New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 571120 - NYC: 225244

NEW YORK CITY DEPARTMENT OF EDUCATION

______________________________________________________________________________

STUDENT, a minor, by and through his/her/their

Parent(s),^[1]

Petitioners,

FINDINGS OF FACT AND DECISION

Case No: 225244

-against-

NEW YORK CITY DOE, CSE REGION REDACTED Jennifer Mazzei, Esq.

Respondent. Hearing Officer

______________________________________________________________________________

INTRODUCTION

This matter comes to your undersigned Impartial Hearing Officer on Parents’ Due Process Complaint (hereinafter, “DPC”), filed on or about March 17, 2022 (P-Ex. A.^[2]). Your undersigned Impartial Hearing Officer (hereinafter IHO) was appointed on March 21, 2022. A Prehearing Conference in this matter was scheduled for, and held on, May 24, 2022, once the resolution period had expired. Thereafter, Parent request for an Order of Consolidation was denied on or about April 20, 2022 as it pertains to this case and granted as it pertains to two other DPCs filed on behalf of this student. On or about June 14, 2022, Parent filed an Amended Due Process Complaint, which was accepted by the District on or about June 16, 2022. However, on that same date, by email, Parent withdrew the amended complaint and sought to move forward on the originally filed Due Process Complaint. Both parties agreed to this course of action.

An Impartial Hearing was commenced on June 27, 2022, with substantive testimony taken on that day and continued June 28, 2022, as well as June 30, 2022. The Hearing was concluded on July 29, 2022, with the submission of written closing briefs. Due to the COVID-19 pandemic, the hearing was held via the Escribers Conferencing Platform without objection from either party (T.30). Exhibits were pre-marked, and Parent offered into the record as evidence, Exhibits A-X, of all which were entered into the record apart from G, H, J, and K. Respondent (hereinafter DOE or District) offered into the record as evidence, Exhibits 1-9, all of which were entered into the record. Your undersigned IHO offered into the record, Exhibits I, II, and III, which were also entered into the record.

The Department of Education (hereinafter DOE or District) called two witnesses, a School Psychologist (hereinafter “Psychologist”) working with the CSE that evaluated Student under the relevant IEP and the Assistant Principal of the school recommended under Student’s IEP (hereinafter Assistant Principal). Parent also called two witnesses, the Special Education Director at the Private School (hereinafter “Private School Director”) and Student’s Female Guardian, (hereinafter “Parent”).

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”),^[3] 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 Art. 89 § 4404 et seq., and its implementing regulations, 8 NYCRR § Part 200.

BACKGROUND & PROCEDURAL HISTORY

Student is currently REDACTED, years old and sought placement at the Private School in January 2020 after she was displaced from her current school due to a natural disaster (T. 306).

After an investigation by the DOE, it was determined that Student was not a resident of New York City and thus not entitled to a Free Appropriate Public Education (FAPE). Parent appealed this decision and said appeal was dismissed on September 13, 2021, by the NYS Education Department Commissioner (DOE-Ex. 5). Despite this determination, the following timeline of events occurred with respect to the 2021-2022 and 2022-2023 extended school years:

• • January 4, 2022- the DOE sent notification to Parent of the scheduling of an IEP meeting for Student (DOE-Ex. 1), (T. 72).
• • January 13, 2022- the DOE conducted a psychoeducational evaluation of Student (DOE-Ex.3).
• • January 18, 2022- the DOE conducted a social history update of Student and thereafter obtained consent from Parent for Special Education Services (DOE-Ex.6).
• • February 11, 2022-the IEP meeting was held, and an IEP was developed for Student (DOE-Ex.2).
• • March 17, 2022- Due Process complaint for the within action was filed.
• • March 30, 2022- Parent received the school location letter providing the information for the Public School at which the February 11, 2022 IEP would be implemented (DOE-Ex. 9) (T.175-176)
• • April 20, 2022- A Order denying consolidation was granted denied as it pertains to this case and granted as it pertains to the remaining DPCs for this Student (IHO-Ex. I)
• • April 29, 2022- Student left the jurisdiction of New York City and had not returned as of the date of the June 28, 2022 impartial hearing (though Parent indicated that it was her intention to return within weeks (T. 272 and T.315)).
• • June 7, 2022- DOE filed a motion to dismiss for the 2022-2023 extended school year.
• • June 14, 2022- Parent filed opposition to the DOE’s Motion to Dismiss and filed an Amended Due Process Complaint; (T.62)
• • June 16, 2022-Amended Due Process Complaint was withdrawn by Parent (T.62).
• • June 18, 2022- Decision denying the DOE’s Motion to dismiss issued by your undersigned IHO.
• • ISSUES:

The original Due Process Complaint filed in connection with this matter alleges that the Department of Education both procedurally and substantively denied Student a Free Appropriate Public Education (FAPE) (P-Ex. A) by:

• • Failing to provide Parent with Prior Written Notice and a School Location Letter in a timely manner after the February 11, 2022, IEP meeting.
• • Failure to recommend Music Therapy as a related service.
• • Failure to recommend Hearing Education Services or another service to support Student in learning how to improve her communication skills through sign language.
• • Failure to recommend Vision Education Services.
• • Failure to provide Assistive Technology Devices recommended under the IEP.
• • Failure to recommend an appropriate school location for Student.

Therefore, the issues to be decided are whether the DOE denied Student a FAPE for the 2021-2022 extended school year (beginning February 11, 2022) as well as whether the DOE denied Student a FAPE for the 2022-2023 extended school year, and if so whether Student’s unilateral placement at the Private School was appropriate, and whether the equitable considerations support a full award of tuition, related services, and transportation.

Parents have requested an Order declaring that the DOE denied Student a FAPE for the 2021-2022 and 2022-2023 extended school years, an Order declaring that the Private School is an appropriate placement for Student for 2021-2022 extended school year, an Order declaring that equitable considerations favor full funding by the DOE for Student’s placement for the 2021-2022 extended school year, an Order directing the DOE to fully fund the cost of Student’s tuition, related services, and 1:1 paraprofessionals for the 2021-2022 extended school year, an Order directing reimbursement of special education transportation with limited travel time and a transportation paraprofessional, nurse or porter service as required for Student at the Private School for the 2021-2022 extended school year, an Order directing the IEP team to reconvene to address any changes if necessary, an Order compelling the DOE to provide Assistive Technology Services and Devices and AAC to assist Student with Communications, an Order directing the DOE to reimburse Guardians for all costs associated with Students Assistive Technology Device including all required service hours and accessories, an Order directing the DOE to fund an independent educational and transition evaluation of Student. (P-Ex. A).

SCOPE OF THE HEARING

On June 28, 2022, during the hearing, Parent clarified for the record that they were seeking to move forward from the date of the IEP, February 11, 2022, through the end of the extended 2022-2023 school year (T. 180-183, 271). Therefore, those are the only dates that will be considered in the within decision. While this IHO gave broad latitude to Parent’s counsel in his questioning of witnesses, over the objections of the DOE, all said latitude was solely to complete the narrative and background of Student and does not serve to expand the scope of this hearing beyond those issues raised in the originally filed due process complaint. However, notably absent from the proposed resolution section of the DPC is any relief for the 2022-2023 school year, with the exception of a request for a declaratory finding that the DOE denied Student a FAPE for said school year. Despite, this lack of requested relief, the 2022-2023 school years will be analyzed for all three prongs of the Burlington-Carter test.

