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Special Education Law
DECISIONDistrict PrevailedIHO Case No. 225620

New York City Department of Education, Impartial Hearing Decision

July 12, 2022·representative (Educ. Law § 4402; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.3, 200.4[d][2]). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing (20 U.S.C. §§ 1221e-3, 1415[e]-[f]; Educ. Law § 4404[1]; 34 CFR 300.151-300.152, 300.506, 300.511; 8 NYCRR 200.5[h]-[l]).

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

CASE NUMBER: 571686 - NYC: 225620

NEW YORK CITY OFFICE OF ADMINISTRATIVE

TRIALS AND HEARINGS (OATH)

SPECIAL EDUCATION HEARINGS DIVISION

STUDENT, a Minor, by and through his/her Parent(s),

PETITIONER FINDINGS OF FACT AND DECISION

against Case # 225620 THE NEW YORK CITY Dustin Johnson, Esq.

DEPARTMENT OF EDUCATION, Impartial Hearing Officer

RESPONDENT

FINDINGS OF FACT AND DECISION

I. Introduction

This proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482; the federal regulations implementing IDEA, 34 C.F.R. §§ 300.1, et seq.; Article 89 of the New York State Education Law; and the New York State regulations at 8 NYCRR § Part 200, et seq.

The undersigned Impartial Hearing Officer (“IHO”) is a certified New York State Special Education Hearing Officer, employed by the New York City Office of Administrative Trials and Hearings as a Special Education Impartial Hearing Officer, and meets all of the qualifications and requirements outlined in both federal and state statute which grant me the authority to adjudicate this hearing. Furthermore, the undersigned is not currently, nor have I ever been, an employee of the NYC Department of Education. Finally, I do not have any personal or professional interest or bias that conflicts with my objectivity to hear this matter.

II. Overview – Administrative Procedures

When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (“IEP”), which is delegated to a local Committee on Special Education (“CSE”) that includes, but is not limited to, parents, teachers, a school psychologist, and a district representative (Educ. Law § 4402; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.3, 200.4[d][2]). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing (20 U.S.C. §§ 1221e-3, 1415[e]-[f]; Educ. Law § 4404[1]; 34 CFR 300.151-300.152, 300.506, 300.511; 8 NYCRR 200.5[h]-[l]).

New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding "any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student" (8 NYCRR 200.5[i][1]; see 20 U.S.C. § 1415[b][6]-[7]; 34 CFR 300.503[a][1]-[2], 300.507[a][1]). First, after an opportunity to engage in a resolution process, the parties appear at an impartial hearing conducted at the local level before an Impartial Hearing Officer (“IHO”) (Educ. Law § 4404[1][a]; 8 NYCRR 200.5[j]). An IHO typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine, and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five business days before the hearing; and obtain a verbatim record of the proceeding (20 U.S.C. § 1415[f][2][A], [h][1]-[3]; 34 CFR 300.512[a][1]-[4]; 8 NYCRR 200.5[j][3][v], [vii], [xii]). The IHO must render and transmit a final written decision in the matter to the parties not later than 45 days after the expiration period or adjusted period for the resolution process (34 CFR 300.510[b][2], [c], 300.515[a]; 8 NYCRR 200.5[j][5]). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with state and federal regulations (34 CFR 300.515[c]; 8 NYCRR 200.5[j][5]). The decision of the IHO is binding upon both parties unless appealed (Educ. Law § 4404[1]). A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (“SRO”) (Educ. Law § 4404[2]; see 20 U.S.C. § 1415[g][1]; 34 CFR 300.514[b][1]; 8 NYCRR 200.5[k]).

III. Background and Procedural History

Petitioner is the parent of STUDENT (“Student”). On April 1, 2022, Petitioner filed a Due Process Compliant (“Complaint” or “DPC”) against the New York City Department of Education (“NYC DOE” or “DOE” or “District”) pursuant to the Individuals with Disabilities Education Act (“IDEA”) (See P-A).

On April 7, 2022, the undersigned IHO was appointed to preside over this case. On May 3, 2022, a prehearing conference was held in the above matter virtually via WebEx (See Exhibit IHO-1). On May 25, 2022, an impartial hearing on the merits of the DPC was held and continued to June 16, 2022, on which day it was completed.

In her DPC, the Parent alleged, generally, that the DOE failed to provide the student a free appropriate public education (“FAPE”) for the 19/20, 20/21, 21/22, and 22/23 school years by, among other things, failing to timely evaluate, classify, and provide the student with an IEP (P-A). The parent further alleges that this failure represented a “child find” violation and denied the student a FAPE (id.). To support this argument, the parent avers that prior to the student’s classification in March 2022, the student had evident learning problems, consistently exhibited poor academic progress, and that the District was aware of the student’s learning issues (id.). In addition, the parent alleges that once the student was classified in the March 24, 2022, IEP, (which the parent alleged was substantively deficient and improperly comprised), the District failed to provide the student with the supports and services she needs (id.). To support this argument, the parent avers that the District “failed to adopt or even seriously consider” the recommendations of the independent neuropsychological evaluation and recommended insufficient and inappropriate services in the IEP (id.). In sum, the parent alleges that “the DOE failed to address [the student’s] needs in a meaningful fashion by failing to provide services and instruction reasonably calculated to provide educational benefit. [The student] requires additional supports and more intensive services, such as SETSS provided on an individual (1:1) basis, 1:1 specialized reading/math/writing instruction, a 1:1 teaching assistant, a smaller class placement, a specialized non-public school placement, or a combination of these services. The failure to provide [the student] with sufficient supports and services to enable her to make meaningful progress has denied her a FAPE for all school years at issue in this hearing request” (id.). The parent further alleged that there was a denial of services during COVID and that the DOE failed to provide appropriate prior written notice and impeded the parent’s right to participate (id.).

