New York City Department of Education, Impartial Hearing Decision

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date

[REDACTED] Attorney PARENT 07/25/23 (V)

[REDACTED] Attorney PARENT 08/18/23 (V)

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

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

[REDACTED] Attorney PARENT 11/15/22 (V)

[REDACTED] Grandparent PARENT 11/15/22 (V)

[REDACTED] DOE Representative DOE 11/15/22(V)

[REDACTED] Attorney PARENT 01/09/23 (V)

[REDACTED] DOE Representative DOE 01/09/23 (V)

[REDACTED] Attorney PARENT 03/02/22 (V)

[REDACTED] Grandparent PARENT 03/02/22 (V)

[REDACTED] Witness PARENT 03/02/22 (V)

[REDACTED] Witness PARENT 03/02/22 (V)

[REDACTED] DOE Representative DOE 03/02/22 (V)

DOCUMENTATION ENTERED INTO RECORD

A. Number/Letter Title Dated For # of Pages Hearing Request 04/05/22 PARENT B Acknowledgment of 04/11/22 PARENT 02 Receipt of Hearing Request 10 pages

G. Individualized 04/06.20 PARENT 19 Education Program

H. Individualized Education 04/12/21 PARENT Program 27 pages

I. Individualized Education 03/10/22 PARENT Program 38 pages

J. Developmental Evaluation 10/13/17 PARENT 08 pages

K. Family Assessment 10/13/17 PARENT 02 L Occupational Therapy 10/20/17 PARENT 04 Evaluation

M. Speech-Language 10/29/17 PARENT Evaluation 06 pages

N. Psychological Evaluation 10/29/17 PARENT 10 pages

O. Early Intervention Program 11/0317 PARENT Summary of Multidisciplinary Evaluation P Social History 01/07/18 PARENT 02 Q Functional Behavior 10/26/20 PARENT 10 Assessment, Behavior Intervention Plan R Functional Behavioral 03/07/22 PARENT 08 Assessment, Behavior Intervention Plan S Neuropsychological 11/17/22 PARENT 29 Evaluation T Functional Behavioral 11/22/22 PARENT 13 Assessment, Behavior Intervention Plan U Annual Review 02/05/21 PARENT 03 Occupational Therapy V Annual Review 03/01/21 PARENT 03 Speech-Language Therapy 14 pages

Y. W Annual Review 03/22/21 PARENT 04 Academic X Annual Review 03/28/21 PARENT 04 Physical Therapy Progress Report Annual N/A PARENT Goals, June 2021 07 pages

Z. Progress Report Annual 02/01/22 PARENT Goals AA Annual Review 02/26/22 PARENT 04 Occupational Therapy BB Annual Review 03/01/22 PARENT 04 Speech-Language Therapy CC Annual Review Academic 03/02/22 PARENT 04 09 pages

FF. DD Annual Review 03/07/22 PARENT 05 Physical Therapy EE Annual Review 03/07/22 PARENT 02 Social-Emotional Progress Report Annual N/A PARENT Goals, June 2022 08 pages