FINDINGS OF FACT

After considering all evidence presented, as well as the arguments of counsel, the Findings of Fact are as Follows:

According to the February 10, 2022, IEP developed by the Private School and in the record as Parent Exhibit P, Student is diagnosed with REDACTED, is non-verbal and utilizes a switch device for communication purposes. Student has an extensive history of having seizures despite being medicated for seizures. Student is ambulatory, but requires assistance for her safety due to impulsivity, poor safety awareness and potential for seizure.

While enrolled in the Private School, Student was receiving education in a 6:1:1 special education class (with direct instruction), Physical Therapy, 1:1-5x per week in 60 minute sessions, Occupational Therapy, 1:1-4x per week in 60 minute sessions, Speech-Language Therapy, 1:1-5x per week in 60 minute sessions, Vision Education Services (VES), 1:1-3x per week, 60 minute sessions, Assistive Technology Services (AT), 1x per week, 60 minute sessions and Parent counseling/training, 1x per month in 60 minute sessions. Student is also receiving support from a 1:1 paraprofessional, and the use of her AT device across all environments (P-Ex. P, 56-58). Student further receives transportation to the and from the Private School in a wheelchair accessible vehicle with a 1:1 travel paraprofessional, limited travel time and air conditioning (P-Ex.56). Further, Student also was receiving Music Therapy 2x per week in 60-minute sessions, 1:1 and 1x per week in 60-minute group sessions (P-Ex.50). Also recommended by the Private School in their February 10, 2022, IEP was hearing education service, 3x per week in 60 minute-sessions, 1:1 (P-Ex. P, 41).

The IEP developed by the Department of Education and dated February 11, 2022, recommended education services in a 6:1:1 special education class for 35 periods per week, Physical Therapy, 1:1-4x per week in 45 minute sessions, Occupational Therapy, 1:1-5x per week in 60 minute sessions, Speech-Language Therapy, 1:1-5x per week in 60 minute sessions, Assistive Technology Services (AT)- throughout the school day, in the form of a switch device and Parent counseling/training 1x per month in 60 minute sessions. Also recommended in said DOE IEP is support from a 1:1 paraprofessional, and nursing services as needed throughout the school day. Student was also recommended to a District REDACTED, School to implement this IEP via a school location letter received on March 30, 2022. Absent from these recommendations were music therapy, hearing education services and vision therapy.

Music Therapy:

Parent’s Exhibit P, the IEP developed by the private school, indicated that Student had been receiving music therapy by a board-certified music therapist (MT-BC) and that said therapy has helped Student to regulate her emotions, promote independence, choice and communication skills and exercise to stimulate functional movement patters (P-Ex. P-31). The goals for Student regarding music therapy are intended to extend over various domains as that it was found that for this Student, music was helpful for her to “regulate, focus and relax” (P-Ex.49-50).

Hearing Education Services:

In December of 2021, the Private School assessed Student for sign language support due to Student’s difficulty in attending, communicating, processing information, following directions, and completing tasks (P-Ex. P-24). A hearing specialist then completed an informal assessment of Student both with and without sign language intervention. It was found that during Student’s speech session, the use of sign language vastly improved her ability understand the directions given by the provider (P-Ex. P-24). It was the opinion of the private school that due to Student’s cognitive and executive functioning challenges; Student would not be able to implement strategies learned without this support (P-Ex. P-24). Thereafter it was recommended by the Private School that Student receive four (4) 60-minute sessions of hearing education services.

The February 11, 2022, IEP developed by the Department of Education did not recommend Hearing Education Services as that those services are “recommended for students with hearing loss who require intervention related to that documented hearing loss.” (P-Ex. R-27) Student’s Parent expressed her concerns to the IEP team over failure to recommend and implement these services as is documented by the IEP team (P-Ex. R-58). Vision Therapy:

The Private School, in its February 10, 2022, IEP indicated that Student was receiving Vision Education Services 1x per week and 60-minutes per week (P-Ex. P-16). These services were recommended for Student due to her diagnosis of REDACTED. The IEP explained that “Students who have a medical diagnosis of REDACTED are commonly diagnosed with strabismus, refractive errors, and visual acuity concerns such as myopia (nearsightedness) and hyperopia (farsightedness). In addition, students with REDACTED may experience visual field loss, oculomotor challenges, and Cortical Visual Impairment” (P-Ex. P-16). Student has limited use of her vision and demonstrates decreased acuity, non-purposeful gazing, and light gazing behaviors.

Vision services resulted in Student’s ability to localize and sustain her gaze using CVI accommodated materials, such as those that feature color preferences, movement and backlighting or a spotlight (P-Ex. P-17). The Goal of Vision Education Services for Student was to have access to her community and participate in similar activities as her peers. In furtherance of this goal, the Private School indicated that they would use “Expanded Core Curriculum, which is a curriculum specifically developed for students with visual impairments to have the increased independence and the ability to access the world around them.” (P-Ex. P-17).

The February 11, 2022, IEP developed by the DOE did not recommend Vision Education Services as that those services are recommended for students with “specific visual acuity/diagnostic information” There was no diagnostic information presented to the IEP team (P-Ex. R-27). Guardian expressed her concerns to the IEP team over failure to recommend and implement these services as is documented by the IEP team (P-Ex. R-58).

CONCLUSIONS OF LAW AND DISCUSSIONS

Based upon the above Findings of Fact, the arguments of counsel, as well as this Hearing Officer’s own legal research, the Conclusions of Law are as follows:

The Individuals with Disability Education Act (“IDEA”) is a comprehensive statutory framework established by Congress to ensure that students with disabilities are afforded a FAPE. See, 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 US 49 (2005). A “free appropriate public education consists of educational instruction that is designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child to benefit from the instruction.” Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 188 (1982). To demonstrate that FAPE is being provided, the school district must show “that it complied with the procedural requirements set forth in the IDEA, and that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits.” See: Application of Child with a Disability, Appeal No. 05-061, quoting, Rowley at 206. The student's recommended program must also be provided in the least restrictive environment with non-disabled peers. See: Walczak v. Florida Union Free Sch. Dt., 142 F.3rd 119 (2nd Cir. 1998).

Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally, Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Rowley, at 206-07).

As set forth in Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); Sch. Comm. Of Burlington v. Dep’t of Educ., 471 U.S. 359 (1985) when a parent seeks reimbursement for tuition in a private school, it is well established that a District may be required to reimburse parents for tuition payments if the services offered by the District were inadequate or inappropriate, the services selected by the parents were appropriate under the IDEA, and equitable considerations support the parent’s claim for reimbursement. Thus, consideration of such a claim has been expressed by a three-prong test: (1) whether student was denied a FAPE; (2) the appropriateness of the Parent’s unilateral placement; and (3) a balancing of the equities.

The burden of persuasion and proof is by the preponderance of the evidence standard, which requires a finding that the existence of a fact is more probable than not. When the evidence is evenly balanced, the party with the burden loses. The burden of production and persuasion is on the District for the first and third prongs. The Parent bears the burden of production and persuasion on the second prong.