For relief, the parent sought a finding that the student was denied a FAPE; an order that the student be provided with an appropriate IEP that provides for increased supports and services; 723 hours of 1:1 tutoring, without expiration, to be provided by REDACTED (“REDACTED”) at a rate of $105 per hour; funding for REDACTED's diagnostic testing and registration; transportation for the parent and the student to and from REDACTED in the form of Metrocards; and an order that the parent be reimbursed all out of pocket costs and expenses related to the student’s tutoring at REDACTED (id.).

IV. Preliminary Matter – Motion to Dismiss

On May 18, 2022, Respondent submitted a Motion to Dismiss the Due Process Complaint as it relates to the claims pertaining to the 2022-2023 school year (See DOE-11). The District argued that the claims pertaining to the 2022-2023 school year are premature, speculative, and not ripe for adjudication (id.). On May 23, 2022, the Petitioner filed a reply, arguing that the March 24, 2022, IEP is the operative IEP entering the 2022-2023 school year and is ripe for challenge (See P-N).

The undersigned issued an oral ruling at the Due Process Hearing on May 25, 2022, granting the Petitioner’s application and dismissing the claims related to the 2022-2023 school year, without prejudice, as not ripe for adjudication.

V. Findings of Fact The student was tested at REDACTED (“REDACTED”) on October 1, 2021, and was found by REDACTED to be operating at least five years below her current grade level in both verbal (ELA) and math skills and to have significant gaps in her academic skills across all areas (P-J-2 at p. 5). Some of REDACTED’s conclusions are at odds with and directly contradicted by other evaluative data, including data obtained by the Petitioner’s own Neuropsychological evaluation, as further discussed below (see P-E-15; DOE-3).

On October 20, 2021, the parent submitted a formal written request to the District for the student to be evaluated to determine whether the student has an educational disability that would make her eligible for special education services (P-C).

As part of the initial evaluation of the student, the hearing record includes a November 1, 2021, social history report, a November 24, 2021, classroom observation report, a December 20, 2021, psychoeducational evaluation report, and a December 21, 2021, speech and language screening report (DOE-1; DOE-2; DOE-3; DOE-4).

The November 1, 2021, social history report was conducted as part of an initial evaluation requested by the mother to determine if her daughter has educational disabilities that would make her eligible for all available and appropriate special education services (DOE-1). According to the social history report, the mother was concerned with her daughter' s inadequate academic performance, namely her difficulties with reading, writing, and math (id.). The mother noted that the student is failing her classes and that she is currently in the eleventh grade and has academic skills at the fifth-grade level (id.). The student’s mother reported that the student was delayed in talking and had early intervention services from 3 to 4 years old for the student’s speech delay (id.). The mother reported that the student has never attended therapy and takes no medications (id.). In addition, the mother noted that the student had average, B-minus grades and has never repeated a grade, but that the student’s behavior declined in middle school and she came late to class and had issues with time (id.). The mother reported that the student is very bright and has potential to do well, and that she was never a child with a learning disability, but that she is now and that the school has created this (id.). The mother reported that the student is currently failing all of her classes (id.). The social history report also notes that all due process rights and procedural safeguards under the NYS Education Department were explained, reviewed, and given to the parent (id.).

The district conducted a classroom observation of the student on November 18, 2021 (DOE-2). The evaluator observed that the student arrived to class late, and appeared to be tired, distracted, and disengaged (id.). The evaluator observed that the student does not proactively take initiative and seek guidance on the assignment (id.). The evaluator noted that the student’s attention is primarily directed towards her phone and notes throughout the report that the student has a preoccupation with her phone (id.). An anecdote from a teacher contained within the report states that the student is late to class and is not completing most assignments (id.). The teacher further notes that the student is not engaged, her attention span, focus, and concentration are poor, her distractibility is high, and her engagement and motivation are clearly very low (id.). The teacher also notes that the student’s attendance is poor, she is often late to class, and when she is in class that she makes many bathroom trips (id.). The teacher states that the student “is sabotaging herself” (id.).

The December 2021 psychoeducational evaluation conducted as part of the student's initial evaluation consisted of a student interview, vocational assessment, and administration of a Behavior Assessment for Children-Third Edition (BASC-3) and Woodcock-Johnson IV Tests of Cognitive Abilities and Achievement (WJ-IV COG) tests (DOE-3). Based on the results of the WJ-IV COG test that focused on cognitive assessments, the evaluating psychologist reported that the student was advanced for her age on a number series test and concept formation test (id.). The evaluator reported the student’s fluid reasoning abilities are classified as High Average and rank at the 78th percentile in comparison to same age peers (id.). The evaluator also noted that the student was average on tests that evaluated her crystallized and fluid intelligence (id.). The student performed average on tests that assessed her language abilities, high average on tests that assessed her visuospatial abilities, average on tests that assessed her memory, and typical-to-advanced for her age on executive functions (id.).

The student’s academic assessment was determined using several tests of the Woodcock-Johnson IV Tests of Achievement (WJ-IV ACH) (id.). The student’s overall reading skills are classified as Average, her overall math skills are classified as average, and her overall writing skills are classified as Average (id.). The evaluator noted that the student demonstrated below-average skills in language-based academic areas, such as reading comprehension and written expression, and that given these issues and the student’s history of speech-language delays, a Speech-Language screening is recommended to rule out a Speech-Language Impairment (id.).

