New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACTS & DECISION

Case Number: 223866

NYS Identifier Number 569059

Student’s Name: REDACTED

Date of Birth: REDACTED

District: REDACTED

Hearing Requested By: Parent

Dates(s) of Hearing: 06/16/22, 06/27/22, 08/16/22

10/07/2022

Actual Record Close Date: November 1, 2022

Hearing Officer: Sharifa Milena Nasser

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date

[REDACTED] Attorney PARENT 06/16/22 (V)

[REDACTED] Attorney PARENT 06/27/22 (V)

[REDACTED] Attorney PARENT 08/16/22 (V)

[REDACTED] DOE Representative DOE 08/16/22 (V)

[REDACTED] Attorney PARENT 10/07/22 (V)

[REDACTED] Mother PARENT 10/07/22 (V)

[REDACTED] DOE Representative DOE 10/07/22 (V)

DOCUMENTATION ENTERED INTO RECORD

Number/Letter Title Dated For # of Pages

A Request for impartial 01/19/22 PARENT 06

Hearing

B Ten-Day Notice 08/25/21 PARENT 03

C Neuropsychological 01/08/20 PARENT 07

Evaluation

D [REDACTED] Spring 2022 Progress UNDATED PARENT 07

Report

E [REDACTED] Spring 2021Progress 04/2021 PARENT 09

Report

F Enrollment Contract 02/15/21 PARENT 03

G Payment Affidavit 06/14/22 PARENT 01

H Classroom Schedule 2021/2022 PARENT 01

I Attendance Record 2021/2022 PARENT 05

J Findings of Fact and 12/07/21 PARENT 02

Decision

K Pendency Agreement 06/22/22 PARENT 02

L Transportation Documents UNDATED PARENT 21

M Transportation Contract 09/10/21 PARENT 01

N Affidavit of REDACTED 10/6/22 PARENT 06

O Affidavit of REDACTED UNDATED PARENT 03

On May 4, 2022, I was appointed as the Impartial Hearing Officer (“IHO”) to conduct a hearing pursuant to the Individual with Disabilities in Education Act (“IDEA”), 20 United States Code, Section 1415(f)(1), concerning a dispute involving the special education program of a [REDACTED] year old student attending a private school and the New York City Department of Education (“DOE”) District [REDACTED]. The Parents filed a Due Process Complaint (“DPC”) on or about January 19, 2022. Impartial hearings were held on June 16, 2022, June 27, 2022, August 16, 2022 and October 7, 2022. A list of the documents taken into evidence is annexed to this decision.

BACKGROUND

In this case, the Parents allege that the student’s Individualized Education Program (“IEP”) dated January 19, 2022, is procedurally and substantively flawed and woefully inadequate. (A-DPC) Accordingly, the Parents further allege that the student was denied a “free and appropriate public education” (“FAPE”) for the 2021-2022 school year. (Id.) The Parents allege that the CSE failed to conduct a proper review for the student and make appropriate recommendations for her educational planning. The Parents allege that no evaluations were conducted prior to developing the students IEP for the 2021-2022 school year. Parent also alleges that although the student wasn’t progressing in an ICT classroom, the same recommendation was given to the student for the 2021-2022 school year.

The Parent’s state, that they served the DOE with notice of the student’s unilateral placement at a private school on August 25, 2021, and never received a response from the District. (B)

At the impartial hearing, the Parent seeks the following relief:

• • Tuition reimbursement for the student’s attendance at the private school for the 2021-2022 school year.
• • Reimbursement for transportation services to and from the private school.

THE DOE’S CASE The DOE did not call any witnesses to testify on its behalf and submitted no documents in evidence. (T-21) In sum, substance and relevant part, the testamentary and documentary evidence for and against the DOE’s case is incorporated in the decision below.

THE PARENT’S CASE The Parent had (2) witnesses testify on their behalf, who testified on direct testimony via affidavit pursuant to 8 NYCRR 200.5[j][3][xii][f]. On October 7, 2022, the DOE stated that they would not cross the 2 affiants. (T-26) The Parent also submitted (15) documents in evidence. In sum and substance and relevant part, the testamentary and documentary evidence for and against the Parent’s case is incorporated in the decision below.

