New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 572367 - NYC: 226007

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 # 226007 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 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 who resides in New York is eligible for special education services and attends a nonpublic school, Article 73 of the New York State Education Law allows for the creation of an individualized education services program (IESP) under the State's so-called "dual enrollment" statute (see Educ. Law § 3602-c). The task of creating an IESP is assigned to the same committee that designs educational programing for students with disabilities under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482), namely 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 related to IESPs, State law provides that "[r]eview of the recommendation of the committee on special education may be obtained by the parent or person in parental relation of the pupil pursuant to the provisions of [Education Law § 4404]," which effectuates the due process provisions called for by the IDEA (Educ. Law § 3602-c[2][b][1]). Incorporated among the procedural protections of the IDEA and the analogous State law provisions 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 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” or “Child”). On April 25, 2022, Petitioner filed a Due Process Compliant (“Complaint” or “DPC”) against Respondent, the New York City Department of Education (“NYC DOE” or “DOE” or “District”) pursuant to the Individuals with Disabilities Education Act (“IDEA”) with allegations regarding the 2021-2022 school year. This first DPC was assigned . The undersigned Hearing Officer was appointed to preside over on June 22, 2022.

On July 1, 2022, Petitioner filed a second DPC against the DOE for the 2022-2023 school year, with nearly identical allegations to (see Exhibit P-C). The second DPC was assigned case number 227332. The undersigned Hearing Officer was appointed to preside over case number 227332 on July 5, 2022.

On July 19, 2022, a prehearing conference was held for DPC (See Exhibit IHO-I). At the July 19, 2022, prehearing conference, there was a discussion regarding consolidating case number 227332 into . The Petitioner objected to consolidating the matters. A decision on consolidation was held in abeyance by the IHO to give the DOE time to investigate both matters and determine whether a resolution can be had. It was agreed that the next hearing date will be a status conference for both and case number 227332.

On August 2, 2022, a status conference was held. At the status conference on August 2, 2022, two separate attorneys appeared representing the DOE, one for each of the different DPCs. Over the objection of the Petitioner, the IHO utilized his discretion to consolidate the matters and for the consolidated matters to proceed pursuant to the timeline under DPC 226007 (See Exhibit IHO-II).

On September 14, 2022, a combined pendency hearing and hearing on the merits of the consolidated DPC was held and completed the same day.

At the September 14, 2022, hearing, Petitioner indicated that the pendency dispute for the 2021-2022 school year as encompassed in the April 25, 2022, DPC has been resolved (see DOE Exhibit 12). As such, the Petitioner withdrew the pendency dispute for the 2021-2022 school year. Additionally, the Petitioner then withdrew the entire DPC dated April 25, 2022, encompassing the 2021-2022 school year.

It was further clarified on the record that there still remained a ripe dispute regarding pendency for the 2022-2023 school year, as encompassed in the July 1, 2022, DPC, as well as a substantive dispute regarding the District’s provision of a Free Appropriate Public Education (“FAPE”) for the student for the 2022-2023 school year, also as alleged within the July 1, 2022, DPC.

By DPC notice dated July 1, 2022, the parent alleged, generally, that the DOE failed to provide the student a free appropriate public education (“FAPE”) for the 2022-2023 school year (see generally P-C).

For relief, the parent sought a pendency order ordering the DOE to pay for the child’s program as set forth in the November 9, 2019 CPSE IEP (id.). Although not expressly indicated on the face of the July 1, 2022, DPC, it can be inferred from the totality of the July 1, 2022, DPC and the Petitioner’s arguments at the September 14, 2022, hearing that the Petitioner was also seeking a finding that the District denied the student a FAPE for the 2022-2023 school year, and a finding that the student requires more hours of individualized support than offered in the disputed May 2021 IESP (id.).

IV. PENDENCY DISPUTE

The crux of the pendency dispute for the 2022-2023 school year boils down to the number of months (10 vs 12) that the student is entitled to receives services. There is no dispute between the parties that the student is entitled, for the purposes of pendency, to Special Education Itinerant Teacher Services (“SEIT”) for 13 hours a week, Speech and Language Therapy 3x30 per week, or Occupational Therapy 2x30 per week.

It is the Petitioner’s position that, based on the 2019 CPSE IEP, the student is entitled to 12 months of services, as the 2019 CPSE IEP was the last agreed upon IEP (see P-B). Alternatively, the District argues that the student is only entitled to 10 months of services based on three separate pendency agreements from the previous three years that the Petitioner has executed after the 2019 CPSE IEP and which have now become the student’s placement for purposes of pendency (see DOE-3; DOE-5; DOE-12).