An appropriate program begins with an IEP which accurately reflects the results of the 1) student’s present levels of performance; 2) provides for the use of appropriate special education services to address the child's special education needs; 3) establishes annual goals which are related to the child's educational deficits; 4) identifies transitions services; 5) provides a start and end date to the recommended program and services; and 6) criteria and evaluation procedures for the measurement of goals. See, Walzczak, supra; Id., Appeal No. 00-005. “The initial procedural inquiry is no mere formality.” Walczak, at 129. “Adequate compliance with the procedures prescribed [by IDEA] would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP.” Rowley at 206. For an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression. This progress must be meaningful, i.e., more than mere trivial advancement. Walczak, supra.

In Endrew F. v. Douglas County School District, 580 U.S. __, 14 (2017), the Court held that, “[t]o meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances, as a focus on the particular child is at the core of the IDEA. The instruction offered must be “specially designed” to meet a child’s “unique needs” through an “individualized education program.” §§1401(29), (14) (emphasis added), to reflect the fact that a contemplated IEP must be focused on the “particular child that is at the core of the IDEA”. In such case, the school is still required to ensure the student is given an IEP that requires not just academic but also functional progress and, although the goals may differ for students, each child must have an IEP that includes goals and services to enable a child to make both academic and functional progress. The court further stated that an IEP “is not a form document. It is constructed only after careful consideration of the child’s present levels of achievement, disability, and potential for growth” §§1414(d)(1)(A)(i)(I)–(IV), (d)(3)(A)(i)–(iv), and that “a student offered an educational program providing “merely more than de minimis progress” from year to year can hardly be said to have been offered an education at all.” The Court in Endrew further stated that, “[t]he IDEA demands more. It requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Although the Supreme Court declined to elaborate on the definition of “appropriate progress” from case to case, it stated that, “the adequacy of a given IEP turns on the unique circumstances of the child for whom it was created.” Finally, The Supreme Court in Endrew declined to hold, as it declined to hold in Rowley, that “every handicapped child who is advancing from grade to grade... is automatically receiving a [FAPE].” Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty v. Rowley, 458 U. S. 176, 203, n. 25 (1982). A Student’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. v. Douglas 580 U.S. ___ (2017). “It cannot be the case that the Act typically aims for grade-level advancement for children with disabilities who can be educated in the regular classroom but is satisfied with barely more than de minimis progress for those who cannot.” Id.

• • DISTRICT’S BURDEN:
• • THE DEPARTMENT OF EDUCATION OFFERED STUDENT A FAPE FROM FEBRUARY 11, 2022 THROUGH THE 2022-2023 EXTENDED SCHOOL YEARS:
• • The District complied with the procedures set forth under the IDEA:

Under the IDEA, Parents have certain due process protections. Among those protections are the right to be fully informed of the process in their preferred language, the right to consent, the right to participate in the process and the right to challenge, which includes an impartial hearing and any subsequent appeals. In the instant matter, the hearing record supports the fact that Parent was fully involved in the IEP process. Parent was present at the IEP meeting along with representatives from the Private School and an advocate. The IEP developed by the Private School was also considered by the Committee on Special Education (CSE). (T.249-252), (T.272-274). Further, based upon the requirements set forth in 34 CFR Sec. 300.321, the IEP team does appear to have been duly constituted consisting of Parent, a Special Education Teacher, a District Representative, representative from the Private School, Parent Advocate, and staff from the Private School.

• • The School Location Letter was not untimely:

Parents have alleged that the school location letter they received on March 30, 2022, was untimely. However, this assertion ignores the complex procedural history involving Student’s attendance at the Private School.

On September 13, 2021, The New York State Education Department Commissioner issued a decision stating that New York City was not required to provide Student a FAPE as of the date of the decision unless or until Student reapplied to NYC Schools (DOE- Ex.5). There was no evidence presented that Student ever re-applied to New York City Schools, but the DOE nevertheless sent a meeting notice to Student’s Parent on January 5, 2022, informing them that the meeting was to take place on January 31, 2022 (DOE-Ex.1) (T.72). On January 18, 2022, Parent provided the DOE with informed consent to complete its evaluations of Student (DOE-Ex.6). This date triggers the sixty (60) school day requirement that the DOE has in order to provide Student with special education services and a proposed school location. See: 8 NYCRR Sec.200.4(e)(1). Therefore, I find that the DOE had until April 28, 2022.

Parents have argued that the development of an IEP by the DOE despite the ruling of the commissioner indicates that the DOE “accepted as fact” that Student was a resident of New York City (Parent closing briefs at p.12). However, given the considerably lengthy legal history involved with this Student, I find that the DOE’s attempt to mitigate any potential claims resulting from an allegation of denial of FAPE should not be held against them in this proceeding.

• • The February 11, 2022, IEP was reasonably calculated to enable Student to receive educational benefits:

As discussed supra, the goal of an IEP is to produce progress and not regression. An IEP must only be reasonably calculated to enable a child to obtain educational benefits in light of the student’s circumstances. See: Endrew F. v. Douglas County School District, 580 U.S. __, 14 (2017). Even if the services requested by Parent would better serve the student’s needs than the services offered in an IEP, this does not mean that the services are not appropriate as long as the IEP is reasonably calculated to provide the student with educational benefits (See: D.H. v. Poway Unified Sch. Dist., 211WL 883003, at 5 (S.D. Cal. Mar.14, 2011)

• • Music Therapy, Vision Education Services and Hearing Education Services are not required for Student to Receive a FAPE:

In the instant matter, Student may very well benefit from music therapy, vision education services and hearing education services. In fact, Student’s IEP developed by the Private School is convincing that Student does in fact derive benefits from all the above programs (P-Ex. P). However, providing these specific programs is not the obligation of the DOE so long as the goals of those programs can be met in other ways through other related services. See: Application of Student with a Disability, Appeal number 22-020.

Music Therapy:

The School Psychologist for the DOE testified that the DOE does not typically recommend music therapy for students, and it was not recommended for this specific Student either (DOE-Ex. 2-12). The Private School IEP did recommend Music Therapy with the express goal of exercising and stimulating functional movement patters (P-Ex. P-49) as well as the practice of executive functioning skills such as organization and problem solving, decision making, reasoning and comprehension as well as increase in comprehension of and ability to follow directions (P-Ex. P-50). Additionally, the stated goal was to increase purposeful vocalizations within the context of music therapy (P-Ex. P-50). The Private School IEP further states that music has the ability to help Student “regulate, focus, and relax” (P-Ex. P-50) and that the music therapy helps to promote “independence, choice and communication skills”. (P-Ex. P-31).

Despite Parent’s contention that music therapy would be required to address the above goals, and that Student required music therapy to receive a FAPE, a review of the DOE’s February 11, 2022 IEP revealed that many, if not all of, the areas and skills targeted during music therapy were also addressed through the various related services and special education (P. Ex. X) (T.83). Although the testimony of the School Psychologist was significantly lacking in terms of the explanation of exactly how these related services and special education address Student’s goals, a review of the IEP fills in the gaps in that testimony.

Specifically, the annual goals and resources identified to address Student’s needs targeted Student’s purposeful movement, as well as decision making and comprehension.