DOES’ DEFAULT The DOE failed to call any witnesses to testify on its behalf and did not submit any documents in evidence.

The DOE did not submit any evidence to show that they had replied to the Parents 10-day Notice prior to the Parents unilateral placement of the student.

The DOE has the burden of production and persuasion at an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of production and persuasion regarding the appropriateness of such placement. (See Educ. Law § 4404[1][c]) Here, the DOE did not proffer any testamentary evidence that it has offered the student a FAPE. (Supra) This amounts to a concession that the agency did not offer the student a FAPE.

It would be fundamentally unfair to allow either party to rely solely on the submission of documents in meeting its burden under law, where those documents are filled with double, triple and even unidentified hearsay sources, that cannot be cross examined. While compliance with technical rules of evidence is not required in administrative hearings, under certain c0ircumstances, the receipt of hearsay evidence may be so prejudicial as to have a tendency to deprive a party of fair hearing. (See Strain v. Sarafan, 57 A.D.2d 525, 393 N.Y.S.2d 572, N.Y.A.D. (1977), where the hearsay testimony was of vital importance and should have been subjected to cross-examination by the petitioner…the petitioner was deprived of a meaningful hearing, Dukes v. New York City Housing Authority, 63 A.D.2d 690, 404 N.Y.S.2d 889, N.Y.A.D. (1978), holding that the excessive reliance on hearsay evidence effectively denied petitioner the right to cross-examine adverse witnesses, Claim of Evans, 254 A.D.2d 564, 678 N.Y.S.2d 696, N.Y.A.D. (3 Dept. 1998), (where in an unemployment compensation proceedings, administrative l[2nd PRIVATE SCHOOL INITIALS] judge (‘ALJ”) properly exercised discretion to exclude hearsay evidence to protect employer’s fundamental right of cross-examination, where claimant proffered written hearsay statement, authored by acquaintance of the employer’s president, which allegedly indicated that claimant did not resign but was fired, but the acquaintance failed to answer subpoena directing him to testify at hearing, thereby denying employer the opportunity to cross-examine him on the statement, and Alvarado v. State of New York, 110 A.D.2d 583, 488 N.Y.S.2d 177 (1st Dept. 1985), holding that a license suspension hearing against a boxer and his managers was faulty because of a lack of an opportunity “to cross-examine certain witnesses whose reports were introduced into evidence without their testifying, in violation of SAPA Section 306, subd. (3).” (Id. at 585, 488 N.Y.S.2d at 179)

The DOE did not present a case-in-chief and did not controvert the documentary or testamentary evidence submitted by the Parent. (Supra) The credibility of the documentary evidence was not rebutted by either party and the documentary evidence is clearly relevant and material to the issues to be determined. I find the documentary evidence submitted by the parent and the District to be credible and uncontroverted in this case. I find the parent’s testamentary evidence to be credible and uncontroverted in this case.

As noted above, the DOE’s failure to present a case at the hearing is a concession that it denied the student a FAPE and that if the Parent meets her burden under Schaffer v. Weast, the Parent is entitled to the proven relief she seeks. This leaves, as the primary issue to be resolved through impartial hearing, what relief and/or compensatory education remedy, if any, is available and appropriate to remediate the denial of a FAPE. (SRO No. 17-033) It is noted that the DOE was required under the due process procedures set forth in New York State law, to address its burdens in the due process hearing context by describing its views, based on a fact-specific inquiry set forth in an evidentiary record, regarding an appropriate relief and/or compensatory education remedy that most reasonably and efficiently could place the student in the position that he would have been but for the denial of a FAPE. (See Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 457 [2d Cir. 2015], cert. denied, 136 S. Ct. 2022 [2016], quoting Reid v. Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005] [noting that the "'ultimate award [of compensatory education] must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place'"]) When, as here, the DOE does not present any case at the hearing, the hearing, the hearing process essentially becomes an “inquest” as to the appropriate relief.

The DOE has conceded liability by failing to present a case and meet its burden under the law. New York State law has placed the burden of production and persuasion at an impartial hearing on the school district, unlike states which align the burden of production and persuasion consistent with Schaffer v. Weast, 546 U.S. 49, 58-62 [2005} The undersigned finds that the DOE failed to adhere to the requirements of the law, has denied the student in this case a FAPE for the 2021-22 school year and that the Parent may be entitled to the proven relief she has requested.