• • APPLICABLE LEGAL STANDARDS FOR PENDENCY

The IDEA and the New York State Education Law require that a student remain in his or her then current educational placement, unless the student's parents and the board of education otherwise agree, during the pendency of any proceedings relating to the identification, evaluation or placement of the student (20 U.S.C. § 1415[j]; Educ. Law §§ 4404[4]; 34 CFR 300.518[a]; 8 NYCRR 200.5[m]; see Ventura de Paulino, 959 F.3d at 531 [2d Cir. 2020] cert. denied sub nom. Paulino v. NYC Dep't of Educ., 2021 WL 78218 (U.S. Jan. 11, 2021); T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 170-71; Mackey v. Bd. of Educ. for Arlington Cent. Sch. Dist., 386 F.3d 158, 163 [2d Cir. 2004], citing Zvi D. v. Ambach, 694 F.2d 904, 906 [2d Cir. 1982]); M.G. v. New York City Dep't of Educ., 982 F. Supp. 2d 240, 246-47 [S.D.N.Y. 2013]; Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *20 [E.D.N.Y. Oct. 30, 2008]; Bd. of Educ. of Poughkeepsie City Sch. Dist. v. O'Shea, 353 F. Supp. 2d 449, 455-56 [S.D.N.Y. 2005]).

Pendency has the effect of an automatic injunction, and the party requesting it need not meet the requirements for injunctive relief such as irreparable harm, likelihood of success on the merits, and a balancing of the hardships (Zvi D., 694 F.2d at 906; see Wagner v. Bd. of Educ. of Montgomery County, 335 F.3d 297, 301 [4th Cir. 2003]; Drinker v. Colonial Sch. Dist., 78 F.3d 859, 864 [3d Cir. 1996]). The purpose of the pendency provision is to provide stability and consistency in the education of a student with a disability and "strip schools of the unilateral authority they had traditionally employed to exclude disabled students... from school" (Honig v. Doe, 484 U.S. 305, 323 [1987] [emphasis in original]; Evans v. Bd. of Educ. of Rhinebeck Cent. Sch. Dist., 921 F. Supp. 1184, 1187 [S.D.N.Y. 1996], citing Bd. of Educ. of City of New York v. Ambach, 612 F. Supp. 230, 233 [E.D.N.Y. 1985]).

A student's placement pursuant to the pendency provision of the IDEA is evaluated independently from the appropriateness of the program offered the student by the CSE (Mackey, 386 F.3d at 160-61; Zvi D., 694 F.2d at 906; O'Shea, 353 F. Supp. 2d at 459 [noting that "pendency placement and appropriate placement are separate and distinct concepts"]). The pendency provision does not require that a student remain in a particular site or location (Ventura de Paulino, 959 F.3d at 532; T.M., 752 F.3d at 170-71; Concerned Parents & Citizens for the Continuing Educ. at Malcolm X Pub. Sch. 79 v. New York City Bd. of Educ., 629 F.2d 751, 753, 756 [2d Cir. 1980]; see Child's Status During Proceedings, 71 Fed. Reg. 46709 [Aug. 14, 2006] [noting that the "current placement is generally not considered to be location-specific"]), or at a particular grade level (Application of a Child with a Disability, Appeal No. 03-032; Application of a Child with a Disability, Appeal No. 95-16).

Under the IDEA, the pendency inquiry focuses on identifying the student's then current educational placement (Ventura de Paulino, 959 F.3d at 532; Mackey, 386 F.3d at 163, citing Zvi D., 694 F.2d at 906). Although not defined by statute, the phrase "then current placement" has been found to mean either: (1) the placement described in the student's most recently implemented IEP; (2) the operative placement actually functioning at the time when the due process proceeding was commenced; or (3) the placement at the time of the previously implemented IEP (Dervishi v. Stamford Bd. of Educ., 653 Fed. App'x 55, 57-58 [2d Cir. June 27, 2016], quoting Mackey, 386 F.3d at 163; T.M., 752 F.3d at 170-71 [holding that the pendency provision "requires a school district to continue funding whatever educational placement was last agreed upon for the child"]; see Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 452 [2d Cir. 2015] [holding that a student's entitlement to stay-put arises when a due process complaint notice is filed]; Susquenita Sch. Dist. v. Raelee, 96 F.3d 78, 83 [3d Cir. 1996]; Letter to Baugh, 211 IDELR 481 [OSEP 1987]). Furthermore, the Second Circuit has stated that educational placement means "the general type of educational program in which the child is placed" (Concerned Parents, 629 F.2d at 753, 756), and that "the pendency provision does not guarantee a disabled child the right to remain in the exact same school with the exact same service providers" (T.M., 752 F.3d at 171). However, if there is an agreement between the parties on the student's educational placement during the due process proceedings, it need not be reduced to a new IEP, and the agreement can supersede the prior unchallenged IEP as the student's then-current educational placement (see Bd. of Educ. of Pawling Cent. Sch. Dist. v. Schutz, 290 F.3d 476, 483-84 [2d Cir. 2002]; Evans, 921 F. Supp. at 1189 n.3; Murphy, 86 F. Supp. 2d at 366; see also Letter to Hampden, 49 IDELR 197 [OSEP 2007]). Moreover, a prior unappealed IHO decision may establish a student's current educational placement for purposes of pendency (Student X, 2008 WL 4890440, at *23; Letter to Hampden, 49 IDELR 197).

