit of REDACTED 9/21/2022 5

Y Resume of REDACTED undated 3

Z PROMPT speech therapy invoice October 2022 10/2022 1

AA PROMPT speech therapy invoice September 2022 9/2022 1

BB REDACTED letter regarding service rate and hours 11/02/2022 1

CC REDACTED parent agreement 6/15/2022 4 PARENT’S EXHIBITS FROM MOTION ON IEE AND RECORDS Motion-A

Due Process Complaint with email cover

9/01/21

17

Motion-B

Records Request and IEE request with fax coversheet

10/01/21

7

Motion-C

Documents produced by DOE pursuant to Records Request submitted by Parent on 10/01/2021

Various

160

Motion-D

REDACTED letter

July 2020

3

Motion-E

Omitted

12/18/2018

4

Motion-F

Omitted

1/04/18

4

Motion-G

July 2021 Parent Evaluation Request

7/02/21

1

DOE’S EXHIBITS

Exhibit

Document

Date

Pages n/a n/a n/a n/a

IHO’S EXHIBITS

Exhibit

Document

Date

Pages

I

Due process complaint

9/01/2021

17

II Memorandum of law in support of Parent’s motion for IEEs 1/25/2022 7

III District’s response to motion for IEEs 1/25/2022 10

IV

Records request

10/01/2021

5

V Memorandum of law in support of Parent’s motion to compel production of records 1/25/2022 7

VI

IHO interim order for IEE

1/30/2022

6

VII

DOE cover emails re: production of records

Various

7

VIII

Parent’s closing statement and memorandum in support

12/12/2022

30

Footnotes

[1] Personally identifiable information is attached as Appendix A, “Redaction Identification Page,” to this decision and must be removed prior to public distribution.

[2] Exhibits shall be referred to as follows: “P” for Parent’s Exhibit; “D” for District’s or Department’s Exhibits; “IHO” for Impartial Hearing Officer’s Exhibits, and “P-Motion-Ex.” for the Parent’s motion exhibits. Exhibits will be followed by the exhibit number and page numbers as needed and appropriate.

[3] The DPC is 16 pages long and contains 118 Arabic numbered paragraphs, 72 lettered subparagraphs, and 9 Roman numeral paragraphs. This IHO will directly or indirectly address all paragraphs.

[4] As noted infra in footnote 17, it is unclear whether the date of the IEP is July 16, 2021 or July 28, 2021.

[5] The Parent submitted the exhibits for her motions on January 28, 2022, several hours after the completion of the day’s hearing. (See P-Motion-Ex. A through Motion Ex. G).

[6] This IHO notes that the DOE’s indecision as to its approach to the instant matter, evidenced throughout the hearing process, did not delay completion of the matter nor prejudice the Parent, as the Parent received all documents from the DOE six weeks prior to the start of her case-in-chief and presentation of her first witness on August 10, 2021, while all parties were waiting for the production of the IHO-ordered neuropsychological evaluation report.

[7] A maximum of approximately three hours was spent on this matter on any individual hearing date. The total hours spent on witness testimony was approximately 11 hours.

[8] See infra Findings of Facts for descriptions of several IEPs and an in-depth history of the Student’s educational background.

[9] See also P-Ex. A pp. 9-12, ¶ 90, subparagraphs a through bb and ¶ 91, subparagraphs a through ff.

[10] See also P-Ex. A pp. 12-14, ¶¶ 92 through 114.

[11] See DPC ¶ 188 at subparagraph g. (P-Ex. A p. 15).

[12] Parent has characterized retroactive direct payment in a Burlington/Carter reimbursement matter as “satisfying a debt”.

[13] The Parent testified that counseling had been recommended for the original CPSE IEP. (Tr 466). He received the services. (Id.)

[14] The report indicated that the Student had a 33% delay according to the “Clinical Evaluation Language Assessment Fundamentals Preschool-2, (CELF-P-2). (P-Motion-Ex. C p. 102-104).