APPROPRIATENESS OF THE RELIEF SOUGHT

I now turn to the question of whether the DOE should be required to reimburse and/or pay for the private educational services and relief requested for the student, because the services offered by the DOE were inadequate or inappropriate, and the relief sought, and services selected by the Parents are appropriate and equitable considerations support the Parent’s claim. (Burlington, Florence and Cerra, Supra) The Parent need only demonstrate that the requested services are specially designed to meet the unique needs of the student, supported by such services as are necessary to permit her to benefit from the instruction. (See Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65)

Where sought as relief, a private school placement must be "proper under the Act." (See Carter, 510 U.S. at 12, 15 and Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs. (See Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129 and Matrejek, 471 F. Supp. 2d at 419) A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement. (See Carter, 510 U.S. at 14) The private school need not employ certified special education teachers or have its own IEP for the student. (See Carter, 510 U.S. 7; SRO No. 08-085; 08-025; 08-016; 07-097; 07-038; 02-014 and 01-105) Parents also need not show that the placement provides every special service necessary to maximize the student's potential. (See Frank G., 459 F.3d at 364-65) When determining whether the parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits." (See Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"])

State regulations provide in relevant part that "[t]he decision of the impartial hearing officer shall be based solely upon the record of the proceeding before the impartial hearing officer and shall set forth the reasons and the factual basis for the determination. (See 8 NYCRR 200.5[j][5][v])

The party who defaults in concedes only liability and not the amount of “damages.” (See CPLR § 3215, First Nat. Bank & Trust Co. v. Classic Collateral Corp., 44 A.D.2d 868, 355 N.Y.S.2d 504 (1974), James v. Powell, 19 N.Y.2d 249, 279 N.Y.S.2d 10, 225 N.E.2d 741 (1967), McClelland v. Climax Hosiery Mills, 252 N.Y. 347, 169 N.E. 605 (1930) The DOE’s default constitutes an admission of liability, but not of damages, which remains the Parent’s burden to prove. (See Fed. R. Civ. P. 55 & City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114 at 128 [2d Cir. 2011])

In sum, substance and relevant part, the testamentary and documentary evidence concerning the appropriateness of the private school is as follows:

The DOE’s default herein supports a judgment in favor of the Parent and a finding that the student was denied a FAPE for the 2021-2022 school year.

The student’s lengthy and detailed neuropsychological submitted by the Parent, was undisputed by the DOE. (C) The report finds the following:

“The child’s neurological exam performed on or about January 8, 2020 states that her 2018 evaluation resulted in a diagnosis of specific learning disorder with impairment in reading DSM 5- 315.00 based on the results of REDACTED comprehensive 2018 evaluation and updated testing, her presentation is consistent with the following diagnosis. Specific learning disorder with impairment and reading DSM – five 315.00 specified attention deficit/hyperactivity disorder DSM 5-314.01 [REDACTED] presents with a specific pattern of weakness relating to sustaining her attention, working carefully and controlling impulses. REDACTED proneness to distractibility and fluctuating attention has an impact on her day-to-day functioning and on her ability to perform consistently in school. (C-3) REDACTED neuropsychological evaluation recommends a 1-1 support and intensive multi sensory Reading remediation and instruction built into daily lessons.”. (C-3)

The students Progress report show that the student has progressed and flourished in the private school. (D& E)

Parents witness, REDACTED testified via affidavit on direct examination as follows,