Once a student's "then-current educational" placement or pendency placement has been established, it can be changed: (1) by agreement between the parties; (2) by an unappealed IHO or court decision in favor of the parents; or (3) by an SRO decision that a unilateral parental placement is appropriate (34 CFR 300.518[a], [d]; 8 NYCRR 200.5[m][1], [2]; see Ventura de Paulino, 959 F.3d at 532; Schutz, 290 F.3d at 483-84; New York City Dep't of Educ. v. S.S., 2010 WL 983719, at *1 [S.D.N.Y. Mar. 17, 2010]; Student X, 2008 WL 4890440, at *23; Arlington, 421 F. Supp. 2d at 697; Murphy, 86 F. Supp. 2d at 366; Letter to Hampden, 49 IDELR 197). Accordingly, implicit in the concept of “educational placement” in the stay-put provision (i.e., a pendency placement) is the idea that the parents and the school district must agree either expressly or as impliedly by law to a child’s educational program.” (Ventura de Paulino, 959 F.3d at 532). However, for the pendency provisions of the IDEA to apply, a due process proceeding must be currently pending. 20 U.S.C. § 1415(j); Education Law § 4404(4); 34 CFR 300.518(a); 8 NYCRR § 200.5(m); Honig, 484 U.S. at 323; Mackey, 386 F.3d at 160; Doe v. East Lyme Bd. of Educ., 962 F.3d 649, 659 [2d Cir. 2020]; Letter to Winston, 213 IDELR 102 (OSEP 1987); Weaver v. Millbrook Cent. Sch. Dist., 812 F. Supp. 2d 514, 526 (S.D.N.Y. 2011).

Absent one of the foregoing events, once a pendency placement has been established, it "shall not change during those due process proceedings," S.S., 2010 WL 983719, at *1 [emphasis in the original]). And upon a pendency changing event, such changes apply "only on a going-forward basis" (id.). With that said, it has been held that in certain circumstances a court may, on equitable grounds, retroactively adjust a student's pendency placement if a state-level administrative decision in a parent's favor was not issued in a timely manner (see Mackey, 386 F.3d at 164-66; Arlington, 421 F. Supp. 2d at 701; O'Shea, 353 F. Supp. 2d at 457-58; Murphy, 86 F. Supp. 2d at 366-67).

• • PENDENCY DISCUSSION

In most cases, the then-current placement will be the last unchallenged IEP. However, any pendency so created will be superseded if there is an agreement between the parties on placement, whether or not it is reduced to a new IEP. Therefore, a settlement agreement between the parties may be sufficient to establish a student's pendency placement depending on various factors (see L.L. v. New York City Dep't of Educ., 2016 WL 4535037, at *7-*8 [S.D.N.Y. Aug. 30, 2016] [discussing factors relevant to a determination whether a settlement agreement establishes a pendency placement]). And upon a pendency changing event, such changes apply on a going-forward basis (S.S., 2010 WL 983719).

Here, the November 19, 2019, CPSE IEP indicates that the student was entitled to 12-Month Services for July/August 2019 Only (see P-B-1). While Petitioner is correct that the November 19, 2019, CPSE IEP, was the last agreed upon IEP, subsequent to that, the Petitioner executed three separate pendency agreements which have superseded the November 19, 2019, CPSE IEP and have become the last agreed upon educational placement for the child (see DOE-3; DOE-5; DOE-12).

On September 8, 2020, Parent Attorney signed a Pendency Agreement agreeing to 10 months of services with an indication on the agreement that the student’s pendency was uncontested and arises from an IEP dated 11/19/2019 (see DOE-5). On July 1, 2021, Parent Attorney signed another Pendency Agreement again agreeing to 10 months of services with an indication on the agreement that the student’s pendency was uncontested and arises from an IEP dated 11/19/2019 (see DOE-3). Most recently, on July 1, 2022, Parent Attorney signed yet another Pendency Agreement again agreeing to 10 months of services with an indication on the agreement that the student’s pendency was uncontested and arises from a previous Pendency Agreement (see DOE-12).

At the September 14, 2022, disputed pendency hearing, the same Petitioner’s counsel, ATTORNEY, reversed her own established precedence and initially stated that the executed Pendency Agreement had an error, and then curiously attempted to disavow that she even signed the July 1, 2022, pendency agreement (mere moments after having withdrawn the pendency dispute for the 2021-2022 school year because it was resolved), before ultimately agreeing to the admissibility of the July 1, 2022, pendency agreement as DOE Exhibit 12 (see Tr. at pgs. 26-27).

Notwithstanding the actions of Petitioner’s counsel at the disputed pendency hearing, based on the evidence in the record, I find that the three Pendency Agreements executed by Petitioner’s counsel, which all agree that the student’s pendency is uncontested and is for 10-months of services, have superseded the November 19, 2019, IEP, and are now the student's last agreed upon educational placement going-forward, as well as the student’s operative placement. I also find Petitioner’s arguments to the contrary to be disingenuous, not supported by the evidence in the record, and not in conformity with controlling case law as cited above.

Therefore, the student is entitled, for the purposes of pendency only, to SEIT services for 13 hours a week, Speech and Language Therapy 3x30 per week, and Occupational Therapy 2x30 per week, on a 10-month basis only. I take Judicial Notice that the first day of school for a 10-month student for the 2022-2023 school year was September 8, 2022. Therefore, pendency for the 2022-2023 school year begins from September 8, 2022, through the date of the below decision on the merits, which finds that the student’s May 4, 2021, IESP offered the student a FAPE, and which now becomes the student’s new educational placement going forward.