HH. Meeting Notice 03/25/20 PARENT 01 pages

II. Prior Written Notice 04/08/20 PARENT 04 pages

JJ [REDACTED] N/A PARENT 03

Learning Plan, April 2020

KK Ten-Day Notice of 08/18/20 PARENT 04

Unilateral Placement for 2020-2021

LL Class Schedule for 09/05/20 PARENT 01

2020/2021

MM Parental Guarantee of 09/01/20 PARENT 02

Tuition for 2020/2021

NN Determination Letter 09/09/20 PARENT 01

OO Annual Review Meeting 04/14/21 PARENT 04

Worksheet and Notes

PP School Location Letter 04/15/21 PARENT 02

QQ Letter to [REDACTED] 04/30/21 PARENT 04

Principal

RR Ten-Day Notice of 06/21/21 PARENT 02

Unilateral Placement for 2021/2022

SS Attendance Record for 06/25/21 PARENT 01

2020/2021

TT Parental Guarantee of 06/25/21 PARENT 02

Tuition for 2021/2022

UU Class Schedule for N/A PARENT 01

Summer 2021, July 2021

VV Determination Letter 07/14/21 PARENT 01

XX Class Schedule for 09/2021 PARENT 01

2021/2022

YY Student Attendance 06/24/22 PARENT 01

Record

ZZ Tuition Affidavit for 10/14/21 PARENT 01

2021/2022

AAA Annual Review Meeting 03/10/21 PARENT 04

Worksheet and Notes

BBB Request for Evaluation 04/05/22 PARENT 08

With Resumes of Proposed

Evaluators

CCC Prior Written Notice 04/11/22 PARENT 05

Regarding Evaluation

DDD Prior Written Notice 04/11/22 PARENT 04

Regarding Independent Evaluation

EEE Letter to CSE [REDACTED] 04/11/22 PARENT 02

Psychologist

FFF Tuition Affidavit for 06/21/22 PARENT 01

2020/2021 School Year

HHH [REDACTED] N/A PARENT 02

Description

On June 13, 2022, I was appointed as the Impartial Hearing Officer ("IHO") to conduct a hearing pursuant to the Individual with Disabilities in Education Act ("IDEA"), 20 United States Code, Section 1415(f)(1), concerning a dispute involving the special education program of a [REDACTED] year old student attending a private school and the New York City Department of Education ("DOE") District [REDACTED]. The Parent (grandmother and legal guardian) allege a denial of FAPE for the 2020-2021, 2021-2022 school years The Parent filed a Due Process Complaint ("DPC") on or about April 6, 2022. The case was then waitlisted due to the unavailability of Hearing Officers until June 13, 2022. Impartial hearings were held on July 25, 2022, August 18, 2022, October 7, 2022, November 15, 2022, January 9, 2023 & March 2, 2023.

The Parent requested an interim order of relief on or about August 18, 2022, seeking and independent neuropsychological exam. The Parents relief was granted on October 18, 2022, and an order was issued to commence the exam.

The student is a [REDACTED]-year-old boy with Autism Spectrum Disorder with intellectual impairment. (Tr. 74-75). In the development of his educational programs for the 2020-2021 and 2021-2022 school years, the Committee on Special Education determined, with the agreement of the Parent, that his disability classification was Autism and that determination remains unchanged. (G)

A written closing statement was submitted by the Parent and the undersigned did not receive a written closing statement from the DOE. At the impartial hearing, the Parent seeks the following relief:

• A finding that the student was denied a FAPE for the 2020-2021 and 2021-2022 school years.

• A finding that the private school was an appropriate placement for the student for the 2020-2021 and 2021-2022 school years.

• Tuition funding/direct payment of the student's tuition at the private school for the 2020-2021 and 2021-2022 school years; and

DOES' DEFAULT

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

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

The DOE has conceded liability by failing to present a case and meet its burden under the law. New York State law has placed the burden of production and persuasion at an impartial hearing on the school district, unlike states which align the burden of production and persuasion consistent with Schaffer v. Weast, 546 U.S. 49, 58-62 [2005} The undersigned finds that the DOE failed to adhere to the requirements of the law, has denied the student in this case a FAPE for the 2020-2021 and 2021-2022 school years and that the Parent may be entitled to the proven relief she has requested.

THE PARENT'S CASE

The Parent had (3) witnesses testify on their behalf, who testified on direct and some were also cross examined by the District. The Parent also submitted (60) documents in evidence. In sum, substance and relevant part, the testamentary and documentary evidence for and against the Parent's case is incorporated in the decision below.