Turning to the student's social/emotional assessment results, the psychoeducational evaluation indicated that according to the BASC-3 Self Report, the student’s personal adjustment, behaviors, and social-emotional functioning are within the normal limits range for her age (id.). But according to her teachers, the student’s rule-breaking behaviors include being late to class and using her cell phone in class (id.). Her teachers provided the following comments, the student “primarily has her phone out when she arrives in class. She usually has it in her lap and rarely puts it away despite repeated requests. She doesn’t always respond to one-on-one questions or support. She has even taken FaceTime calls during class." (id.).

The evaluator concluded that overall the student’s intellectual abilities are classified as Average and she does not exhibit a pattern of cognitive fluctuations that would result in academic difficulties or that would indicate a learning disability (id.). Finally, the evaluator indicated that while the student may not qualify for special education due to absence of a disability, she should receive at-risk instructional support in language-based classes, such as ELA and Social Studies, and such support can be offered both in class and outside class (for example, during after school and Saturday recovery) (id.).

On December 21, 2021, the student was screened by a Speech-Language Pathologist, and it was determined that the student’s total score was above the criterion score for her age group, her fluency was judged to be within normal limits based on informal assessment, her speech production abilities were judged to be within normal limits based on informal assessment, and her pragmatic language, the verbal and non-verbal rules that dictate social interactions, was judged to be within normal limits (DOE-4). Therefore, a formal speech and language evaluation was not warranted based on the results (id.).

On December 22, 2021, the parent was provided a meeting notice from the Committee on Special Education to review the results of the initial evaluation and determine if the student is eligible for special education services and to develop an IEP (DOE-5). The parent participated in that meeting (DOE-6). The CSE reviewed evaluation results from multiple assessments conducted in school and in person in December 2021, as well as information form the Speech-Language Screener test of December 21, 2021, and it was determined that the student did not qualify for special education due to absence of a disability (DOE-6). It was recommended that the student receive at-risk instructional support in language-based classes, such as ELA and Social Studies, with the support offered both in class and outside class (for example, during after school and Saturday recovery) (id.). On December 22, 2021, the parent was provided with Prior Written Notice that the student is not eligible for special education services and was given information on procedural safeguards (DOE-7, P-D).

On February 17, 2022, a comprehensive speech/language evaluation report was completed for the student by the District and school-based speech and language therapy was not recommended as the student’s expressive and receptive language skills were determined to be at age-expected levels and the student’s overall oral narrative abilities were interpreted to be appropriate for her age and grade (DOE-8). As noted in the report, according to the student’s English teacher, the student “usually doesn't take part in the work of class and [her] primarily coping strategy is avoidance. In the first semester she rarely made it to first period, sometimes cut class, often arrived late and always left to use the bathroom with or without permission, being out of the room for long periods of time. Until recently, since she started to hand in her phone at the start of the day, the phone was often in her lap with her headphones in. [The student] earned a 55 for the past semester. She didn't submit a single major assignment, and at most engaged in some group discussion and did a few exit slip type assignments. We offer many scaffolds and modifications for [the student] already--preferential seating, frequent prompting, graphic organizers, vocabulary support, sentence starters, small groups, one-on-one, pairing her with another student, etc.--that she generally refuses. [The student] has so far refused to attend after school tutoring” (id.). Furthermore, as noted in the student’s March 24, 2022, IEP, according to the student’s teachers, the student “does not complete required course work. She arrives to class late and is on her phone during class instruction. [The student] also takes extended bathroom breaks and is hanging out with friends in the staircase during instruction time” (P-B).

The parent obtained an independent Neuropsychological Evaluation for the student which was conducted on February 11, 2022, and February 19, 2022 (P-E). The Neuropsychological Evaluator found that, while she exhibited some weaknesses in certain areas, the student is functioning within the Average range of intellectual functioning overall and that her abilities are generally intact (id.). At odds with the conclusion of REDACTED mentioned above and further discussed below, the Neuropsychological Evaluator specifically found the student’s math performance was largely intact and was marked by appropriately developed mathematical computation, applied math problem solving, and math skills (compare P-E with P-J-5 at p.15). The Neuropsychological Evaluator furthermore found that the student’s reading performance was characterized by appropriately developed word reading and phonological nonsense-word decoding kills (P-E). Noting some of the student’s weaknesses, the Neuropsychological Evaluator ultimately concluded that the student meets the criteria for a Language Disorder, Specific Learning Disability with Impairment in Reading and Writing, Persistent Depressive Disorder, and Anxiety Disorder (id.). Conspicuously absent was any diagnosis for a learning disability with impairment in Mathematics (id.). The Neuropsychological Evaluator recommended the student receive an IEP with a classification of Speech or Language Impairment, individualized support in the form of multiple tutoring sessions outside of regular school hours, Speech-Language Therapy, counseling services, testing accommodations, classroom accommodations, as well as other recommendations (id).

On March 24, 2022, the parent was provided another meeting notice from the Committee on Special Education to review the results of the evaluation and determine if the student is eligible for special education services and to develop an IEP (DOE-9). In developing its recommendations for the student’s IEP, the CSE reviewed the evaluation results from the independent Neuropsychological Evaluation for the student which was conducted on February 11, 2022, and February 19, 2022, the December 2021 Psychoeducational Evaluation, and the Speech Language evaluations conducted in December 2021 and February 2022 (P-B). It was then determined that the student is eligible for special education services as a student with a disability classification of Speech or Language Impairment (P-B). Based on that determination, an Individualized Education Program (IEP) was developed, recommending generally: 10 Month School Year Placement at a NYC DOE School; Special Education Services of Integrated Co-Teaching (ICT) Services in ELA, Social Studies, Sciences, and Math; Related Services of Counseling Services and Speech-Language Therapy; Testing accommodations, classroom accommodations, and Transition Activities (P-B, DOE-10). Under Individual Academic Support, the student’s IEP indicates that the school will “Offer daily after-school tutoring in all major subjects (from Special Education Teachers and General Education Teachers)” (P-B). The IEP also indicates that the Parent agrees with these recommendations (id.).