• • PENDENCY ORDER

IT IS HEREBY ORDERED, that the DOE shall immediately provide the Student with the mandated SEIT services for 13 hours a week, Speech and Language Therapy 3x30 per week, and Occupational Therapy 2x30 per week, through an independent service provider selected by the Parents, calculated on an hour-by-hour basis, with the computation of services to start as of September 8, 2022, and to continue to the conclusion of these proceedings, payment to made in the form of reimbursement. The provider shall be paid at reasonable market rates consistent with rates that have been paid by the Implementation Unit of the DOE’s impartial hearing office for comparable services within the six (6) month period prior to the date of this Order, and who shall be paid within thirty (30) days of the DOE’s receipt of the provider’s certified invoice for such services.

DATED: SO ORDERED

10/5/2022 /s/ Dustin Johnson

Dustin Johnson, Esq., IHO

V. 2022-2023 FAPE HEARING ON THE MERITS

• • Findings of Fact

In a February 4, 2021, progress report from a therapist at the student’s service provider, SCHOOL (“SCHOOL”), it was indicated that the student presents with weaknesses in various areas of learning which impact his ability to make progress both academically and socially (DOE-10). The student has demonstrated cognitive and receptive language deficits, in addition, the student also presents with social/emotional/behavioral delays and transition delays (id.). Additional areas of weakness(es) include math readiness (id.). Concerns were mentioned by the parent regarding the student’s cognitive, receptive language, social/emotional/behavioral, transition, attention span, and expressive language areas (id.). The report also indicated that the student’s teacher has also expressed concerns in areas of cognitive, receptive language, social/emotional/behavioral, transition, attention span and expressive language areas (id.). The report recommended that the student continue to receive special education so that the student is able to function properly in a classroom environment and continued 1:1 intensive special education services were also recommended for the student (id.).

On May 4, 2021, the CSE convened to develop the student’s Individualized Education Services Program (IESP) and classified the student as a student with a Speech or Language Impairment (DOE-6-1). The May 2021 IESP indicated that the student was parentally placed in a nonpublic school (DOE-6-12). The May 2021 IESP utilized various assessments to develop the IESP, including the Wechsler Preschool and Primary Scale of Intelligence, 4th Edition, as well as the progress report mentioned above (DOE-6-1). According to the May 2021 IESP, the student had a Full-Scale IQ score of 68, at the top of the Extremely Low range (DOE-6-1). The May 2021 IESP contained numerous annual goals for the student (see generally DOE-6). Among them were targeted goals to improve the student’s receptive language skills, math readiness skills, attention span, cognitive prerequisite skills, expressive language skills, fine motor coordination and manipulation, visual-motor coordination, writing tasks, communication skills, and speech intelligibility (id.). Finding the student eligible for special education and related services, the May 2021 IESP recommended five periods per week of special education teacher support services (SETSS) in English, three 30-minute sessions per week of individual speech-language therapy in English, and two 30-minute sessions per week of individual occupational therapy (OT) in English (DOE-6-10). On July 5, 2021, the DOE provided the parent with Prior Written Notice of this action (DOE-9).

On June 17, 2022, the parent sent the DOE an email indicating that the parent disagreed with the May 2021 recommendation and that the parent would seek reimbursement of unilaterally obtained services (P-F-2). On August 22, 2022, the parent sent another email to the DOE with the same information as the June 17, 2022, email (P-G-1).

At the impartial hearing on the merits, the DOE offered the testimony via affidavit of a School Psychologist who participated in the student’s May 2021 IESP (DOE-11). In preparation for the IEP meeting, the School Psychologist reviewed and discussed the progress reports submitted by the special education teacher, speech and language therapy provider and occupational therapy provider along with the psychological evaluation and the student’s medical forms and condition (id.). The School Psychologist further testified that based upon the evaluative material, the IESP team recommended special education teacher support services as well as speech and language therapy and occupational therapy (id). Additionally, the School Psychologist testified that, in her professional opinion, these recommendations were appropriate because the student needs special education teacher support services to assist him with his academic development in a general education setting, speech and language therapy to improve the student’s receptive and expressive language skills, and occupational therapy to improve the student’s fine motor skills (id.). Furthermore, the School Psychologist testified that there are academic goals in the student’s IESP to address his reading, math and writing deficiencies, there are speech and language therapy goals to improve the student’s receptive and expressive language skills, and occupational therapy goals to improve the student’s fine motor, visual motor and sensory processing skills (id). The School Psychologist also testified that at the conclusion of the IESP meeting the Parent was in agreement with the program recommendation and that it was explained to the parent that the special education itinerant teachers is a service for pre-school students, and once a child enters kindergarten and is school aged, they are recommended for special education teacher support services for the child to work with a special education teacher that will provide them with academic support (id.). Finally, the School Psychologist testified that in her clinical opinion, the student will progress in the general education curriculum with special education teacher support services to assist him with his academic development, speech and language therapy to improve his receptive and expressive language skills, and occupational therapy to improve his fine motor skills, and that these services will allow him to improve his decoding, reading comprehension, writing and math calculation skills as well as his language skills (id.).

The Parent testified via affidavit that the parent participated in the May 2021 IESP meeting and found the CSE’s recommendations inappropriate (P-P-2). The parent further testified that the student required the continuation of 13 hours a week of 1:1 special education services that the student had previously been receiving (id).