Regarding movement and exercise, the annual goals and/or short-term objectives of the DOE February 11, 2022, IEP targeted Student’s ability to reach for/point to everyday familiar objects (DOE. Ex.2-40), to be able to perform a single leg stance with assistance, to be able to stand on a BOSU balance trainer with assistance and perform the sit to stand test (DOE-Ex.2-41), to be able to ascend one flight of stairs without a handrail, with contact guard assistance, and to able to perform the TUDS test in a finite period (DOE. Ex 2-42). Also targeted in the annual goals was Student’s ability to improve her bilateral coordination skills and vision motor integration by reaching across midline to choose preferred toys (DOE. Ex 2-43). Moreover, Student’s movement with respect to basic self-care was also met in the annual goals regarding increased hand washing, improved participation in self feeding, clothing management, tolerance for toothbrushing and hair brushing (DOE.Ex.2-44). Student’s executive functioning skills are also targeted in the annual goals of the DOE February 11, 2022 IEP in that Student would, given a multimodal approach and sensory breaks, be able to indicate her preference for activity (DOE-Ex. 2-32), participate in two turns with a peer during a paired activity (DOE-Ex. 2-33), have an academic understanding of certain concepts such as weather, days of the week and which activity would come next in the day (DOE-Ex. 2-35).

Regarding decision making, reasoning, comprehension and other executive functioning skills, the IEP also has addressed those needs. Specifically, the goal of Student being able to maintain attention to a structured language task, demonstrate joint attention to a preferred activity as well as demonstrate functional play with the preferred activity (DOE-Ex. 2-38), the goal of Student being able to initiate/continue a cause-and-effect activity, request an item of action via multimodal means during structured activity and when provided two options (DOE-Ex. 2-39) and follow simple one step commands (DOE-Ex.-2-40), all show that the IEP significantly addressed the goals in a similar way to the Private School.

Finally, regarding the goal of purposeful vocalizations, the school psychologist testified that these goals would be specifically addressed through the DOE’s recommendation of speech therapy (T. 138).

Vision Education Services:

The Private School provided Student with Vision Education Services 1x per week for 60 minutes. According to the present levels of performance section of the Private School IEP, those who have a medical diagnosis of REDACTED, as Student does, are commonly diagnosed with “REDACTED”. In addition, students with REDACTED may experience visual field loss, oculomotor challenges, and Cortical Visual Impairment. Student has limited use of her vision and demonstrates decreased acuity, non-purposeful gazing, and light gazing behaviors. Throughout the day, Student can be observed looking at overhead lighting, brightly lit lamps near her or outside windows. She has a difficult time viewing complex images and images with patterns. When Student is observed navigating her environment, she relies heavily on muscle memory and planned regular routes rather than her vision. She does not look down or around her area when navigating the school. Student will localize to familiar sounds before using her vision. When reaching for an object, Student will not make eye-to-object connection, she explores tactually then will bring the object to her eyes to see it. When looking at an object, she requires extended wait time to focus and begin to engage with the object. (P- Ex. P-16).

The Private School IEP indicates among its goals of vision education for Student are for Student to sustain her visual gaze towards illuminated materials with increasing durations of visual attention (P-Ex. P-39), another goal is for student to reach to touch a visually accommodated object, picture or toy using a visually guided reach (P-Ex. P-39. The Private School IEP went on to discuss that the rationale for these services and goals were because Student required “intervention based upon visual needs along with a light and sound controlled room in order to help her learn how to use her vision with purpose” (P-Ex. P-40).

The IEP developed by the DOE indicated that vision education services had been requested and recommended in the draft IEP but were not included in the final IEP (DOE-Ex. 2-27). The reasoning for this not being included in the final IEP was because no visual diagnostic information was presented to the IEP team (DOE-Ex.2-27). The School Psychologist testified that she communicated the need for that information to Parent by way of email approximately one month after the IEP Meeting in which Parent expressed concerns over the lack of vision education services, and never received a response (T.96).

Despite this lack of information provided to the DOE, the IEP does address the unique vision needs of the Student and similarly addresses the goals listed in the Private School IEP as it pertains to Student. For example, the goals of the DOE IEP are for Student to sustain her visual gaze toward illuminated materials with increasing durations of visual attention (DOE- Ex.2-33), to establish eye contact with a familiar item or successfully display, to demonstrate extended duration of sustained gaze pattern with familiar accommodated display, to make eye contact with an accommodated object, to reach toward the location of an accommodated object without a visually guided reach (DOE. Ex. 2-34), to reach toward an accommodated object with a visually guided reach (DOE-Ex.2-35).

Hearing Education Services:

The Private School provided Student with Hearing Education Services 4x per week in 60-minute sessions “in support of increasing her understanding and use of language to communicate, process information and complete tasks” (P-Ex. P-24). The annual goals and short-term objectives from the Private School indicate that Student will be expected to “increase auditory comprehension skills by expanding her working vocabulary of frequently-used words/educational concepts as demonstrated by her ability to make choices and respond to familiar routine questions” (P-Ex. P-40).

Like Vision Education Services, the Hearing Education Services were requested by Parent and initially considered in the draft IEP, but not included in the final IEP (DOE-Ex. 2-27). The rationale for not recommending Hearing Education Services for Student was that this service is recommended for students who have a documented hearing loss, which Student does not (T. 90) (DOE-Ex. 2-27).

However, despite Hearing Education Services not being recommended in the final IEP prepared by the DOE, Student’s needs are addressed in different ways. Specifically, the annual goals and short-term objectives indicate that Student will be given sign language support and with that will demonstrate her understanding of academic concepts such as days of the week, weather, etc., (DOE-Ex.2-35). Student will also demonstrate increased responsiveness and expressive communication in academic and therapeutic contexts with sign language supports and multisensory materials (DOE-Ex. 2-36). Further goals are for Student to increase her pragmatic language skills by demonstrating an understanding of cause and effect with moderate support and multimodal cues (DOE-Ex. 2-37), and to increase her expressive language skills by utilizing total communication to request and continue an understanding of cause and effect with moderate clinician support and multimodal cues (DOE-Ex. 2-38).

It is important to note, as discussed in Application of a Student with a Disability, Appeal No. 22-071, “comparisons of a unilateral placement to the public placement are not a relevant inquiry when determining whether the district offered the student a FAPE; rather  it must be determined whether or not the district established that it complied with the procedural requirements set forth in the IDEA and State regulations with regard to the specific issues raised in the due process complaint notice, and whether the IEP developed by its CSE through the IDEA's procedures was substantively appropriate because it was reasonably calculated to enable the student to receive educational benefits—irrespective of whether the parent's preferred program was also appropriate (Rowley, 458 U.S. at 189, 206-07; R.E, 694 F.3d at 189-90; M.H., 685 F.3d at 245; Cerra, 427 F.3d at 192; Walczak, 142 F.3d at 132; see R.B. v. New York City Dep't. of Educ., 2013 WL 5438605 at *15 [S.D.N.Y. Sept. 27, 2013] [explaining that the appropriateness of a district's program is determined by its compliance with the IDEA's requirements, not by its similarity (or lack thereof) to the unilateral placement], aff'd, 589 Fed. App'x 572 [2d Cir. Oct. 29, 2014]; M.H. v. New York City Dep't. of Educ., 2011 WL 609880, at *11 [S.D.N.Y. Feb. 16, 2011] [finding that "'the appropriateness of a public school placement shall not be determined by comparison with a private school placement preferred by the parent'"], quoting M.B. v. Arlington Cent. Sch. Dist., 2002 WL 389151, at *9 [S.D.N.Y. Mar. 12, 2002]; see also Angevine v. Smith, 959 F.2d 292, 296 [D.C. Cir. 1992] [noting the irrelevancy comparisons that were made of a public school and unilateral placement]; B.M. v. Encinitas Union Sch. Dist., 2013 WL 593417, at *8 [S.D. Cal. Feb. 14, 2013] [noting that "'[e]ven if the services requested by parents would better serve the student's needs than the services offered in an IEP, this does not mean that the services offered are inappropriate, as long as the IEP is reasonably calculated to provide the student with educational benefits'"], quoting D.H. v. Poway Unified Sch. Dist., 2011 WL 883003, at *5 [S.D. Cal. Mar. 14, 2011]).”