For the student’s Measurable Annual Goals related to reading and writing, the IEP indicates that “In one year, given structured integrated reading improvement instruction, [the student] will learn and utilize strategies to identify main ideas, essential details, and order of events in grade-level reading material and documents” and “In one year, given structured integrated writing improvement instruction, [the student] will utilize outlines and graphic organizers to write a well-developed three-to-five paragraph essay, demonstrating understanding of informational/literary text/material and citing specific text evidence to support her ideas/conclusions” (P-B). The student’s Annual Goals related to her Speech and Language deficits include “In one year during structured speech and language therapy, utilizing the strategies of re-reading, previewing vocabulary, paraphrasing, summarizing, and use of graphic organizers, [the student] will answer inference-based reading comprehension questions with textual evidence based on curriculum texts” (id.).

The Attendance Page of the IEP indicates that the IEP was attended by a Related Service Provider/Special Education Teacher, a General Education Teacher, a District Representative who was also the School Psychologist, a Speech-Language Therapist, and a Special Education Teacher/IEP Coordinator, in addition to the parent and student (P-B-19).

VI. Applicable Standards

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 Sch. Dist. v. T.A., 557 U.S. 230, 239 [2009]; Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 [1982]).

A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 [2d Cir. 2014]; R.E. v. New York City Dep't of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998], quoting Rowley, 458 U.S. at 206; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]). The Supreme Court has indicated that "[t]he IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement" (Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. __, 137 S. Ct. 988, 999 [2017]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]). Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245).

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). "The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created" (Endrew F., 137 S. Ct. at 1001). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and... affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Endrew F., 137 S. Ct. at 1001 [holding that the IDEA "requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances"]; Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (“LRE”) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132).

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]). The Supreme Court has stated that even if it is unreasonable to expect a student to attend a regular education setting and achieve on grade level, the educational program set forth in the student's IEP "must be appropriately ambitious in light of his [or her] circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives" (Endrew F., 137 S. Ct. at 1000).

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85).

VI. Discussion In the DPC filed by the parent, the parent alleges that the DOE failed to provide the student a free appropriate public education (“FAPE”) for the 19/20, 20/21, 21/22, and 22/23 school years for a litany of reasons, none of which are remotely persuasive or supported by the record, all of which will be dispensed with below.

For the reasons further explained below, I find that the District offered the student a FAPE as required by Federal and State law. As such, I decline to grant the Petitioner any requested relief and dismiss all allegations with prejudice.

  • • Child Find Violation The parent first alleges that the District failed to timely evaluate, classify, and provide the student an IEP and such failure denied the student a FAPE. This argument is unavailing and unsupported by the record.

The purpose of the "child find" provisions of the IDEA are to identify, locate, and evaluate students who are suspected of being a student with a disability and thereby may be in need of special education and related services, but for whom no determination of eligibility as a student with a disability has been made (see Handberry v. Thompson, 446 F.3d 335, 347-48 [2d Cir. 2006]; E.T. v. Bd. of Educ. of Pine Bush Cent. Sch. Dist., 2012 WL 5936537, at *11 [S.D.N.Y. Nov. 26, 2012]; A.P. v. Woodstock Bd. of Educ., 572 F. Supp. 2d 221, 225 [D. Conn. 2008], aff'd, 370 Fed. App'x 202 [2d Cir. Mar. 23, 2010]; see also 20 U.S.C. § 1412[a][3][A]; 34 CFR 300.111; 8 NYCRR 200.2[a][1], [7]). The IDEA places an affirmative duty on State and local educational agencies to identify, locate, and evaluate all children with disabilities residing in the State "to ensure that they receive needed special education services" (20 U.S.C. § 1412[a][3]; 34 CFR 300.111[a][1][i]; Forest Grove, 557 U.S. at 245; K.B. v. Katonah Lewisboro Union Free Sch. Dist., 2019 WL 5553292, at *7 [S.D.N.Y. Oct. 28, 2019]; E.T., 2012 WL 5936537, at *11; see 20 U.S.C. § 1412[a][10][A][ii]; see also 8 NYCRR 200.2[a][1], [7]; New Paltz Cent. Sch. Dist. v. St. Pierre, 307 F. Supp. 2d 394, 400 n.13 [N.D.N.Y. 2004]). The "child find" requirements apply to "children who are suspected of being a child with a disability... and in need of special education, even though they are advancing from grade to grade" (34 CFR 300.111[c][1]; see 8 NYCRR 200.2[a][1], [7]; D.K. v. Abington Sch. Dist., 696 F.3d 233, 249 [3d Cir. 2012]; J.S. v. Scarsdale Union Free Sch. Dist., 826 F. Supp. 2d 635, 660 [S.D.N.Y. Nov. 18, 2011]). To satisfy the requirements, a board of education must have procedures in place that will enable it to identify, locate, and evaluate such children (34 CFR 300.111[a][1]; 8 NYCRR 200.2[a][1], [7]).

