New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 573736 - NYC: 226838

INTRODUCTION

The Parents filed a Due Process Complaint (DPC) (Ex. A) on or about June 9, 2022. In the DPC, the Parent alleged that the Department of Education (DOE) failed to offer the student a free appropriate public education (FAPE) for the 2019-2020, 2020-2021 and 2021-2022 school years. 1 (Ex. A).

In the DPC, the Parents alleged as follows: The Student is a REDACTED year old non-verbal, low functioning student who requires a very high level of support and management. The Student regressed significantly during the approximate two-year period that the Student received remote instruction due to COVID school closures. During the Individualized Education Program (IEP) meeting held in March 2022, the Parents first learned that the Student would "age-out" of his District 75 self-contained program in June 2022. Because the Student had always received a 12- month program and services, they believed that he would remain in the public school system until August 2022. This erroneous belief was reinforced by the fact that the school had never had any discussion with the Parents regarding transition. The Student never received a transition plan or transition services. At the March 2022 IEP meeting, the Parents discussed with the Committee on Special Education (CSE) team the lack of benefit and severe regression that the Student had experienced from receiving COVID related remote instruction. The Parents assert that the CSE team members agreed that the Student did not receive benefit from the two years of remote instruction and that he regressed as a result. However, the CSE team members told the Parents that they did not have the authority to grant the Parents' request for a two-year extension of the Student's public-school program and advised them to contact various DOE administrators. The Parents did so but were unable to obtain any resolution.

By way of relief, the Parent sought a two-year extension of the Student's eligibility for a public-school education. The Parents also sought a pendency order so that the Student could remain in his current placement pending a determination of the DPC.

PROCEDURAL HISTORY

I was appointed on June 10, 2022. On June 23, 2022, the parties entered into an Interim Pendency Agreement providing that the Student would remain in their District 75 specialized high school self-contained 6:1+1 placement pending a determination of the Parents' DPC. (IHO Ex. I)

1 The Parents filed the DPC pro se, but later obtained a non-attorney advocate to represent them at the hearing. In the DPC the Parents asserted that the Student experienced a lack of educational benefit and severe regression as a result of receiving remote instruction during COVID related school closures. Such remote instruction commenced in March, 2020 during the 2019-2020 school year, and continued through the 2020-2021 school year and into the 2021-2022 school year.

The hearing in this matter was scheduled for September 6, 2022. The DOE Representative failed to appear for the hearing. The Parents appeared with their Parent Representative. The Parent Representative submitted 13 exhibits that were entered into evidence. Both Parents testified at the hearing. The Parent Representative made an oral closing (See September 6, 2022 Transcript).

FINDINGS OF FACT

After a full review of the record generated at hearing, I make the following findings of fact and determinations.

The Student is REDACTED years old with an educational classification of Autism. The Student is currently in a District 75 Specialized High School in self-contained 6:1+1 class.2 The Student's IEPs in effect since prior to the COVID pandemic have provided that the Student receive speech and language therapy (S/L) and occupational therapy (OT). (Exs. H-8, 1-12, J-11). The Student's academic functioning is at a pre-kindergarten level. (Ex. M-3) The Student's IEP exempts him from all state and local standardized exams due to significant delays in reading, math, writing, communication, social functioning, and delays in adaptive behavior. (Ex. H-1).

The Student is non-verbal, and communicates via a static display speech generating device, gestures, and facial expressions. The Student is ambulatory but needs total support in the community as he is not travel trained and does not follow community safety rules independently. (Ex. M-1). At the time of his last psychological evaluation on February 11, 2021, it was noted that the Student had a history of self-injurious behavior when frustrated and/or upset, but that these instances had greatly decreased over the years. The Student previously had a behavior support paraprofessional throughout the school day due to his behaviors, however this service was terminated in the 2017-2018 school year due to the Student's then-substantial progress in controlling his self-injurious behaviors. (Ex. M-1)

Parent 1 credibly testified as follows. Before March 15, 2020, when the COVID pandemic resulted in the shutdown of in-person learning, the Student had been making substantial progress in school. While the Student had previously engaged in self-injurious behavior such as hitting and kicking himself, he had overcome that by the 2017-2018 school year, and no longer needed a crisis paraprofessional. (T. p. 11, L 16-2, p. 13, L 4-12). For the first time in many years, the Student had become more involved for planning for school. Sunday night his backpack would come out, signaling that the next day was a school day. The Student would be given a choice of two outfits to wear and would choose one, laying everything out the night before. The Student would get his shaving equipment and mirror and shave himself on Sunday night. On school mornings he would prepare his own breakfast and assist with getting dressed. The Student was very involved and comfortable in getting ready for and going to school. (T. p. 11, L 21-25, p. 12, L 1-8). When the Student came home from school, he would put away his backpack, immediately put on his pajamas, wash his hands, and get a snack. The

Student would only use his iPad for pleasure, and it was the Student's way of signaling to the Parents that he was now home from school and could relax. (T. p. 12, L 8-13).