As such, a review of the February 11, 2022 IEP prepared by the DOE demonstrates that said IEP provided special education and related services—albeit in a different way than those the parent preferred—and supports to address Student's needs which the Private School addressed through music therapy, hearing education services and vision education services (see N.K. v. New York City Dep't of Educ., 961 F. Supp. 2d 577, 592-93 [S.D.N.Y. 2013] [finding that, although the evidence may have supported that music therapy was beneficial for the student, it did not support the conclusion that the student could not receive a FAPE without it]).

• • School location recommendation:

In their DPC Parent alleges that the proposed school location for Student was inappropriate. In support of that position Parent argued that it was implausible for the Public School to meet Students related service requirements due to limited staff to student ratio. (Parent Closing Brief, P.14). Additionally, Parent argues that Student would not be in right classroom environment with appropriate peer models. The DOE, counterargues that both allegations are merely speculative in nature.

The Assistant Principal of the Public School testified that her school would have been able to implement the IEP and the recommendations for the school years challenged in the within hearing (T.147). There was not sufficient evidence either by way of witness testimony, subpoenaed or other documentary evidence to establish that the Public School would be unable to implement Student’s IEP therefore the arguments are speculative in nature Application of a Student with a Disability, Appeal No. 22-020.

The sufficiency of a public-school placement must typically be determined by the IEP itself (R.E., 694 F.3d at 186-88). “The Second Circuit has explained that "[s]peculation that the school district will not adequately adhere to the IEP is not an appropriate basis for unilateral placement" (R.E., 694 F.3d at 195; see E.H. v. New York City Dep't of Educ., 611 Fed. App'x 728, 731 [2d Cir. May 8, 2015]; R.B. v. New York City Dep't of Educ., 603 Fed. App'x 36, 40 [2d Cir. Mar. 19, 2015] ["declining to entertain the parents' speculation that the 'bricks-and-mortar' institution to which their son was assigned would have been unable to implement his IEP"], quoting T.Y. v. New York City Dep't of Educ., 584 F.3d 412, 419 [2d Cir. 2009]; R.B., 589 Fed. App'x at 576).  However, a district's assignment of a student to a particular public school site must be made in conformance with the CSE's educational placement recommendation, and the district is not permitted to deviate from the provisions set forth in the IEP (M.O., 793 F.3d at 244; R.E., 694 F.3d at 191-92; T.Y., 584 F.3d at 419-20; see C.F. v. New York City Dep't of Educ., 746 F.3d 68, 79 [2d Cir. 2014] [holding that while parents are entitled to participate in the decision-making process with regard to the type of educational placement their child will attend, the IDEA does not confer rights on parents with regard to the selection of a school site]).  The Second Circuit has held that claims regarding an assigned school's ability to implement an IEP may not be speculative when they consist of "prospective challenges to [the assigned school's] capacity to provide the services mandated by the IEP" (M.O., 793 F.3d at 245; see Y.F. v. New York City Dep't of Educ., 659 Fed. App'x 3, 5-6 [2d Cir. Aug. 24, 2016]; J.C. v. New York City Dep't of Educ., 643 Fed. App'x 31, 33 [2d Cir. Mar. 16, 2016]; B.P. v. New York City Dep't of Educ., 634 Fed. App'x 845, 847-49 [2d Cir. Dec. 30, 2015]).  Such challenges must be "tethered" to actual mandates in the student's IEP (see Y.F., 659 Fed. App'x at 5).  Additionally, the Second Circuit indicated that such challenges are only appropriate, if they are evaluated prospectively (as of the time the parent made the placement decision) and if they were based on more than "mere speculation" that the school would not adequately adhere to the IEP despite its ability to do so (M.O., 793 F.3d at 244).  In order for such challenges to be based on more than speculation, a parent must allege that the school is "factually incapable" of implementing the IEP (see M.E. v. New York City Dep't of Educ., 2018 WL 582601, at *12 [S.D.N.Y. Jan. 26, 2018]; Z.C. v. New York City Dep't of Educ., 2016 WL 7410783, at *9 [S.D.N.Y. Nov. 28, 2016]; L.B. v. New York City Dept. of Educ., 2016 WL 5404654, at *25 [S.D.N.Y. Sept. 27, 2016]; G.S. v. New York City Dep't of Educ., 2016 WL 5107039, at *15 [S.D.N.Y. Sept. 19, 2016]; M.T. v. New York City Dep't of Educ., 2016 WL 1267794, at *14 [S.D.N.Y. Mar. 29, 2016]).  Such challenges must be based on something more than the parent's speculative "personal belief" that the assigned public school site was not appropriate (K.F. v. New York City Dep't of Educ., 2016 WL 3981370, at *13 [S.D.N.Y. Mar. 31, 2016]; Q.W.H. v. New York City Dep't of Educ., 2016 WL 916422, at *9 [S.D.N.Y. Mar. 7, 2016]; N.K. v. New York City Dep't of Educ., 2016 WL 590234, at *7 [S.D.N.Y. Feb. 11, 2016]).” Application of a Student with a Disability, Appeal No. 22-071.

Regarding Parent's claims related to the functional grouping of the proposed class at the assigned public school, “neither the IDEA nor federal regulations require students who attend a special class setting to be grouped in any particular manner.  The United States Department of Education has opined that a student must be assigned to a class based upon his or her "educational needs as described in his or her IEP" and not on "a categorical placement," such as one based on the student's disability category (Letter to Fascell, 18 IDELR 218 [OSEP 1991]).  While unaddressed by federal law and regulations, State regulations set forth some requirements that school districts must follow for grouping students with disabilities.  State regulations provide that in many instances the age range of students in a special education class in a public school who are less than 16 years old shall not exceed 36 months (8 NYCRR 200.6[h][5]).  State regulations also require that in special classes, students must be suitably grouped for instructional purposes with other students having similar individual needs (8 NYCRR 200.1[ww][3][ii]; 200.6[a][3], [h][3]; see Walczak, 142 F.3d at 133 [approving an IEP that placed a student in a classroom with students of different intellectual, social, and behavioral needs, where sufficient similarities existed]).[11]  State regulations further provide that determinations regarding the size and composition of a special class shall be based on the similarity of the individual needs of the students according to levels of academic or educational achievement and learning characteristics, levels of social development, levels of physical development, and the management needs of the students in the classroom (see 8 NYCRR 200.6[h][2]; see also 8 NYCRR 200.1[ww][3][i][a]-[d]).  Grouping in the areas of academic or educational achievement, social development, physical development, and management needs collectively as "functional grouping" to distinguish that set of requirements from grouping in accordance with age ranges (see, e.g., Application of a Student with a Disability, Appeal No. 17-026).” Application of a Student with a Disability, Appeal No. 22-071.