Because the child find obligation is an affirmative one, the IDEA does not require parents to request that the district evaluate their child (see Reid v. Dist. of Columbia, 401 F.3d 516, 518 [D.C. Cir. 2005] [noting that "[s]chool districts may not ignore disabled students' needs, nor may they await parental demands before providing special instruction"]; see also Application of the Bd. of Educ., Appeal No. 11-153; Application of a Student Suspected of Having a Disability, Appeal Nos. 11-092 & 11-094). A district's child find duty is triggered when there is "reason to suspect a disability and reason to suspect that special education services may be needed to address that disability" (J.S., 826 F. Supp. 2d at 660; New Paltz Cent. Sch. Dist., 307 F. Supp. 2d at 400 n.13, quoting Dep't of Educ., State of Hawaii v. Cari Rae S., 158 F. Supp. 2d 1190, 1194 [D. Haw. 2001]). To support a finding that a child find violation has occurred, school officials must have "overlooked clear signs of disability" and been "negligent in failing to order testing," or have "no rational justification for deciding not to evaluate" the student (Mr. P v. W. Hartford Bd. of Educ., 885 F.3d 735, 750 [2d Cir. 2018], quoting Bd. of Educ. of Fayette County, Ky. v. L.M., 478 F.3d 307, 313 [6th Cir. 2007]; see A.P., 572 F. Supp. 2d at 225). States are encouraged to develop "effective teaching strategies and positive behavioral interventions to prevent over-identification and to assist students without an automatic default to special education" (Los Angeles Unified Sch. Dist. v. D.L., 548 F. Supp. 2d 815, 819 [C.D. Cal. 2008], citing 20 U.S.C. § 1400[c][5]). Additionally, a school district must initiate a referral and promptly request parental consent to evaluate a student to determine if the student needs special education services and programs if a student has not made adequate progress after an appropriate period of time when provided instruction in a school district's response to intervention program (8 NYCRR 200.4[a]), see also 8 NYCRR 100.2[ii]).

Here, the district complied with its child-find obligations for the 19/20, 20/21, and 21/22 school years. As explained herein, the hearing record fails to contain any evidence that the student exhibited signs of a disability that the district ignored or that gave the district reason to suspect that the student had a disability and required special education to address that disability. I also note that even if the district had reason to suspect a disability at some point prior to the student's referral, the remedy for such a child find violation would typically be an order for the student to be evaluated, which has already occurred in this matter (see Adams v. Dist. of Columbia, 285 F. Supp. 3d 381, 393, 396-97 [D.D.C. 2018] [noting with approval the hearing officer's finding "that the directives of IDEA would be best effectuated by ordering an IEP review and revision, rather than prospective placement in a private school"]).

The parent alleges that the student has a history of inadequate progress and poor grades and that the District was aware of the student’s learning issues and bears responsibility for failing to assist the student (P-A). In the parent’s direct testimony via affidavit (large portions of which include block quotations that have been cut and pasted from other evidence and which calls into substantial doubt the credibility of the parent’s overall testimony and negate the functional intent and utility behind such testimony via affidavit), the parent alleges that the student is not showing signs of meaningful progress in school and that according to her report cards she has consistently been below standards (P-M). The parent claims that the student has not received the help she needs and that the student’s learning problems had been evident as she had consistently exhibited poor academic progress (id.).

However, the hearing record does not support the parent’s contention and her attempts to shift the blame for the student’s poor academic progress onto the District. To the contrary, the record shows that the student has been making substantial academic progress and consistently passing a majority of her classes over the past several years and advancing from grade-to-grade each year (see generally IHO-2; P-F-1). The student also passed the Algebra Regents Examination with a score of 73 and is on track to graduate on time with the Regents diploma (P-B-4; DOE-3-1; DOE-3-5).

The hearing record, taken as a whole, lends to the conclusion that the responsibility for the student’s poor academic performance lies not with the student’s disability or the District’s alleged failure to properly identify and address it, but rather the fault rests entirely with the student’s general lack of effort, failure to attend class daily and on time, failure to complete assignments, failure to put away her phone to focus and participate in class, and her failure to avail herself of the tutoring services and supports offered her by the District (see generally DOE-8, P-B).

Despite overwhelming evidence to the contrary, the parent blindly rebuffs any criticism that her child is disinterested and has a lack of concern for her own academic well-being (P-M). And the parent further professes that her student “tries to do well in school” and “is floundering in spite of her best efforts” (id.). Again, the record does not support the parent’s contention. There are numerous reports from the child’s teachers that the child is constantly late or misses class, is constantly on her cell phone, refuses to attend after school tutoring, does not complete required course work, arrives to class late, is on her phone during class instruction, takes calls during class, takes extended bathroom breaks, and is hanging out with friends in the staircase during instruction time (DOE-8, P-B). Such a record does not support the parent’s disingenuous contention that the student is exerting her best effort to try to do well.

For the reasons stated above, I do not find that the District violated the "child find" provisions of the IDEA. Nor do I find that the District had any reason to suspect that this student was a student with a disability and thereby may be in need of special education and related services. As such, this baseless allegation is dismissed with prejudice.

  • • IEP Substantively Deficient The parent next alleges that the March 24, 2022, IEP is substantively deficient due to issues with the present levels of performance and goals. The record does not support this contention.

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]).