After March 15, 2020 when school closed, and during the periods of remote and hybrid learning, all that changed. From March 15 to March 20, 2020 there was no school. (T. p. 20, L 3-6). The Student didn’t' t understand what was going on. The Student kept going into his room to check if his backpack was there. When Parent 1 went into his room, the Student would run after them to see if they were getting the backpack. In the mornings the Student was looking out the window for the bus. That first week it became more and more difficult for the Student to understand that he was not going to school. (T. p. 20, L 15-23). The more the Student stayed home the more confused he became. (T. p. 21, L 1). From March to June 2020, school was strictly remote learning. No S/L or OT related services were provided. (T. p. 22, L 12-17).

School consisted solely of watching videos online with no interaction, which the Student was only capable of doing for very short periods of time, never longer than 15 minutes. (T. p. 17, L 19-24, p. 21, L 16-17). The iPad, which had previously been used only for pleasure at home, was now being used for school. Parent 1 could not get the Student to engage with learning on the computer at all. The more the Student was forced to engage in online learning, the more upset he got. (T. p. 16, L 22-25, p. 17. L 1-3). The Student gained no understanding from the videos and wasn’t even paying attention most of the time. The Student would become agitated and try to get away. The more Parent 1 would force the Student to sit there, the angrier he got. The Student didn’t ' t understand that using the iPad equated to being in school. The Student just thought he was being forced to do something he didn’t want to do on a device that had previously been used solely for leisure and fun. (T. p. 18, L 21-25). There would be work assigned afterwards to answer questions about the video, but the Student was incapable of doing it. Parent 1 would read the questions, but the Student wouldn’t even pay attention. The Student received no educational benefit during this time. (T. p. 17, L 24-25, p. 18, L 1-6). As remote learning continued, all the self-injurious behaviors that the Student had previously improved with, including hitting himself in the head, kicking his own legs, screaming, and crying, became progressively worse. (T. p. 17, L 3- 6).

During July and August 2020 remote learning did not change. The Student was not offered any in-person programs and did not receive his 12-month related services. The Student was just home with his Parents. (T. p. 22, L 23-25, p. 23 1-3). Starting in September 2020 until November 2020, remote learning continued, but the format was changed where school personnel could see the Student live during the course of the day, and a teacher would be on live for each period. (T. p. 23, L 9-13). Occasionally the Student ' s speech therapist would come on. But the Student still didn’t want any part of remote learning. The Student would be looking everywhere else but the screen most of the time and would not sit for more than 15 minutes. (T. p. 23, L 16- 25). When the Student did sit, he wasn’t paying attention. All the answers the Student gave to teachers in response was strictly "hand over hand" with the Parent's assistance. In the middle of some sessions the Student would start having behavior issues and start hitting himself, requiring Parent 1 to log off to avoid disrupting the session for another student. (T. p. 24, Ll -8).

From mid-November 2020 until June 2021, the school adopted an "every other week" model of one week of remote learning followed by one week of in-person learning. (T. p. 24, L

14-22). The Student had no idea what was going on and Parent 1 stated it was a worst-case scenario as a placement for the Student. (T. p. 25, L 1-3). At the beginning of an in-person week the Student would tantrum and cry and try to put his backpack back in the closet because after being home for so long, he didn’t want to leave the house. When the Parents tried to get him on the bus the Student would cry and hit himself. By Thursday or Friday, just when it was getting a little easier, the backpack would go back in the closet and the Student was back for a week of remote instruction at home. It was a vicious cycle for the Student because he could never get used to going back to school as the following week he would be back home again. (T. p. 25, L 5-16). Additionally, during that school year, the Student was exposed to other staff and children with COVID on three separate occasions, requiring that he be quarantined for ten days each time, so that there was another 30 days when the Student was not in school consistently. (T. p. 25, L 17-21) From Parent 1' s perspective, the entire 2020-2021 school year from September to June was a wasted year for the Student as the program was too irregular for the Student and lacked structure. The Student had no concept as to what was going on, made no progress, failed to regain any of the progress he had made prior to COVID, and rather regressed. (T. p. 27, L 2-9).