• • Can you explain what, if any, familiarity you have with the public special education programs in New York City?
• • First of all, as a special education teacher and as a public-school administrator, I was thoroughly familiar with the Individuals with Disabilities Education Act and New York State law and regulations related to special education services. I understand the Part 200 regulations well. In addition to my public-school experiences, in my current position as CSE liaison for the REDACTED, I have done well over 500 CSE meetings with New York City IEP teams. I have listened as the continuum of services has been described in those meetings. In addition, in my teaching career as a professor at Manhattanville College, I worked with graduate students who worked in New York City public schools and had opportunities to work with them in terms of understanding the nature of their job and the supports that they were providing. The continuum of services in New York City has been described consistently in each of the over 500 meetings that I've done. So, I do feel like I have a thorough understanding of special education services generally, and then special education services and supports in New York City as well.
• • Next, tell me, what are your duties and responsibilities as the CSE liaison at REDACTED?
• • I am working with REDACTED teachers to help them understand the Committee on Special Education decision-making process, and also to help them to present knowledgeably about the needs of their students in Committee on Special Education meetings. In addition to my work with special with REDACTED teachers, I am also working with parents of REDACTED students, helping them to understand Committee on Special Education decision making, helping them to understand the evaluations that are -- been done and how those evaluations are likely to be interpreted in Committee on Special Education meetings. And I work with them to help them to prepare for and present knowledgably about their students in Committee on Special Education meetings. In addition to what I've said already, I also have a role in working with parents when their students leave REDACTED and transition back to general education settings, either in a public school or a private school. So, I work with parents to help them to understand supports that they can access in their next school setting. (N 2-3)

When the witness testified specifically about the student, they testified to the following:

• • Let’s move on to REDACTED. Are you familiar with the student in this case, REDACTED or REDACTED?
• • I am familiar with REDACTED. For the 2021-2022 school year, she was in the 5th grade.
• • She first started at REDACTED during the 2020-2021 school year.
• • I participated in her May 2021 IEP meeting as the REDACTED representative and I also testified in her 2020-2021 hearing.
• • So, I had interaction with her teachers and the teachers who worked with her throughout the day. To prepare for the annual review meeting, I reviewed information on REDACTED performance, reviewed information gathered through the admissions process including evaluations by REDACTED in 2018 and 2020.
• • How would you describe REDACTED when she first started at REDACTED?
• • The REDACTED that we saw when she started had strengths in verbal comprehension. She has strong memory strengths in working memory, auditory, and visual memory. But she also presented as a student with significant weaknesses in her reading decoding/comprehension, writing, and spelling skills and some variability in her math skills.
• • She was diagnosed when we considered her for admission to REDACTED as a student with a reading disorder.
• • Subsequently, she was diagnosed with both a specific learning disorder with impairment in reading and with an attention deficit hyperactivity disorder.
• • And then she was diagnosed in the follow-up evaluation as a student with attention deficit hyperactivity as a result of work done in the evaluation completed in 2020.
• • REDACTED presented initially as kind of on the quiet side, a little anxious, but we really felt that she transitioned well to the small classes that were available to her. She did, again, present as a student with significant deficits in decoding. In word reading skills, in spelling, she was strong or had a relative strength in listening comprehension, but her reading comprehension was weak.
• • Her written expression was limited to short, simple sentences with frequent spelling errors and simple sentence structure and limited vocabulary.
• • Math skills were variable. She didn't really know her facts, but she had good, number sense and understood procedures for computation.
• • She required direct sequential language-based instruction that's multisensory and evidence based. And it needed to be delivered in a small class setting.
• • Please review a typical day for REDACTED?
• • For the 2021-2022 school year, REDACTED continued to attend small classes where she was grouped homogenously based on her skills and expected rate of progress. For example, if you review her schedule, Ex. H, she started her Mondays in homeroom, received three periods of English Language Arts (indicated as ELA for two periods and skills for another period), physical education, library, science, social studies, and math.
• • The teachers used O-G, multisensory, language-based instruction in each of these classes. Combined with REDACTED small class sizes, she was able to learn in a more effective way given her learning disabilities and attentional difficulties.
• • Her English Language Arts teacher, REDACTED, has a New York State Permanent Certification.
• • Her math teacher, REDACTED, obtained a New York State Certification in English Language Arts. This certification is no longer current as REDACTED does not require state certifications. REDACTED also has extensive training in teaching math using multisensory methods.
• • REDACTED and REDACTED participate in the staff training discussed earlier in the affidavit.
• • How, if at all, did REDACTED program evaluate student progress?
• • Student progress at REDACTED is evaluated based on school-based and standardized measures and on direct observation of student work. In the three language arts classes, in the math class, in the science class, and the social studies class, teachers and assistant teachers are working closely with each of the students. The school-based measures include the REDACTED coding reading and REDACTED coding spelling. The standardized measures include The IOWA English Arts and Math test.
• • Students have an opportunity to read from word lists, to do spelling dictations, to read orally, either from controlled text or connected text and trade books. So, throughout the day, teachers are observing a student's ability to read, to write, to understand language, to organize responses to questions orally and in writing.
• • Progress is reported to parents through quarterly progress reports and teacher conferences.
• • How did REDACTED perform during the 2021-2022 school year?
• • In terms of decoding, we continued to see gains in her ability to understand and use decoding skills. We saw decoding progress in every area on the school-based assessments. She used to guess based on visual configuration. She knew to read quickly, and she was often not accurate.
• • We also continued to see improvement in her oral reading, accuracy, and fluency. As you can see in her progress report, by the end of the school year, REDACTED was approaching proficiency in reading accurately in connected text, reading fluently, understanding literal information, making logical inferences, summarizing information and paraphrasing ideas. Ex. D.
• • In terms of written expression and spelling, she made progress in spelling. Spelling and decoding are linked. We saw gains in each of the areas of spelling. Either she maintained a high level of performance in a skill area, or she increased her ability to spell accurately in each of the categories where she was assessed.
• • We use the IOWA Language Arts Test as a standardized measure to view student performance each May. In vocabulary, REDACTED went from the 30th percentile in May 2021 to the 40th percentile in May 2022.
• • She also continued to make progress in math. She made significant progress in math facts and continued to benefit from multisensory instruction in math. On the IOWA standardized math test, REDACTED went from the 39th percentile in May 2021 to the 61st percentile in May 2022. As you will see in her progress report, by the end of the school year, REDACTED became proficient in the majority of the math skills tested (e.g., divides whole numbers, reads and writes decimals, reads and writes fractions). Ex. D.
• • REDACTED is less anxious in class and has continue to come out of her shell as a more comfortable in the classroom.
• • How, if all did REDACTED program address [REDACTED]’s needs for the 2021-2022 school year?
• • REDACTED continued to respond to REDACTED O-G and language-based instruction to address her significant reading deficits. She continued to show confidence in her ability to learn and that has allowed her to engage more in class and with her peers. (N 4-6)