In developing its recommendations for the student’s IEP, the CSE reviewed the evaluation results from the independent Neuropsychological Evaluation for the student which was conducted on February 11, 2022, and February 19, 2022, the December 2021 Psychoeducational Evaluation, and the Speech Language evaluations conducted in December 2021 and February 2022 (P-B). The Present Levels of Performance and Individual Needs includes a detailed review of the February 2022 Neuropsychological Evaluation Data, the December 2021 Psychoeducational Evaluation Data, and the Speech-Language Evaluation Data that formed the basis for the CSE’s recommendations (id.). And based on that review, it was determined that the student is eligible for special education services as a student with a disability classification of Speech or Language Impairment (id.). Furthermore, based on that determination, an Individualized Education Program (IEP) was developed recommending generally: 10 Month School Year Placement at a NYC DOE School; Special Education Services of Integrated Co-Teaching Services in ELA, Social Studies, Sciences, and Math; Related Services of Counseling Services and Speech-Language Therapy; Testing accommodations, classroom accommodations, and Transition Activities (P-B, DOE-10). Under Individual Academic Support, the student’s IEP also indicates that the school will “Offer daily after-school tutoring in all major subjects (from Special Education Teachers and General Education Teachers)” (P-B). The IEP also indicates that the Parent agrees with these recommendations (id.).

For the student’s Measurable Annual Goals related to reading and writing, the IEP indicates that “In one year, given structured integrated reading improvement instruction, [the student] will learn and utilize strategies to identify main ideas, essential details, and order of events in grade-level reading material and documents” and “In one year, given structured integrated writing improvement instruction, [the student] will utilize outlines and graphic organizers to write a well-developed three-to-five paragraph essay, demonstrating understanding of informational/literary text/material and citing specific text evidence to support her ideas/conclusions” (P-B). The student’s Annual Goals related to her Speech and Language deficits include “In one year during structured speech and language therapy, utilizing the strategies of re-reading, previewing vocabulary, paraphrasing, summarizing, and use of graphic organizers, [the student] will answer inference-based reading comprehension questions with textual evidence based on curriculum texts” (id.).

It is worth noting, as further discussed below, that nearly all the recommendations from the February 2022 Neuropsychological evaluation were included as recommended supports and services within the March 24, 2022, IEP (compare P-B with P-E). Additionally, the Neuropsychological Evaluator himself testified that an ICT class placement with related services would be an appropriate setting to meet the student’s needs.

For the reasons stated above and contained within the record, I do not find that the March 24, 2022, IEP is substantively deficient. I do find that the IEP is reasonably calculated to enable the student to make progress appropriate with her abilities and I also find that the IEP establishes annual goals designed to meet the student's needs resulting from the student's disability and enable her to make progress in the general education curriculum.

  • • IEP Improperly Comprised The parent next alleges that the March 24, 2022, IEP is improperly comprised. The record does not support this contention.

Under the IDEA, the IEP team must include: the parents of the child; at least one regular education teacher of the child (if the child is, or may be, participating in the regular education environment); at least one special education teacher/provider of the child; a district representative qualified to supervise or provide special education who is knowledgeable about the general education curriculum and the district's available resources; and, an individual who can interpret the instructional implications of evaluation results (who may be an existing, required member of the team other than the parent). The IEP team may also include, at the discretion of the parents or LEA, other individuals who have knowledge or special expertise regarding the child, including related services personnel as appropriate. The child may also attend whenever appropriate (34 C.F.R. §§ 300.321(a) and (b)).

The Attendance Page of the IEP indicates that the IEP was attended by a Related Service Provider/Special Education Teacher, a General Education Teacher, a District Representative who was also the School Psychologist, a Speech-Language Therapist, and a Special Education Teacher/IEP Coordinator, as well as the student and the parent (P-B-19).

Based on my independent review of the record, I find that the CSE was properly comprised. Furthermore, the parent failed to offer any testimony or evidence to support its contention that the IEP was improperly comprised. Even if, assuming arguendo, the IEP was improperly comprised, considering the overall record in this case, such a minor procedural violation would not necessitate a finding that the District denied the student a FAPE.

  • • Recommendations of Independent Evaluations The parent further alleges that the DOE has failed to adopt or even seriously consider the independent Neuropsychologist’s recommendations and only provided an ICT classroom in a DOE community school (P-M-5). The record not only fails to support this contention, it clearly contradicts it.

The parent obtained an independent Neuropsychological Evaluation for the student which was conducted on February 11, 2022, and February 19, 2022 (P-E). The Neuropsychological Evaluator concluded that the student meets the criteria for a Language Disorder, Specific Learning Disability with Impairment in Reading and Writing, Persistent Depressive Disorder, and Anxiety Disorder (id.). The Neuropsychological Evaluator recommended the student receive an IEP with a classification of Speech or Language Impairment, individualized support, multiple tutoring sessions outside of regular school hours, Speech-Language Therapy, counseling services, testing accommodations, classroom accommodations, as well as other recommendations (id).

In formulating its March 24, 2022, IEP, the CSE classified the student with a Speech or Language Impairment (P-B). Based on that determination, an Individualized Education Program (IEP) was developed recommending generally: 10 Month School Year Placement at a NYC DOE School; Special Education Services of Integrated Co-Teaching Services in ELA, Social Studies, Sciences, and Math; Related Services of Counseling Services and Speech-Language Therapy; Testing accommodations, classroom accommodations, and Transition Activities (P-B, DOE-10). Under Individual Academic Support, the student’s IEP indicates that the school will “Offer daily after-school tutoring in all major subjects (from Special Education Teachers and General Education Teachers)” (P-B). The IEP also indicates that the Parent agrees with these recommendations (id.).

Even though the CSE clearly adopted most of the Neuropsychologists recommendations, had they not, such a failure would not have resulted in a violation of FAPE as the law does not obligate the CSE to adopt the recommendations of a private psychologist (J.C.S. v. Blind Brook-Rye Union Free Sch. Dist., 2013 WL 3975942, at *11 [S.D.N.Y. Aug. 5, 2013] [holding that "the law does not require an IEP to adopt the particular recommendation of an expert; it only requires that that recommendation be considered in developing the IEP"]; Watson, 325 F. Supp. 2d at 145 [holding that a CSE's recommendation is not necessarily rendered inappropriate by "[t]he mere fact that a separately hired expert has recommended different programming"]).