Student’s February 11, 2022 IEP recommended for Student to receive instruction in a 6:1:1 class in a specialized school (P-Ex-R-50). Student never attended the recommended public school as that Student was unilaterally placed at the Private School immediately upon arriving in the New York City jurisdiction and specifically moved into the New York City Jurisdiction to obtain services at the Private School (T. 308). Since Student never attended the recommended public school placement, any claims related to a particular class or the students who may have made up the class is purely speculative in nature. “Deficiencies in functional grouping when a student has not yet attended the proposed classroom at issue tend to be speculative in nature (J.C., 643 Fed. App'x at 33 [finding that "grouping evidence is not the kind of non-speculative retrospective evidence that is permissible under M.O." where the school possessed the capacity to provide an appropriate grouping for the student, and plaintiffs' challenge is best understood as "[s]peculation that the school district [would] not [have] adequately adhere[d] to the IEP"], quoting R.E., 694 F.3d at 195).  Various district courts have followed this precedent post M.O. (G.S., 2016 WL 5107039, at *15 [same]; L.C. v. New York City Dep't of Educ., 2016 WL 4690411, at *4 [S.D.N.Y. Sept. 6, 2016] ["Any speculation about which students [the student] would have been grouped with had he attended [the proposed placement] is just that—speculation.  And speculation is not a sufficient basis for a prospective challenge to a proposed school placement"], citing M.O., 793 F.3d at 245).  “Application of A Student with a Disability, Appeal No. 22-071.

Parent testimony further supports the speculative nature of her concerns that Student would not be appropriately grouped. Parent’s testimony lacked any specific or concrete knowledge not only of district REDACTED, schools but also of the specific public-school placement.

The Special Education Director at the Private School testified that in her own experience with a district REDACTED, school, the students tend to be on the more severe end of the autism spectrum (T. 225), and they tend to be “very withdrawn” “very often aggressive or self-injurious (T. 225). She went on to testify that because of Student’s unique needs, she would be unable to keep herself safe if someone was being aggressive toward her and would not have the ability to process that information. (T.226) However, she further testified that her personal knowledge of the district REDACTED, schools was approximately eleven (11) years ago (T. 224) and that she did not have any personal knowledge of the IEPs of students in district REDACTED, schools, save for one student whom she tutored (T.240).

While parents are free to choose private schooling, like the within Private School, in which they feel all the children in the classroom fit their preferred characteristics and disability categories, overall, this is not a case in which the evidence shows that the public-school site is "factually incapable" of implementing the IEP.

Accordingly, based on the above, I decline to find that the DOE would have been incapable of implementing the February 11, 2022 IEP or that the functional grouping of the students was inappropriate.

• • Assistive Technology Device:

Parents have further asserted that the DOE denied Student a FAPE for failure to provide assistive technology devices to Student. The DOE argues that the argument lacks merit as there is no requirement that the DOE provide any assistive technology devices to Student given that Student is enrolled unilaterally in the Private School.

Neither party disputes that Student requires an assistive technology device, specifically an AAC or augmentative and alternative communication device such as a single switch (T.207). According to the Special Education Director at the Private School, the Private School has provided said devices to Student as that the DOE never has done so (T.208).

Failure to physically provide the actual device to Student by the DOE does not result in a denial of FAPE. The DOE appropriately recommended assistive technology devices in their IEP (DOE-Ex.2-51). Parents have unilaterally placed Student at the Private School and are now seeking funding of tuition at the private school (P-Ex. A). A review of Parent’s tuition agreement with the Private School (P-Ex.-I-1) for the 2021-2022 school year indicates that the Private School will provide the “academic and related service programming as outline in Student’s most recent individualized education program (“IEP”) issued by Students local school district…”, this indicates that these devices are already being supplied by the private school and were “part and parcel of the overall program and placement offered by the private school” Application of a Student with a Disability, Appeal No. 21-156. Therefore, any additional award of assistive technology devices and services to be provided by the DOE would be unnecessarily duplicative.

This related service cost should not be treated any differently than the cost for tuition and based upon the tuition agreement cited above, appears to be included, as well for the 2022-2023 school year assuming the agreement is the same as the 2021-2022 school year. It is necessary to assume, as that Parent failed to provide any tuition agreement for the 2022-2023 school year between Parent and the Private School.

Based upon all of the above, I find that the DOE offered Student a FAPE from February 11, 2022 through the end of the 2022-2023 school year.

• • PARENT’S BURDEN:
• • THE UNILATERAL PLACEMENT IS AN APPROPRIATE PLACEMENT FOR STUDENT:

Since your undersigned IHO has found that that District did in fact offer a FAPE to Student, it is not necessary to continue in this legal and factual analysis. Nevertheless, I will continue discussions for purposes of any appellate level review.

Parents seeking reimbursement “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate” Gagliardo, at 112; see M.S. v. Bd. Of Educ., 231 F.3d 96, 104 [2d Cir. 2000]). “Subject to certain limited exceptions, ‘the same considerations and criteria that apply in determining whether the school district's placement is appropriate should be considered in determining the appropriateness of the parents’ placement…’” Gagliardo, at 112, quoting Frank G. v. Bd. of Educ., 459 F.3d 356, 364 (2d Cir. 2006). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). When determining whether the parents' unilateral placement is appropriate, ultimately, the issue turns on whether that placement is “reasonably calculated to enable the child to receive educational benefits” (Frank G., 459 F.3d at 364; Gagliardo, 489 F.3d at 115). A private placement is only appropriate if it provides educational instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; 34 CFR 300.39[a][1]; Educ. Law § 4401[1]; 8 NYCRR 200.1[ww]; Rowley, 458 U.S. at 188-89).

A Private School placement must be “proper under the Act” (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the Private School must provide an educational program which meets the student's special education needs. See, Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129. A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The Private School need not employ certified special education teachers or have its own IEP for the student (id. at 14). The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.

“Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child’s individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child’s potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.” (Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).

After reviewing the testimony and evidence provided, I find that Parent has met that burden.

The Private School Director testified that the Private School is a “highly specialized program for students who are primarily non-verbal and non-ambulatory, who have brain injuries or brain-based disorders that are significant enough that they need very specialized programs with extended mandates and extended school day” (T. 198). She further testified that all the students have one to one paraprofessionals and approximately forty percent of the students have one-to-one nursing services (T.198). The class sizes vary from six to eight students (T.200) and in the class size of six, almost all the students, including Student, utilize AAC devices for communication, and the Private School assists in facilitating that usage (T. 200).

Within the Private School, each Student is provided with their own educational program through their own IEP developed by the Private School (T. 200-201). Through this program, Student receives related services in 60-minute increments (T.211). The Director testified that 60 minutes is important for Student because she has a multitude of skills to work on in each discipline of hearing and vision education services, Speech Therapy, Physical Therapy, and Occupational Therapy (T. 211). For example, in Speech Therapy, while many students might work on articulation, Student is working on expressive and receptive language, and oral motor skills for things like safe feeding (T.211-212). Additionally, Student requires extra processing time. (T. 212). In Physical Therapy, Student works on her balance and endurance, but also her safety awareness, but due to her strength and lack of transfer requirements to/from a wheelchair, does not require the additional time and thus Physical Therapy is in a 45-minute increments (T.212, 214). In Occupational Therapy, Student is working on daily living activities, but also fine motor skills, cognitive skills, and occupational skills that enable her participation in a classroom setting and skills that would carry over into a community or job-related setting in the future (T. 212-213). Student is also receiving vision education services (T.214), music therapy (T.216) and hearing education services (T. 217).