DOE DEFAULT

Whereas under the IDEA, the burden of persuasion in an administrative hearing is placed upon the party seeking relief. (See Schaffer v. Weast, 546 U.S. at 59-62) On August 15, 2007, the New York State Legislature amended the Education Law to place the burden of proof upon the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement would continue to have the burden of proof regarding the appropriateness of such placement. (See Educ. Law § 4404[1][c], as amended by Ch. 583 of the Laws of 2007) The amended statute took effect for impartial hearings commenced on or after October 14, 2007. (SRO No. 08-016); and As noted above, the DOE's failure to present a case at the hearing is a concession that it denied the student a FAPE for the 2020-2021 and 2021-2022 school years and that if the Parent meets her burden under Schaffer v. Weast, the Parent is entitled to the proven relief she seeks. This leaves, as the primary issue to be resolved through impartial hearing, what relief and/or compensatory education remedy, if any, is available and appropriate to remediate the denial of a FAPE. (SRO No. 17-033)

It is noted that the DOE was required under the due process procedures set forth in New York State law, to address its burdens in the due process hearing context by describing its views, based on a fact-specific inquiry set forth in an evidentiary record, regarding an appropriate relief and/or compensatory education remedy that most reasonably and efficiently could place the student in the position that he would have been but for the denial of a FAPE. (See Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 457 [2d Cir. 2015], cert. denied, 136 S. Ct. 2022 [2016], quoting Reid v. Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005] [noting that the "'ultimate award [of compensatory education] must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place'"]) When, as here, the DOE does not present any case at the hearing, the hearing, the hearing process essentially becomes an "inquest" as to the appropriate relief.

The DOE has conceded liability by failing to present a case and meet its burden under the law. New York State law has placed the burden of production and persuasion at an impartial hearing on the school district, unlike states which align the burden of production and persuasion consistent with Schaffer v. Weast, 546 U.S. 49, 58-62 [2005]. It is not an IHO's responsibility to craft the DOE's position regarding the primary issue in the case, for the denial of FAPE. The undersigned finds that the DOE failed to adhere to the requirements of the law, has denied the student in this case a FAPE for the 2020-2021 and 2021-2022 school years and that the Parent may be entitled to the relief she has requested.

FINDINGS OF FACTS & DECISION

Two purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected. (See 20 U.S.C. § 1400[d][1][A]-[B] and Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982])

A FAPE is offered to a student when (a) the DOE 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. (See Rowley, 458 U.S. at 206-07 and Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]) While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA. (See A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003] and Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007])

Under the IDEA, if a procedural violation is 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. (See 20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008] and Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007] aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008])

An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs (34 C.F.R. § 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals related to those needs (34 C.F.R. § 300.320[a][2]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services. (See 34 C.F.R. § 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; SRO No. 07-018; 06-059; 06-029; 04-046; 02-014; 01-095 and 93-09) Subsequent to its development, an IEP must be properly implemented. (See 8 NYCRR 200.4[e][7] and SRO No. 08-087)

The DOE may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim. (See Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993] and Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]) In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA. (See Burlington, 471 U.S. at 370-71; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007] and Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]) "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE. (See Burlington, 471 U.S. at 370-71; 20 U.S.C. § 1412[a][10][C][ii] and 34 C.F.R. § 300.148)

The New York State Legislature amended the Education Law to place the burden of production and persuasion upon the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of production and persuasion regarding the appropriateness of such placement. (See Educ. Law § 4404[1][c], as amended by Ch. 583 of the Laws of 2007) The amended law took effect for impartial hearings commenced on or after October 14, 2007; therefore, it applies to the instant case. (See SRO No. 08-016)

A private school placement must be "proper under the Act." (See Carter, 510 U.S. at 12, 15 and Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs. (See Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129 and Matrejek, 471 F. Supp. 2d at 419) A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement. (See Carter, 510 U.S. at 14) The private school need not employ certified special education teachers or have its own IEP for the student. (See Carter, 510 U.S. 7; SRO No. 08-085; 08-025; 08-016; 07-097; 07-038; 02-014 and 01-105) Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate." (See Gagliardo, 489 F.3d at 112 and 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 [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement….'" (See Gagliardo, 489 F.3d at 112; Frank G. v. Bd. of Educ., 459 F.3d at 364 [2d Cir. 2006] [quoting Rowley, 458 U.S. at 207 and identifying exceptions]) Parents need not show that the placement provides every special service necessary to maximize the student's potential. (See Frank G., 459 F.3d at 364-65) When determining whether the parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits." (See Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]]) A "private placement is only appropriate if it provides 'education instruction specifically designed to meet the unique needs of a handicapped child.'" (See Gagliardo, 489 F.3d at 115 [emphasis in original], citing Frank G., 459 F.3d at 365 quoting Rowley, 458 U.S. at 188-89)