The Parent testified about the students’ prior issues while at her previous school and her progress once at the private school.

• • What did you do?
• • We spoke to the school and had REDACTED evaluated independently in 2018. Because the IEP and extra tutoring was not resulting in improvement, we did a supplemental evaluation in 2019 (addendum reported in 2020). Between 2018 and 2020, the gap between where REDACTED was as a learner and where she was supposed to be had widened notably (i.e., she was falling further behind, not catching up). Based on those evaluations and numerous conversations with the school, REDACTED required a specialized learning disability program. When we informed the Principal of REDACTED that REDACTED would be attending REDACTED the following year, she told us in writing that we’d made the right choice.
• • How did REDACTED adjust once at REDACTED?
• • Extremely well. Starting the very first week, we saw immediate change. REDACTED actually wanted to do homework after school with us. She finally felt like she was in a place where she knew how to learn. She was happier and we saw decoding and reading comprehension improvement at home. By the end of the 2020-2021 year, based on reports from REDACTED, we saw the kinds of gains we knew she was capable of making.
• • Why did you decide to re-enroll REDACTED at REDACTED for 2021-2022?
• • The DOE held a meeting in May 2021 where it recommended an ICT class again. We told the team that REDACTED tried to make progress in a mainstream program with SETSS and intensive tutoring. She couldn’t do it! She needed a specialized, small class for students with learning disabilities.
• • We felt we had no choice but to keep her at REDACTED.
• • You are seeking reimbursement for the 21-22 tuition?
• • Yes, my understanding is that the DOE is supposed to reimburse us pursuant to the pendency agreement from 1/19/22 through the end of the 2021-2022 school year, but we have not received that yet.
• • We are seeking reimbursement of the 2021-2022 tuition, total costs $65,050. Ex. G.
• • You are also seeking reimbursement for transportation, why?
• • The DOE never arranged for transportation for REDACTED despite our willingness to accept it before the 2021-2022 school year. By December 2021, the judge ordered the DOE to provide REDACTED with transportation. Ultimately, we arranged for a car carpool to take REDACTED. This costs us $9,050 for the 2021-2022 school year.
• • As the parent, what have you observed in REDACTED performance this school year at REDACTED?
• • She remains in the right school setting. REDACTED continues to gain more reading progress day by day, is enjoying reading and we see we have our confident, funny, and happy daughter back! (O 2-3)