Regarding the educational program at the Private School, Student is placed in a 6:1:1 class with students who are each in the age range of REDACTED years old to REDACTED years old, they are all non-verbal and non-ambulatory and are all at the pre-k level for literacy and math (T. 234-235). All the students grouped with Student are either in a wheelchair or need significant assistance with ambulation (T. 234-235). All the students grouped with Student utilize an AAC device to communicate as the class is completely non-verbal and all have some nursing needs as well as a one-to-one para (T.235). The Director also testified that it was her belief that Student always made progress while attending the Private School (T.253). By way of example, when Student first attended the Private School, she had difficulty with stair usage. (T. 206). After practice, she took to it very quickly and wanted to practice more. The Director testified that Student has shown “a lot of progress” in the time she has been enrolled in the Private School (T.206). Aside from that one area of progress, the Director testified that Student has also progressed in her “ability to respond and show receptive understanding to what is going on around her" (T. 206). This includes, following one step directions, ability to copy and mimic what someone else is doing. (T.206). Student has also increased her attention and ability to understand and try various tasks (T.207). Student has increased her usage of the Private School supplied AAC device (a single switch device) for communication and has increased her understanding of cause and effect (T.207, 208). Student’s core vocabulary for words such as “stop” “go” “more” and others has also increased (T.207).

Parent also testified and stated that Student is making “great” progress at the Private School and is “thriving” (T. 266). Parent testified that Student is now feeding herself, climbing stairs, notifying a caretaker when she needs to use the bathroom, and communicating effectively utilizing her AAC device since being enrolled at the Private School (T.266, 267). Student is also now able to try to brush her hair or someone else’s hair and she can try to brush her own teeth (T.267-268).

Based upon the above, the Private School Program appears to have been reasonably calculated to allow Student to obtain educational benefits for the time periods in question. While a finding of progress is not required for a determination that Student’s unilateral placement is adequate, it is nevertheless a relevant factor to be considered (Gagliardo, 489 F.3d at 115, citing Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21, 26-27 [1st Cir. 2002]).

The record establishes that Student responded well to the uniquely tailored therapeutic setting provided by the Private School. The Parent has met their burden of establishing that the Private School was reasonably calculated to serve Student’s unique needs.

Based upon the above, I find that, if the DOE had failed in their offer of a FAPE to Student, the Private School was an appropriate placement for the Student for the school years at issue.

• • EQUITABLE CONSIDERATIONS:

Equitable considerations are relevant in determining relief “because the authority to grant reimbursement [under the IDEA] is discretionary.” Frank G., 459 F.3d at 363-64 (quoting, Burlington, 471 U.S. at 374).

The equities in this case are not straight forward. The evidence presented at the impartial hearing irrefutably shows that Parent and Student were residents of the REDACTED, at the time they decided to move to New York for the sole purpose of attending the Private School and that this decision was made after the founder of the private school reached out to Parent (T.306). Parent further testified that the Private School has paid for Parent and Student’s apartment in New York City (T.307-308). All of this information, when taken together, indicates to your undersigned IHO that Parent never had any intention of availing Student of a public-school placement. In fact, Parent, in her own testimony, stated that she moved to New York City so that student could attend the Private School.

The relevant time periods at issue in this case are February 11, 2022 through the end of the 2022-2023 school year. The Parent testified that she and Student are at present, not physically residing within the confines of New York City. The Parent testified that she left the jurisdiction with Student and has been back to REDACTED, since April 30, 2022 where Student is receiving remote instruction (T.315). There was no testimony in the record regarding what, if any, specific instruction Student is receiving remotely. For example, is the Student also receiving her related services remotely? Is the Student receiving her one-to-one para remotely? Is the Student receiving her nursing care remotely? Does Student still have access to her switch device? How many hours per day is Student receiving instruction? All these services are included in the Private School contract for which Student is seeking the DOE be responsible to pay for the 2021-2022 School Year (P-Ex. I), and assuming the agreement is the same for the 2022-2023 school year, would also be included in that school year tuition as well (again, as previously stated, assumptions are necessary in that there is no tuition agreement included in the Parent’s evidence packet for the 2022-2023 school year). There are too many questions left unanswered regarding the remote instruction and/or services provided to Student while she remains out of the jurisdiction of New York City. Since this testimony was not elicited and the information is not contained within the documentary evidence submitted into the record by Parent, there does not exist sufficient evidence for your undersigned IHO to grant any award of transportation, tuition or related services after the Student left New York City for her trip back to the REDACTED, from April 30, 2022 until her possible return to New York City and her potential receipt of special educated and related services for the 2022-2023 School Year. The words “potential receipt” is used as, once again, that there is no contract in the record for Student to attend the Private School for the 2022-2023 School Year.

Moreover, Parent testified that she was unsure if she would even be responsible for the payments if she did not prevail in the within decision (T. 350) and that she has not made any payments to the Private School, not even a deposit (T.350). A party seeking relief must show a contractual obligation to pay for services E.M. v. New York City Dept. of Educ., 758 F.3d 442, 449-62 (2d Cir.2014); Cruz v. New York City Dept. of Educ., 2019WL147500 4-7 (SDNY 2019); Application of Student with a Disability, SRO No. 20-042; Application of Student with a Disability, SRO 16-044, 8. Parents cannot assert a claim for funding of services on behalf of another party where they have incurred no obligation to pay the tuition and thus have no claim in their own right. Malone v. Nielson, 747 F.3d 934, 937 (7th Cir. 2007).

Parent also failed to provide not only a contract for the 2022-2023 school year, but also failed to provide a ten-day notice to the DOE for the 2022-2023 school year. Parents who are seeking funding of unilaterally obtained services must provide the district with notice of their intention to unilaterally enrolled the student in a private placement. The Parent did, however, provide notice for the 2021-2022 school year. Contrary to the DOE’s contention that this notice is irrelevant due to a subsequent finding that Student was not a residence of the New York City jurisdiction, I find that proper notice was given for the 2021-2022 school year (P-Ex. H). Based upon all of the above, if it were necessary to reach a decision on the equities, it is clear that, at the very least, a reduction in the total amount of tuition awarded should be Ordered for the periods of time that Student was not physically present in the jurisdiction due to lack of evidence in the record, and if Parent cannot show the implementation unit that Student is enrolled for the 2022-2023 School Year and that they are responsible for the tuition should they not prevail at the hearing, then no tuition reimbursement should be Ordered to be paid by the DOE for the 2022-2023 School Year.

• • TRANSPORTATION EXPENSES:

Entitlement to the provision of transportation to and from school by the District is warranted where “a student lives within 50 miles of a nonpublic school which a child with a handicapping condition attends, if such child has been so identified by the local committee on special education …”. New York State Education Law § 4402 (2)(d).    It is undisputed that Student falls within the confines of that statute because Student is a child with a handicapping condition who has been identified as such by the applicable CSE. (P-Ex. C) Moreover, the Student resides less than 50 miles from the Private School (P-Ex. A), as is required by the applicable statute.  Therefore, Parent established that Student meets the statutory geographic and distance requirement and thus the claim for transportation to and from School from February 11, 2022 through the 2022-2023 school year would be warranted, if Student had been denied a FAPE, less any period that Student was not physically present in the New York City Jurisdiction and less any period for which Student was not enrolled in the Private School.