The IDEA allows that tuition reimbursement may be reduced or denied if parents do not provide "notice" of the unilateral placement either at the most recent CSE meeting prior to removing the child from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense." (See 20 U.S.C. § 1412[a][10][C][iii][I] and 34 C.F.R. § 300.148[d][1]) This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools." (See Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]) Although a reduction in reimbursement is discretionary, courts have upheld the denial of tuition reimbursement in cases where it was shown that parents failed to comply with this statutory provision. (See Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); SRO No. 07-133; 07-120; 07-115; 07-098; 07-079; 07-075; 07-038; 07-032; 06-122; 06-069; 06-057; 06-042; 06-041; 06-035; 05-092 and 04-022)

The final criterion for a reimbursement award is that the parent's claim be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA. (See Burlington, 471 U.S. at 374; M.C. v. Voluntown, 226 F.3d 60, 68 [2d Cir. 2000] and Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required"]) Such considerations "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters." (See Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff'd, 471 U.S. 359 [1985]) With respect to equitable considerations, the IDEA provides that tuition reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, fail to engage with potential placements offered by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. (See 20 U.S.C. § 1412[a][10][C][iii]; Thies v. New York City Bd. of Educ., 2008 WL 344728 [S.D.N.Y. Feb. 4, 2008]; M.V. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181 at *5 [N.D.N.Y. Jan. 2, 2008]; Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 [S.D.N.Y. Nov. 20, 2007]; Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 [S.D.N.Y. 2005], aff'd, 2006 WL 2335140 [2d Cir. Aug. 9, 2006] and Voluntown, 226 F.3d at n.9)

In the absence of evidence demonstrating that petitioners failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, or failed to give proper notice, equitable considerations generally support a claim of tuition reimbursement. (SRO No. 04-049) In sum, substance and relevant part, the testamentary and documentary evidence in this case is as follows:

The Parents witness, [REDACTED] conducted the students neuropsychological and testified on direct to the following: "[REDACTED] was a little bit more than [REDACTED] when I tested him, and he meets full clinical criteria for autism spectrum disorder, ASD, and he -- and -- there are different levels that are assigned by the DSM-5. His level is a level 3, which means that that's the most intense level of symptomatology. And yes, there --is some degree of intellectual impairment involved, which I am reluctant to categorize at this age because he's [REDACTED] still young enough and intervention can still be so effective that I don't want to characterize him as having an intellectual delay. He is verbal. He could be tested, and there is potential. (Tr 74-75) "The report of the November 2022 neuropsychological evaluation states, "he requires an ABA program," "He requires an intensive, integrated program of ABA for both academics and behavior management." (S-26). The student requires a program of behavior management services trained and supervised by a board-certified behavioral analyst "to ensure that the program is specific to the target behaviors based on empirical data." (S-28). The student needs "direct and individualized instruction for academics, friendships and social skills" and a twelve-month program of services to prevent regression in skills. (S-28) Dr. Dietrich recommended that an assistive technology evaluation be undertaken, advising that "failure to evaluate precludes recommendations for an appropriate educational program." (Tr 87-88). [REDACTED] concluded that the student "has benefitted significantly from his program at [REDACTED]."(S-26) She testified– with "no reservations" – that the [REDACTED] program was appropriate for him for the 2020-2021 and 2021-2022 school years, adding, "There's too much data to have reservations about it in terms of very thorough progress notes done on a very regular basis and with a high degree of specificity." (Tr 88-89). The Principal at the private school, [REDACTED], testified as follows on direct examination: "[REDACTED] is a non-public school specializing in the education of students with Autism Spectrum Disorder and testified as to the student's meaningful progress in that program." (Tr-96)

The witness testified to the Student's educational progress at the private school during the 2020-2021 and 2021-2022 school years. "He has made a tremendous amount of progress since he started, not only academically… He's connected to the peers in his classroom, he has friends. He's connected to the staff. He can have reciprocal conversations. And behavior. Behavior's a huge one. When he started, was extremely self-directed. He would have tantrums, self-aggressiveness, aggressive toward others. That has decreased a lot. He has learned how to self-regulate. The other day, I heard him ask for a break. He needed a break and he actually asked for it, which is huge. So, he's advocating for himself. He's regulating himself. He's speaking more, longer sentences, reciprocal conversations, appropriate conversations. (Tr- 120).