The Student’s Progress Reports were also submitted into evidence, and they show the students’ progress through her semesters for the 2021-2022 school year. (D&E) The student has progressed academically and socially from the instruction provided at the student’s unilateral placement school. (Id)

When determining whether the parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits." (See Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003]) (emphasis added) This standard is well below those other standards of review in the law such as “beyond a reasonable doubt”, “clear and convincing evidence”, “preponderance of the evidence”, “substantial evidence” or even perhaps “rational basis.” The record, as accurately summarized by the parties above and adopted in this decision and order, supports a finding that the decision to place the student at the private school was”reasonable” as an appropriate placement for the student’s 2021-2022 school year.

SPECIAL EDUCATION TRANSPORTATION SERVICES

The IDEA specifically includes transportation, as well as any modifications or accommodations necessary in order to assist a student to benefit from his or her special education, in its definition of related services. (See 20 U.S.C. § 1401[26], see also 34 CFR 300.34[a], [c][16]) In addition, State law defines special education as “specially designed instruction... and transportation, provided at no cost to the parents to meet the unique needs of a child with a disability,” and requires school districts to provide disabled students with “suitable transportation to and from special classes or programs.” (See Educ. Law §§ 4401[1], 4402[4][a], see also Educ. Law § 4401[2] and 8 NYCRR 200.1[ww]) Specialized transportation must be included on a student's IEP if required to assist the student to benefit from special education. (SRO No. 03-053) If a CSE determines that a student with a disability requires transportation as a related service in order to receive a FAPE, the district must ensure that the student receives the necessary transportation at public expense. (See Transportation, 71 Fed. Reg. 46576 [Aug. 14, 2006]; see 8 NYCRR 200.1[ww])

The State Education Department has indicated that a CSE should consider a student's mobility, behavior, communication, physical, and health needs when determining whether or not a student requires transportation as a related service, and that an IEP “must include specific transportation recommendations to address each of the student's needs, as appropriate.” (See “Special Transportation for Students with Disabilities,” VESID Mem. [Mar. 2005]) Other relevant considerations may include the student's age, ability to follow directions, ability to function without special transportation, the distance to be traveled, the nature of the area, and the availability of private or public assistance. (See Donald B. v. Bd. of Sch. Commrs., 117 F.3d 1371, 1375 [11th Cir. 1997] and Malehorn v. Hill City Sch. Dist., 987 F. Supp. 772, 775 [D.S.D. 1997]) When reviewing the transportation provisions made for a student by a district, the relevant question is whether the transportation arrangements are appropriate to meet the student's needs. (SRO No. 03-054)

In this case, the, the DPC requests “transportation” services, and the Parent provides proof of the expenses incurred to transport the student to and from school. (L-O_) If the DOE has not done so already, it must consider transportation of the student to the private school in accordance with Educ. Law 3635; 4402[4][[d].

There is nothing in the record that support a finding that the Parent has not cooperated with the DOE.

NOW therefore, it is hereby

ORDERED that the DOE denied the student a FAPE for the 2021-2022 school year and that upon its receipt of reasonably satisfactory proof of services having been rendered, the DOE shall either reimburse the Parent, and/or directly pay for the cost of the student’s tuition and related cost and expenses at the private school, including transportation services for the time the student attended the private school during the 2021-2022 school year; and it is further

ORDERED that the CSE shall forthwith reconvene after the completion of the student’s evaluations and consider all of the student’s evaluations and any other relevant information and produce a new IEP for the student’s 2022-2023 school year; and it is further

ORDERED that any of the other relief sought by the Parent not addressed by this “Final Order” is found to be either resolved by the parties, withdrawn by the Parent, outside the scope of the IHO’s authority or unsupported by the record.

DATED: November 16, 2022 _____________________________

Queens, New York Sharif Milena Nasser - I.H.O.

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. (Rev. 07/09/20)