Furthermore, I am not inclined to afford the private evaluator’s opinions and recommendations greater weight than the judgment of district staff, which generally is afforded some amount of deference (see Lessard v. Wilton Lyndeborough Coop. Sch. Dist., 592 F.3d 267, 270 [1st Cir. 2010] [noting that "the underlying judgment" of those having primary responsibility for formulating a student's IEP "is given considerable weight"]; J.E. & C.E. v. Chappaqua Cent. Sch. Dist., 2016 WL 3636677, at *16 [S.D.N.Y. June 28, 2016], aff'd, 2017 WL 2569701 [2d Cir. June 14, 2017], citing E.S. v. KatonahLewisboro Sch. Dist., 742 F. Supp. 2d 417, 436 [S.D.N.Y. 2010] ["The mere fact that a separately hired expert has recommended different programming does nothing to change [the] deference to the district and its trained educators"], aff'd, 487 Fed. App'x 619 [2d Cir. July 6, 2012]; Z.D. v. Niskayuna Cent. Sch. Dist., 2009 WL 1748794, at *6 [N.D.N.Y. June 19, 2009] [explaining that deference is frequently given to the school district over the opinion of outside experts]).

While I have personally undertaken a thorough review of the REDACTED Academic Evaluation Results, Individualized Prescribed Hours, and Student Test Results, all conducted in October 2021, prior to the initial December 2021 ineligibility determination (see generally P-G, P-H, P-I), the hearing record is unclear on whether or not this information was ever even provided to the CSE during its December 2021 evaluation or during the March 2022 evaluation (see generally P-B; DOE-6).

Despite the voluminous proffer of evidence from REDACTED, I find REDACTED’s conclusions and recommendations unpersuasive, arbitrary, contradicted by the record, and therefore give no weight to REDACTED’s analysis and conclusions regarding the student’s skill level and operative grade level. Among numerous issues of concern I have with REDACTED’s practices, REDACTED arbitrarily creates a metric for subject matter mastery that requires a student to receive a perfect score or otherwise REDACTED labels the student deficient and in need of substantial remedial assistance (see generally P-G, P-J). For these and additional reasons discussed below, I give no weight to REDACTED’s arbitrary recommendations for prescribed hours of remedial tutoring, and I specifically disagree with the 155 hours of individualized math tutoring recommended by REDACTED in light of the fact that such recommendation contradicts with the parent’s own independent Neuropsychological Evaluation, the student’s strong academic performance in that subject area as evident in her report cards and performance on the Algebra Regents Examination, and the District’s Psychoeducational Evaluation with regards to the student’s math skills (compare P-J, P-H, P-E, P-F, DOE-3, and IHO-2).

Such a blatantly contradictory conclusion engineered by REDACTED indicates to me the existence of an inherent conflict of interest on the part of REDACTED. By all appearances, REDACTED has arbitrarily diagnosed a problem and prescribed a solution that would seem to only benefit REDACTED financially. REDACTED’s business model appears to profit from generating an alarmingly poor evaluation with low performance metrics of their own arbitrary creation, that conveniently necessitates 100s of hours of prescribed instruction at an inflated financial rate, which then substantially benefits REDACTED. This calls into doubt REDACTED’s conclusions in all subject areas and their overall recommendations for this student (see P-H). For the same reasons, I find the entire testimony of REDACTED’s Director to lack credibility and assign no weight to it. For the above reasons, I find REDACTED to be an inappropriate option for the student and decline to award any tutoring hours to be provided by REDACTED and decline to award any reimbursement to the parent for monies previously paid to REDACTED.

I also find it concerningly suspicious that the parent’s own privately obtained clinical psychologist felt it appropriate to specifically endorse the REDACTED by name as a suitable tutoring option (see P-K-3), especially when REDACTED’s recommendations and opinions are at odds with the clinical psychologist’s own conclusions (compare P-E-15 [“[Student’s] math performance was largely intact and was marked by appropriately developed mathematical computation, applied math problem solving, and math skills.”] to P-J-2 [“(“REDACTED found [Student] to be operating at least five years below her current grade level in…math skills.”]). Something is rotten in the state of Denmark (William Shakespeare, Hamlet, Act 1, Scene 4).

  • • Failure to provide supports and services The parent next alleges that the services and supports offered the student, such as ICT support, has not been effective (P-M-5). It is worth noting that the instant DPC was filed approximately one week after the March 24, 2022, IEP that recommended ICT support services, and that also recommended nearly all of the independent Neuropsychologist’s recommendations, as discussed above. The March 24, 2022, IEP also recommended daily after-school tutoring in all major subjects (from Special Education Teachers and General Education Teachers) (P-B). And, as discussed above, the Neuropsychological Evaluator himself even testified that an ICT class placement with related services would be an appropriate setting to meet the student’s needs.

As discussed above and noted in the February 17, 2022, comprehensive speech/language evaluation report, according to the student’s English teacher, “We offer many scaffolds and modifications for [the student] already--preferential seating, frequent prompting, graphic organizers, vocabulary support, sentence starters, small groups, one-on-one, pairing her with another student, etc.--that she generally refuses. [The student] has so far refused to attend after school tutoring” (DOE-8-2). It is also noted that the student doesn’t respond to one-on-one questions or support (DOE-3). Furthermore, as noted in the student’s March 24, 2022, IEP, according to the student’s teachers, the student “does not complete required course work. She arrives to class late and is on her phone during class instruction. [The student] also takes extended bathroom breaks and is hanging out with friends in the staircase during instruction time” (P-B).