[15] The therapist used the Beery VMI Developmental Test of Motor Coordination and the Peabody Fine Motor Developmental Scale-Second Edition. (P-Motion-Ex. C p. 99).

[16] When the progress reports were drafted, the Student had attended Preschool II for just a few weeks, due to his transfer from Preschool I and his family catching COVID-19. (Findings ¶ 17).

[17] It appears that at least two CPSE IEPs were developed for summer 2021. The original summer 2021 CPSE IEP summary page has a different date (July 16, 2021) than the body of the document. (July 28) (P-Ex. B). The CPSE IEP for the summer 2021 was apparently adjusted after July 22, 2021 when the Parent explained she had located a SLT provider who could provide not just two, but three sessions of SLT per week at the camp. (P-Ex. J pp. 27-28). The Parent waived an IEP meeting for one of the changes.

[18] The SEIT was provided via pendency. (P-Exs. B, D)

[19] Prompts for Restructuring Oral Muscular Phonetic Targets

[20] See Concrete Pipe & Products of California, Inc. v. Construction Laborers Pension Trust for Southern California, 508 U.S. 602, 622 (1993).

[21] Director, Office of Worker’s Compensation Programs v. Greenwich Colliers, 512 U.S. 267, 281 (1994).

[22] The records in these two cases provided the courts with information regarding the financial resources of the parents. In E.M v. Dep’t of Educ., the Second Circuit referenced the underlying record which indicated the student’s “household income during the relevant period was less than $15,000.00 per year.” (E.M v. Dep’t of Educ., 758 F.3d at 447). In Mr. and Mrs. A., the district court noted that the parents’ income was $64,000.00 per year and the tuition was $84,000 per year. (769 F. Supp. 2d at 411).

[23] See also Perry A, Zirkel, The Two Competing Approaches for Calculating Compensatory Education, 257 Educ. L. Rep. 551 (2010); Perry A, Zirkel, Compensatory Education: An annotated Update of the Law, 291 Educ. L. Rep. 1 (2013).

[24] See Application of the New York City Dep’t of Educ., SRO 21-197 at *18 (Nov. 26, 2021)(reversing hearing officer’s award of compensatory services to make up for alleged gaps in the student’s IEP and the unilateral placement); Application of a Student with a Disability, SRO 21-152 at *8 (Sept. 20, 2021)(declining to award compensatory vision education in addition to a unilateral placement “to make-up for deficiencies in the placement chosen by and arranged for by the parent. To do so would amount to double relief...”).

[25] With the exception of PROMPT speech therapy which was provided outside of school.

[26] The Unilateral Program for the 12-months from September 2021 through August 2022 had a price tag of approximately $174,345 for the ABA services and supervision alone; $8,000-9,000 for the tuition at NPS; and $70,800 for the pendency SEIT services for a total of at least $250,000 per year for one student – without including the pendency provided services of OT, PT, SLT and counseling, which would easily cost an additional $40,000+ per year. (Findings ¶¶ 70-71, 74).

[27] The Parent did mention ABA in her email communications with the DOE, however she did not request ABA services. Instead, she attached the letter from the neurologist/nurse practitioner which recommended ABA services, and she noted that the letter was attached “in regards to justification for the Neuropsych and PsychoEd evaluations.” (P-Ex. J p. 100-104).

[28] The DOE provided PWN to the Parent regarding denial of a neuropsychological and psychoeducational evaluations. (Findings ¶ 29).

[29] The PWN provided by the DOE at hearing on January 28, 2022 did not include notice of a school location or a separate school location letter (“SLL”) that followed August 26, 2021 IEP. (P-Ex. K). The lack of such notice would have likely precluded a finding that the DOE provided a FAPE for the 2021-2022 school year.

[30] This IHO did not review these documents as they were not submitted into evidence by either party. These documents are not part of the record.