The Program Supervisor for SCHOOL also testified via affidavit that she participated in the students May 2021 CSE meeting and expressed concerns with the CSE’s proposed recommendations (P-Q-2).

VI. Discussion In the DPC filed by the parent, the parent alleges that the DOE denied the student a free appropriate public education (“FAPE”) for the 2022-2023 school year because the CSE was invalidly composed, the goals and objectives do not appropriately address the student’s special education needs, the CSE did not follow proper procedures in convening the meeting, and the CSE did not review the appropriate documentation prior to making its recommendations (P-C).

Based on a thorough and independent review of all the documentary evidence and testimony, as further discussed below, I find that the Parent did not make a timely written request for §3602-c services, which absolves the District of legal responsibility to provide services for the 2022-2023 school year. Notwithstanding the parent’s failure to make a timely request, I separately find that the District offered the student a FAPE for the 2022-2023 school year as required by Federal and State law. As such, for these two separate and independent reasons, I decline to grant the Petitioner any requested relief.

• • Education Law § 3602-c Initially, because the Parent failed to make a timely written request for services in compliance with Education Law §3602-c for the 2022-2023 school year, I do not find that the District violated Federal or State law (see Application of a Student with a Disability, Appeal No. 18-028) (see also, V.D. v. New York, 403 F. Supp. 3d 76, 84, 2019 U.S. Dist. LEXIS 139815, *14, 2019 WL 3886622, “In order to receive these services, a parent must first…make a written request for services to the local school district's board of education.”).

A board of education must offer a FAPE to each student with a disability residing in the school district who requires special education services or programs (20 U.S.C. § 1412[a][1][A]; Educ. Law § 4402[2][a], [b][2]). However, the IDEA confers no individual entitlement to special education or related services upon students who are enrolled by their parents in nonpublic schools (see 34 CFR 300.137[a]). Although districts are required by the IDEA to participate in a consultation process for making special education services available to students who are enrolled privately by their parents in nonpublic schools, such students are not individually entitled under the IDEA to receive some or all of the special education and related services they would receive if enrolled in a public school (see 34 CFR 300.134, 300.137[a], [c], 300.138[b]).

However, under New York State law, parents of a student with a disability who have privately enrolled their child in a nonpublic school may seek to obtain educational "services" for their child by filing a request for such services in the district of location where the nonpublic school is located on or before the first day of June preceding the school year for which the request for services is made (Educ. Law § 3602-c[2]). This is commonly known in New York as the "dual enrollment" statute. "Boards of education of all school districts of the state shall furnish services to students who are residents of this state and who attend nonpublic schools located in such school districts, upon the written request of the parent" (Educ. Law § 3602-c[2][a]). In such circumstances, the district of location's CSE must review the request for services and "develop an [IESP] for the student based on the student's individual needs in the same manner and with the same contents as an [IEP]" (Educ. Law § 3602c[2][b][1]). The CSE must "assure that special education programs and services are made available to students with disabilities attending nonpublic schools located within the school district on an equitable basis, as compared to special education programs and services provided to other students with disabilities attending public or nonpublic schools located within the school district (id.). Thus, under State law, an eligible New York State resident student may be voluntarily enrolled by a parent in a nonpublic school, but at the same time the student is also enrolled in the public school district for the purpose of receiving special education programming under Education Law § 3602-c, services for which a public school district may be held accountable through an impartial hearing.

A board of education 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 (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369- 70 [1985]; R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 [2d Cir. 2012]; T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 252 [2d Cir. 2009]). 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 (471 U.S. at 370-71; see Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). Generally, a remedy for a deficiency in equitable services under State law should be similar to a remedy for deficient services under the IDEA.

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 [2d Cir. 2012]).

Here, while the Parent claims in the Due Process Complaint that the District denied the student a FAPE for the 2022-2023 school year, the hearing record supports the conclusion that the parent did not make a timely written request for services by June 1, 2022, in accordance with Education Law § 3602-c. Education Law § 3602-c requires that parents who privately enroll their children in nonpublic schools and who seek to obtain educational services for students with disabilities are to file a written request for such services in the district in which the home school is located on or before the first day of June preceding the school year for which the request for services is made (Educ. Law § 3602-c[2][a], [2-c]). Such a request from a parent then triggers the obligation a CSE has to review the request for services, develop an IESP for the student based on the student's individual needs, and then to assure that special education programs and services are made available to the student (Educ. Law § 3602c[2][b][1]).

The Parent failed to provide any testimony or evidence that the Parent timely requested an IESP or timely requested that the District provide services for the 2022-2023 school year as required under Education Law § 3602-c. The record supports the conclusion that the only notice provided to the District of the Parent’s disagreement with the DOE’s recommendations was provided on June 17, 2022, and August 22, 2022 (P-F; P-G), after the June 1, 2022, deadline, and which relate to recommendations for the 2021-2022 school year. Because the parent did not make a timely written request for an IESP for the 2022-2023 school year, the parent cannot claim any disagreement with services for the 2022-2023 school year, as the parent was not entitled to receive any services for the 2022-2023 school year due to the parent’s failure to make a timely written request for such services.