For the reasons discussed above and further below, I do not find that the hearing record supports the parent’s contention that the services and supports offered the student have not been effective, as the record clearly indicates that the District is going above and beyond to assist a student who refuses to avail herself of the supports and services provided and specifically refuses to attend the after-school tutoring offered by the District.

  • • Failure to provide Prior Written Notice The parent further alleges that she was not given appropriate or adequate information by the DOE regarding the CSE process or her rights as a parent of a child with a disability, and that this failure contributed to the DOE’s long-term failure to provide the student with an appropriate education and also deprived the parent of her right to meaningfully participate in the development of her daughter’s education program and deprived the student of educational benefits (P-M-6). This argument is unavailing and contradicted by the record.

As reflected in the November 1, 2021, social history report, it is noted that all due process rights and procedural safeguards under the NYS Education Department were explained, reviewed, and given to the parent (DOE-1). On December 22, 2021, the parent was provided a meeting notice from the Committee on Special Education to review the results of the initial evaluation and determine if the student is eligible for special education services and to develop an IEP (DOE-5). On December 22, 2021, the parent was provided with Prior Written Notice that the student is not eligible for special education services and was given information on procedural safeguards (DOE-7, P-D). On March 24, 2022, the parent was provided another meeting notice from the Committee on Special Education to review the results of the evaluation and determine if the student is eligible for special education services and to develop an IEP (DOE-9).

For these reasons, the record does not support the parent’s contention that they were not provided appropriate prior written notice. That the Petitioner felt compelled to throw as many potential allegations at the wall to see which sticks shows an unfortunate desperation to validate and bolster a weak complaint.

  • • Tutoring As the crux of the parent’s requested relief is an attempt to receive an order for approximately $70,000 worth of private tutoring services for the student, a discussion on the student’s willingness to even engage in tutoring assistance is relevant. The Neuropsychological Evaluator recommended the student receive multiple tutoring sessions outside of regular school hours (P-E). The student’s IEP indicates that the school will “offer daily after-school tutoring in all major subjects (from Special Education Teachers and General Education Teachers)” (P-B). On cross-examination, the parent testified that she was aware the school was offering the student daily tutoring after school. The parent further testified, without much confidence or assuredness, that the parent thought “maybe” the student “might have attended” the tutoring “on occasion” or “once or twice.” The parent then attempted to justify this by alleging that the student had trouble locating the teachers and had trouble getting in touch with them. The parent’s live testimony regarding the student’s reason for failing to fully avail herself of the tutoring services offered by the District was vague, uncertain, hesitant, disingenuous, and lacked credibility. I find that the more persuasive evidence in the record comes from the student’s teachers, which supports the conclusion that the student herself has unequivocally refused to attend after school tutoring, just as she has plainly refused to submit assignments, attends class late, takes extended breaks, is on her phone constantly, and has generally refused to avail herself of the many other scaffolds and modifications that the District has exhaustively put forth to assist this student (DOE-8-2).

Despite ample evidence in the hearing record that the student has been offered after school tutoring services by the District, which she has refused to attend, the parent would still like to see me issue an order for private tutoring at the tune of $70,000.00 (P-M). Even if I were to find that the District failed to offer the student a FAPE, I would not hold that the hearing record supports the parent’s request for compensatory services to include private tutoring at REDACTED or to be reimbursed for any costs associated with the privatively obtained tutoring based solely on the student’s exhibited behavior. While any parent would surely love to have their student receive specialized private tutoring gratis, the IDEA statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379). And as the old adage goes, while you can lead a horse to water, you cannot make her drink.

VI. Conclusion

Based on the totality of the record before me, I find the District has complied with all the procedural requirements set forth in the IDEA and has developed an IEP that is reasonably calculated to enable the student to receive educational benefits, if only the student were to put her phone away, attend class daily and on time, and avail herself of the services, supports, and tutoring offered by the District, instead of sabotaging herself.

While I do not doubt that this student is bright and has the potential to do well, I am not swayed by any of Petitioner’s arguments that the District bears responsibility for the student’s sudden decline. The record supports the conclusion that the student’s own behavior is solely to blame. The parent even acknowledges as much by stating that things go well for the student when the student has her phone taken away from her during class time (see P-M-3 at p. 14).

For the reasons discussed above, I find that the District offered the student a FAPE as required by Federal and State law. As such, I decline to grant the Petitioner any requested relief. I have reviewed all of the Petitioner’s allegations contained within the DPC (including the allegations related to COVID-19 which were merely pled but not substantiated and which I am summarily dismissing) and find them to be either without merit, beyond my jurisdiction, or without sufficient basis in the record for a finding and award of relief. Accordingly, all the Parent’s claims (with the exception of any claims related to the 2022/2023 school year as discussed in the motion to dismiss above) are hereby dismissed with prejudice.

DATED: SO ORDERED

7/12/2022 /s/ Dustin Johnson

Dustin Johnson, Esq., IHO

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 proceedings 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.

IMPARTIAL HEARING OFFICER'S CERTIFICATION OF THE RECORD

I, Dustin Johnson, Impartial Hearing Officer in this matter, do hereby certify that the below Index of Exhibits included within this Findings of Fact and Decision itemizes the entire record before me. I further certify that the materials included in the record are either the original or a true copy of the original materials that were provided to me in this matter.

DATED: CERTIFIED BY

7/12/2022 /s/ Dustin Johnson

Dustin Johnson, Esq., IHO

CASE # 225620 EXHIBITS redacted