• • STUDENT IS ENTITLED TO PUBLICALLY FUNDED INDEPENDENT EDUCATIONALAND TRANSITIONAL EVALUATIONS:

In the DPC, Parent further requests funding for Independent Educational and Transitional Evaluations of Student. Though never discussed in detail in any testimony at the impartial hearing or in Parent’s closing brief, and thus not narrowed down in any way, the main areas of disagreement based on the hearing record, are vision education services and hearing education services.

State and Federal regulations clearly guarantee that such a right to obtain an independent evaluation exists for parents. See: 20 U.S.C. § 1415 (b)(1); 34 C.F.R. 300.502; 8 N.Y.C.R.R. § 200.5(g). However, regarding reimbursement there must be some level of disagreement with the official evaluation conducted by the school district. See: R.L. v. Plainville Bd. Of Educ., 363 F. Supp. 2d 222 (D. Conn. 2005).

The case law interpreting the IDEA does leave the nature of said disagreement somewhat amorphous. It certainly does not need to take any form of formalized notice. See: Glen v. New Haven Bd. Of Educ., 219 F. Supp. 3d 296, 317 (D. Conn. 2016) stating “all a parent must do is disagree with an evaluation obtained by the public agency.” D.S. v. Trumbull, 975 F.3d 152, 168 (2d Cir. 2020). So, the gravamen of the issue presented is whether the Petitioner in the present case “disagreed” with the formal assessment conducted by the local educational agency. Furthermore, a parent has a right to an Independent Educational Evaluation at public expense unless the LEA decides to initiate an impartial hearing to defend its present evaluation. See: 34 C.F.R. §300.502(b)(2); Letter to Baus, 65 IDELR 81 (OSEP 2015). The Parent simply must “disagree” with the presently conducted evaluation and notify the Department of Education of such disagreement.

As stated above, such disagreement does not need to take on any specific format or formalized notice. See: Glen v. New Haven Bd. of Educ., Id. Thus, we can infer that even a verbalized request or displeasure could be sufficient. In the present case, there was a formal request in the form of a Due Process Complaint filed for the 2021-2022 and 2022-2023 extended school years (P-Ex. A), which can easily be interpreted as a “disagreement” with any formal assessment that may have been conducted. Student is therefore entitled to full independent educational evaluations at public expense in the areas of vision education services and hearing education services.

• • REQUEST FOR RECONVENED IEP MEETING:

Parent further requests for the IEP team to re-convene to address any changes as necessary. Based upon the above finding that Student is entitled to an IEE in the areas of vision education services and hearing education services, I find that Parent request for a reconvened IEP meeting is reasonable once the IEEs are obtained.

ORDER:

IT IS HEREBY ORDERED

• • The DOE must provide Parent with authorizations to allow funding of the following Independent Educational Evaluations with providers of Parent’s choosing: Hearing Education Services and Vision Education Services
• • The DOE must consider all evaluative data collected after the February 11, 2022 CSE meeting and to reconvene a CSE meeting to consider the additional data which may be included in the Ordered Independent Educational Evaluations.
• • All Additional relief requested by Parent is denied it is entirety.

Dated: August 29, 2022

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 of 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 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, and proof of service with the Office of State Review of the State Education Department within two days after the 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 A – PERSONALLY IDENTIFIABLE INFORMATION

REDACTED, a minor, by and through her parents, REDACTED, & REDACTED, v. New York City DOE, CSE Region REDACTED, Student REDACTED, Parent REDACTED, Private School REDACTED,

Private School Director REDACTED,

School Psychologist REDACTED,

Assistant Principal REDACTED,

APPENDIX B – ADMITTED EXHIBITS

REDACTED, a minor, by and through her parents, REDACTED, & REDACTED, v. New York City DOE, CSE Region REDACTED,

DEPARTMENT OF EDUCATION EXHIBITS:

EXHIBIT

DATE

NAME

PAGES

1

January 5, 2022

Meeting Notice Committee on Special Education

3

2

February 11, 2022

Individualized Education Program

59

3

January 25, 2022

Psychoeducational Evaluation

7

4

March 30, 2022

Prior Written Notice and School Location Letter

6

5

September 13, 2021

New York State Education Department- Decision Number 18,047

4

6

January 19, 2022

Social History Update

3

7

June 7, 2020

REDACTED Recommended Individualized Education Plan

25

8

May 21, 2021

REDACTED Recommended Individualized Education Plan

32

9

June 17, 2022

Email from REDACTED to REDACTED with attachments (1) Prior written notice, (2) school location letter, and (3) Parent notification of participation in New York State Alternate Assessment

9

PARENT EXHIBITS:

PARENT EXHIBIT

DATE

DESCRIPTION

NUMBER OF PAGES

A

03/16/2022

Due Process

Complaint –

IH # 225244

2021-23 School Years

7

B 02/19/2020 REDACTED IEP 25

C 06/09/2020 NYC DOE IEP 30

D 03/16/2021 REDACTED IEP 28

E 04/15/2021 REDACTED Quarterly Progress Report 2021-22 School Year 9

F 05/07/2021 NYC DOE IEP 39

G 06/16/2021 Prior Written Notice & School Location Letter 6

H 06/23/2021 Ten Day Notice 2021-22 School Year 2

I 07/08/2021 REDACTED Enrollment Contract 2021-22 School Year 7

J 07/14/2021 NYC DOE Determination Letter 1

K 07/26/2021 Transportation Agreement 2021-22 School Year 5

L 09/30/2021 REDACTED Quarterly Progress Report 2021-22 School Year 8

M 01/18/2022 Level I Vocational Interview 3

N 01/18/2022 Social History Update 3

O 01/25/2022 Psychoeducational Evaluation 7

P 02/10/2022 REDACTED IEP 59

Q 02/15/2022 Request for Medical Transportation Accommodations 1 R 02/11/2022 (amended May 2022) NYC DOE IEP 59

S 03/03/2022 Prior Written Notice & School Location Letter 6

T 05/09/2022 Prior Written Notice 4

U 2021-2022 REDACTED Schedule 1

V 06/17/2022 Affidavit of REDACTED 2

W 06/17/2022 Affidavit of REDACTED 4

X 02/11/2022 NYC DOE IEP 59

IHO EXHIBITS:

IHO EXHIBIT

DATE

DESCRIPTION

NUMBER OF PAGES

I

03/21/2022

Notice of IHO Appointment & Potential Consolidation

2

II

04/20/2022

Consolidation Order

2

III

06/18/2022

Interim Order

4

Footnotes

[1] Personally identifiable information is attached as Appendix A to this decision and must be removed prior to public distribution.

[2] Exhibits shall be referred to as follows: “P” for Parent Exhibit; “DOE” for the District’s or Department’s Exhibits; and “IHO” for the Impartial Hearing Officer’s exhibits. Reference to the Transcript shall be referred to as “T”.

[3] In 2004, Congress reauthorized the Individuals with Disabilities Education Act as the Individuals with Disabilities Education Improvement Act. See Pub. L. No. 108-446, 118 Stat. 2647 (Dec. 3, 2004), effective July 1, 2005. The amendments provide that the short title of the reauthorized and amended provisions remains the Individuals with Disabilities Education Act. See Pub. L. 108-446, § 101, 118 Stat. at 2647; 20 U.S.C. § 1400 (2006) (“This chapter may be cited as the ‘Individuals with Disabilities Education Act.”).