If the parent intends to continue to enroll the student in a nonpublic school and desires the District to provide services for the student, the Parent must comply with Education Law §3602-c by, among other things, submitting a timely written request for special education services (see Application of a Student with a Disability, Appeal No. 18-028) (see also, V.D. v. New York, 403 F. Supp. 3d 76, 84, 2019 U.S. Dist. LEXIS 139815, *14, 2019 WL 3886622, “In order to receive these services, a parent must…make a written request for services to the local school district's board of education.”).

Based on the Parent’s failure to comply with Education Law § 3602-c by failing to provide the District with the requisite timely notice and request for services, I find that the District is relieved of its obligation to provide any §3602-c services in this matter for the 2022-2023 school year. As such, I decline to grant the Parent any requested relief and I am dismissing the due process complaint in its entirety.

• • FAPE

Notwithstanding the parent’s failure to make a timely request for services as discussed above, I separately find that the District’s May 2021 IESP offered the student a FAPE as required by Federal and State law and is now the student’s educational placement going forward.

• • Applicable Legal Standard Prior to reaching the substance of the parents’ arguments regarding any deficits to the May 2021 IESP, some consideration must be given to the appropriate legal standard to be applied. In this matter, the student has been parentally placed in a non-public school and the parent does not seek tuition reimbursement for the cost of the student's attendance therein.

The parent alleged that the DOE did not develop an appropriate IESP for the student for the 2022-23 school year (despite the fact that the parent did not request an IESP for the 2022-2023 school year as discussed above) and that she unilaterally obtained private services for the student and then commenced due process to obtain remuneration for the services provided. Accordingly, assuming arguendo that the parent was even entitled to services for the 2022-2023 school year, a threshold issue is whether the services offered by the DOE were adequate or appropriate. If they are found to be inadequate or inappropriate, the next issue is whether the services obtained by the parent constituted appropriate unilaterally obtained services for the student such that the cost is reimbursable to the parent or, alternatively, should be directly paid by the district to the service provider upon proof that the parent has paid for the services or is legally obligated to pay but does not have adequate funds to do so. "Parents who are dissatisfied with their child's education can unilaterally change their child's placement during the pendency of review proceedings and can, for example, pay for private services, including private schooling. They do so, however, at their own financial risk. They can obtain retroactive reimbursement from the school district after the [IESP] dispute is resolved, if they satisfy a three-part test that has come to be known as the Burlington-Carter test" (Ventura de Paulino v. New York City Dep't of Educ., 959 F.3d 519, 526 [2d Cir. 2020] [internal quotations and citations omitted], cert. denied sub nom., Paulino v. NYC Dep't of Educ., 2021 WL 78218 [U.S. Jan. 11, 2021], reh'g denied sub nom., De Paulino v. NYC Dep't of Educ., 2021 WL 850719 [U.S. Mar. 8, 2021]; see Florence Cty. Sch. Dist. Four v. Carter, 510 U.S. 7, 14 [1993] [finding that the "Parents' failure to select a program known to be approved by the State in favor of an unapproved option is not itself a bar to reimbursement."]).

As for the substantive standard for assessing the services that are unilaterally obtained by a parent, a board of education 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 (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369- 70 [1985]; R.E., 694 F.3d at 184-85; T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 252 [2d Cir. 2009]). 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 (471 U.S. at 370-71; see Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007]; Cerra, 427 F.3d at 192). "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 (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).

A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998]). A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (id. at 13-14). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ. of the City Sch. Dist. of Yonkers, 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'" (Gagliardo, 489 F.3d at 112, quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 [2d Cir. 2006]; see Rowley, 458 U.S. at 207). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). When determining whether a unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether the placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115; Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] ["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 appropriate if it provides instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; Educ. Law § 4401[1]; 34 CFR 300.39[a][1]; 8 NYCRR 200.1[ww]; Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836 [2d Cir. 2014]; Gagliardo, 489 F.3d at 114-15; Frank G., 459 F.3d at 365).

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.

No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.

(Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).

• • Substantive Flaws The parent alleges that the May 4, 2021, IESP contains multiple substantive errors thereby denying the student a FAPE (P-C). The record does not support this contention.

An appropriate educational program begins with an IESP 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]).

At the impartial hearing on the merits, the DOE offered the credible testimony of a School Psychologist who participated in the student’s May 2021 IESP (DOE-11). In preparation for the IEP meeting, the School Psychologist reviewed and discussed the progress reports submitted by the special education teacher, speech and language therapy provider and occupational therapy provider along with the psychological evaluation and the student’s medical forms and condition (id.). The School Psychologist further testified that based upon the evaluative material, the IESP team recommended special education teacher support services as well as speech and language therapy and occupational therapy (id). Additionally, in the School Psychologists professional opinion, these recommendations were appropriate because the student needs special education teacher support services to assist him with his academic development in a general education setting, speech and language therapy to improve the student’s receptive and expressive language skills, and occupational therapy to improve the student’s fine motor skills (id.). Furthermore, the School Psychologist testified that there are academic goals in the student’s IESP to address his reading, math and writing deficiencies, there are speech and language therapy goals to improve the student’s receptive and expressive language skills, and occupational therapy goals to improve the student’s fine motor, visual motor and sensory processing skills (id). The School Psychologist also testified that at the conclusion of the IEP meeting the Parent was in agreement with the program recommendation and that it was explained to the parent that the special education itinerant teachers is a service for pre-school students, and once a child enters kindergarten and is school aged, they are recommended for special education teacher support services for the child to work with a special education teacher that will provide them with academic support (id.). Finally, the School Psychologist testified that in her clinical opinion, the student will progress in the general education curriculum with special education teacher support services to assist him with his academic development, speech and language therapy to improve his receptive and expressive language skills, and occupational therapy to improve his fine motor skills, and that these services will allow him to improve his decoding, reading comprehension, writing and math calculation skills as well as his language skills (id.).