The Parents evidence shows that the student has made academic progress while enrolled in the private school for the 2020-2021 and 2021-2022 school years. The students educational records, progress reports and behavioral records are submitted into evidence. (Q,R,T,U,V,W,Y,Z,FF)

The annual review reports issued during the 2020-2021 and 2021-2022 school years attest to the Student's meaningful progress in the ABA program at the private school, "increased engagement in task and improved task completion" (U,1); "greets others with minimal to no verbal prompting" (V, 2); "has been progressing with his reading goals," "has been learning the sound of letters and has been matching letters to pictures" (W, 2); "is able to count objects and match the number counted to a visual of that number" (W, 3); "steady progress toward his [occupational therapy] goals" (AA, 2); "progressed gradually toward his current [speech] goals" (BB,2); "progress in mathematics… successful with understanding the concept matching a certain number to the same number of objects" (CC, 3); "progress with transitioning in and out of the classroom" and "improvement with demonstrating impulse control when upset" (EE,2).

GROSS VIOLATION

A gross violation of the IDEA may result from the denial of, or exclusion from, educational services for a substantial period of time. (See SRO No. 04-074, citing Mrs. C. v. Wheaton, 916 F.2d 69 (2d Cir. 1990), Burr v. Ambach, 863 F.2d 1071 (2d Cir. 1988) and SRO No. 02-047. In Burr, exclusion from educational services for a substantial period of time was defined as "almost two years." (See SRO No. 02-033 citing Burr "…after a severely disabled student's school was closed, prolonged delays in the administrative proceedings in obtaining a new placement resulted in a complete exclusion from any educational placement for the student for almost two years."

Here, the DOE's failed to provide the student a FAPE for the 2020-2021 and 2021-2022 school years. As such, I find that the DOE's failure to afford the student a FAPE constitutes a gross violation of IDEA.

APPROPRIATENESS OF THE RELIEF SOUGHT

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

The Parents evidence shows that the student has made academic progress while enrolled in the private school for the 2020-2021 and 2021-2022 school years. The students educational records, progress reports and behavioral records are submitted into evidence. (Q,R,T,U,V,W,Y,Z,FF)

When determining whether the parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits." (See Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003]) (emphasis added) This standard is well below those other standards of review in the law such as "beyond a reasonable doubt", "clear and convincing evidence", "preponderance of the evidence", "substantial evidence" or even perhaps "rational basis." The record, as accurately summarized by the parties above and adopted in this decision and order, supports a finding that the decision to place the student at the private school was" reasonable" as an appropriate placement for the student's 2020-2021 and 2021-2022 school years.

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

NOW therefore, it is hereby

ORDERED that the DOE denied the student a FAPE for the student's 2020-2021 and 2021-2022 school years and that upon its receipt of reasonably satisfactory proof of services having been rendered, the DOE shall reimburse the Parent or pay directly for the cost of the student's tuition and related services at the private school for the time the student attended the private school during the 2020-2021 and 2021-2022 school year; and it is further

ORDERED that within 30 days the CSE shall forthwith reconvene to produce a new IEP for the student that considers all of the student's available evaluations and any related information and produce a new IEP for the student's 2022-2023 and or 2023-2024 school year; and it is further

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

Sharifa Milena Nasser

DATED: May 15, 2023

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

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public-School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education L[2nd PRIVATE SCHOOL INITIALS] and the Individuals with Disabilities Education Act.

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

An appealing party's request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov. (Rev. 07/09/20)