The School Psychologist’s credible testimony is further corroborated by the IESP generated by the CSE (see generally DOE-6). On May 4, 2021, the CSE convened to develop the student’s Individualized Education Services Program (IESP) and classified the student as a student with a Speech or Language Impairment (DOE-6-1). The May 2021 IESP indicated that the student was parentally placed in a nonpublic school (DOE-6-12). The May 2021 IESP utilized various assessments to develop the IESP, including the Wechsler Preschool and Primary Scale of Intelligence, 4th Edition, as well as the progress report mentioned above (DOE-6-1). According to the May 2021 IESP, the student had a Full-Scale IQ score of 68, at the top of the Extremely Low range (DOE-6-1). The May 2021 IESP contained numerous annual goals for the student (see generally DOE-6). Among them were targeted goals to improve the student’s receptive language skills, math readiness skills, attention span, cognitive prerequisite skills, expressive language skills, fine motor coordination and manipulation, visual-motor coordination, writing tasks, communication skills, and speech intelligibility (id.). Finding the student eligible for special education and related services, the May 2021 IESP recommended five periods per week of special education teacher support services (SETSS) in English, three 30-minute sessions per week of individual speech-language therapy in English, and two 30-minute sessions per week of individual occupational therapy (OT) in English (DOE-6-10).

Having conducted a thorough independent review of the May 2021 IESP and the testimony at the hearing, I find that the goals of the May 2021 IESP provide the supports necessary to address the student's unique challenges and the proposed service recommendations would provide the necessary support services to address the student's deficits.

In sum, the record reflects that the CSE developed a thorough and exhaustive IESP that included a statement of the student’s present levels of academic achievement and functional performance, reviewed various assessments, established measurable annual goals designed to meet the student's needs resulting from the student's disability and to enable the student to make progress, and provided the use of appropriate special education services, all in compliance with Federal and State law.

For the reasons stated above and contained within the record, I do not find that the May 4, 2021, IESP is substantively deficient in any way. I find that the IESP is reasonably calculated to enable the student to make progress appropriate with his abilities and I also find that the IESP establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him to make progress. Therefore, I find that the May 2021 IESP developed for the student provided the student with a Free Appropriate Public Education in compliance with Federal and State law.

• • Procedural Flaws The parent next alleges that the May 4, 2021, IESP contains multiple procedural errors thereby denying the student a FAPE (P-C). The record does not support this contention.
• • CSE Was Validly Comprised Under the IDEA, the IESP 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 [IESP] indicates that the IESP was attended by a Related Service Provider/Special Education Teacher, a General Education Teacher, a District Representative who was also the School Psychologist, a Parent Member, the student’s Mother, as well as other individuals supporting the parent’s case (DOE-7).

Based on my independent review of the record, I find that the CSE was properly comprised.

• • Alleged Failure to Review Appropriate Documentation In developing the recommendations for a student's IEP (or IESP), the CSE must consider: the results of the most recent evaluation of the student; the student's strengths; the concerns of the parent for enhancing the education of their child; the academic, developmental and functional needs of the student, including, as appropriate, the student's performance on any general State or district-wide assessments as well as any special factors as set forth in federal and State regulations (34 CFR 300.324[a]; 8 NYCRR 200.4[d][2]). However, neither the IDEA nor State law requires a CSE to "'consider all potentially relevant evaluations'" of a student in the development of an IEP or to consider "'every single item of data available'" about the student in the development of an IEP (T.G. v. New York City Dep't of Educ., 973 F. Supp. 2d 320, 340 [S.D.N.Y. 2013], quoting F.B. v. New York City Dep't of Educ., 923 F. Supp. 2d 570, 581-82 [S.D.N.Y. 2013]; see L.O. v. New York City Dep't of Educ., 822 F.3d 95, 110-11 [2d Cir. 2016]; M.Z., 2013 WL 1314992, at *8). In addition, while the CSE is required to consider recent evaluative data in developing an IEP, so long as the IEP accurately reflects the student's needs, the IDEA does not require the CSE to exhaustively describe the student's needs by incorporating into the IEP every detail of the evaluative information available to it (20 U.S.C. § 1414[d][3][A]; see M.Z., 2013 WL 1314992, at *9; D.B. v. New York City Dep't of Educ., 2011 WL 4916435, at *7-*9 [S.D.N.Y. Oct. 12, 2011]).

Here, the IESP as well as the School Psychologist’s testimony indicates that in developing its recommendations for the student’s IESP, the district reviewed and discussed the progress reports submitted by the special education teacher, speech and language therapy provider and occupational therapy provider along with the psychological evaluation (August 2018) and the student’s medical forms and condition (DOE-6; DOE-11).

Even though the CSE clearly reviewed and considered multiple sources, 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 outside recommendations (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 opinions and recommendations of the therapist who drafted the progress report or the Program Supervisor from the student’s service provider any 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. Katonah-Lewisboro 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]).

In addition, I am not inclined to afford much weight to the opinions of the therapist and Program Supervisor from SCHOOL who are both employed by the very service provider that would benefit financially from an increase in hours being offered to the student. Decisions of the New York Court of Appeals have recognized that a witness’s partiality for or against a party in the proceeding may be shown to impeach the witness’s credibility. (See e.g. Coleman v New York City Tr. Auth., 37 NY2d 137, 142 [1975] [noting “the relevancy of all facts which bear on the probable partiality” of a witness for impeachment purposes]; Schultz v Third Ave. R.R. Co., 89 NY 242, 248-249 [1882] [“It is always competent to show that a witness produced upon the trial of an action is hostile in his feelings toward the party against whom he is called to testify or that he entertains malice toward that party, and so it has been held in many cases”].) Illustrative examples of partiality recognized by the Court include a witness’s bias in favor of the party calling the witness (see People v Webster, 139 NY 73, 85 [1893] [“bias is always of importance in determining credibility” and noting that bias may arise from family, business or close social relationships]; People v Brown, 26 NY2d 88, 94-95 [1970]); hostility to the party against whom the witness testifies (see Brink v Stratton, 176 NY 150, 152 [1903] [“it was competent to prove the hostility of any or all of these witnesses towards the defendants”]; People v Brooks, 131 NY 321, 325-326 [1892]); or the witness’s interest in the case, personal, financial or other (see People v Jackson, 74 NY2d 787, 790 [1989] [witness who cooperated with prosecutor only after receiving a reduced sentence on a pending charge had an “obvious interest”]; Coleman, 37 NY2d at 142 [“an interest in a cause being a circumstance available for impeachment”]).

For the reasons stated above, I give considerable weight to the CSE’s recommendations, and I find that the IESP developed by the CSE was specifically individualized for this student, was adequate and appropriate for this student, and was reasonably calculated to enable this student to make progress appropriate with his unique abilities.

Having found that the services offered by the DOE were adequate and appropriate, and that the DOE did not deny this student a FAPE, I need not address whether the services obtained by the parent constituted appropriate unilaterally obtained services for the student or delve into a discussion regarding the equities of this matter.

VI. Conclusion In reaching my conclusions above, I have considered all of the testimonial and documentary evidence presented by both parties, and carefully marshaled and weighed all of the evidence in the hearing record before me.

Based independently on the Parent’s failure to comply with Education Law § 3602-c by failing to provide the District with the requisite timely notice and request for services, I find that the District is relieved of its obligation to provide any 3602-c services in this matter for the 2022-2023 school year. As such, I decline to grant the Parent any requested relief (apart from the relief discussed within the above Pendency Order) and I am dismissing the July 1, 2022, due process complaint in its entirety with prejudice.

Notwithstanding the parent’s failure to make a timely request for services, I separately and independently find that the District’s May 2021 IESP offered the student a FAPE as required by Federal and State law and is now the student’s educational placement going forward.

FOR THE REASONS SET FORTH ABOVE, THE JULY 1, 2022, DUE PROCESS COMPLAINT IS DISMISSED WITH PREJUDICE.

DATED: SO ORDERED

10/5/2022 /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

10/5/2022 /s/ Dustin Johnson

Dustin Johnson, Esq., IHO

EXHIBITS

Parent Exhibit

Date

Title

Number of Pages

P - B

11/19/19

CPSE IEP

13

P - C

7/1/22

DPC 22-23 (227332)

2

P - F

6/17/22

Notice to CSE

2

P - G

8/22/22

Notice to CSE

2

P - H

8/30/22

Affidavit

1

P - I

22-23 SY

SEIT Teacher Certification

3

P - J

8/29/22

Affidavit

1

P - L

8/29/22

Invoice 21-22

8

P - M

8/30/22

Invoice 22-23

2

P - N

6/9/22

22-23 Agreement of Services

1

P-O

6/6/21

21-22 Agreement of Services

1

P-P

8/31/22

Affidavit – Parent

5

P-Q

9/6/22

Affidavit

6

P-R

4/20/21

2020 Tax Return

3

P-T

8/16/22

2021 Tax Returns

3

DOE Exhibit

Date

Title

Number of Pages

DOE-3

9/9/21

209480 Pendency Agreement

2

DOE-5

11/4/21

198688 Pendency Agreement

2

DOE-6

5/4/21

IESP

13

DOE-7

5/4/21

Attendance Form

1

DOE-8

5/4/21

Conference Minutes

3

DOE-9

7/5/21

PWN

5

DOE-10

2/4/21

Progress Report

27

DOE-11

9/9/22

Affidavit

3

DOE-12

8/2/22

226007 Pendency Agreement

2

IHO Exhibit

Date

Title

Number of Pages

IHO-I

7/19/2022

Prehearing Conference Summary and Order

9

IHO-II

8/2/2022

Consolidation Order

3