Parent 1 noted that for two years from March 2020 to March 2022, the Student was unable to receive the transition needs set forth in the IEPs covering such period. The Student was supposed to visit redacted two days per week to promote skills in loading/unloading groceries and placing items appropriately in a snack cart for distribution at school as part of his in-house workstudy program. (Ex. H-10, I-9, J-7). Because there were no outside trips during that time, there were no trips to Redacted until April 2022, and the snack cart was unavailable to the Student because they weren't going around from class to class due to COVID. The Student was never able to achieve any of their goals in this regard. (T. p. 31, L 2-25). Parent 1 further testified that she did not receive the Parent Training mandated in the Student' s IEP after February 2020. (Ex. H-15, I-12, J-11, T. p 37, L 18-21).

Parent 1 testified that all the skills the Student had learned in preparing for school, laying out clothes, making breakfast, even assisting with dressing, went away after remote and hybrid learning commenced in March 2020. Now the Parents have to dress the Student, and he makes no effort to assist. Where before he would point to things and help himself, he now looks at the Parents to even pick up his iPad. During the COVID pandemic when the Student was required to engage in online instruction, he picked up new self-stimulatory behavior (stims) and habits that he hadn't had before. Prior to COVID, when toileting the Student would come out clothed. Now he comes out naked and asks the Parents to dress him. After COVID remote learning commenced he started carrying beads for comfort, which he picks up the minute he wakes up and carries until he goes to bed. Parent 1 believes the beads relieve a lot of anxiety that he did not have prior to COVID remote instruction. (T. p. 13, L 21-25, p. 14, L 1-18).

Another stim the Student developed after COVID remote instruction commenced is constantly making loud sounds while going through the house. (T. p. 15, L 1-12). The prior written notice (PWN) dated March 7, 2022 did not inform the Parents that the Student would be aging out of his placement in June 2022 at the end of the 2021-2022 school year. (T. p. 29, L 2-15; Ex. H-25). Parent 1 was never informed that the Student might be entitled to compensatory services for students with disabilities who did not receive a benefit during online instruction. (T. p. 27, L 18- 19).

Parent 2 credibly testified as follows. After the March 2022 IEP meeting, Parent 1 informed him that the Student would be out of school after June 2022. He immediately started reaching out for assistance to find an extended placement for the Student. Parent 1 spoke to the principal of the Student's school who stated she didn't have any information about any extensions of school age eligibility available from New York State (NYS). Parent 2 was directed to contact District 75, but the person he spoke to there had no information either. (T. p. 40, L 1-

5) At the end of March 2022 Parent 2 spoke to the office of an elected official who was working on a bill to extend Autistic services, and in April 2022 he learned NYS had passed a bill extending time for students with IEPs. Parent 2 believed this would apply to the Student, but the school principal and District 75 informed him the extensions were discretionary and without criteria from NYS there was nothing they could do. (T. p. 40, L 8-25). After the Governor signed the law extending eligibility for students with IEPs who aged out of school in 2021-2022, Parent 2 again believed they would be in "good shape." But they received no further direction and filed the DPC. (T. p. 42, L 2-5). Even after filing the DPC, the Parents received no information regarding extended eligibility for the Student. (T. p. 43, L 5-6).

Parent 2 stated that since March 2020 when the COVID pandemic ended in person school, the Student is well short of where he was previously. The self-injurious behaviors that the Student had overcome when he was younger returned. Now that the Student is 6'2" and 240 lbs., the problems of injuring himself are more serious. (T. p. 43, L 11-21). Where before the Student would sleep through the night, he regressed to behaviors he had exhibited when he was younger and started coming into the Parents' bedroom at 2 or 3 o'clock in the morning wide awake and not sure of what's going on. (T. p. 43, L 22-25). When after a few days the Student would start to get used to going back to school, school would be cancelled or the Student would be sent home for 10 days due to close contact with COVID, and his anxieties would return. (T. p. 44, L 5-9). It has only been recently since the Student has been attending summer school regularly that the Parents have again been able to get him on the bus without any issues, but the Student has so far failed to recover from the regression he experienced since COVID. (T. p. 44, L 9- 13). Parent 2 is hopeful that an extension of the Student's school age eligibility, which allow him to get his educational and related services routinely again, will allow him to make progress for transition to the outside world. (T. p. 44, L 18-22).

LEGAL FRAMEWORK

Provision of a FAPE

A FAPE is offered to a student when (a) the DOE complies with the procedural requirements set forth in the IDEA, and (b) the Individualized Education Program ("IEP") developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. 3

3 Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005).

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.4 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.5 A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction."6 School districts are not required to "maximize" the potential of students with disabilities,7 but must provide "an IEP that is 'likely to produce progress, not regression,' and... affords the student with fil1 opportunity greater than mere 'trivial advancement.1118 The IEP must be "reasonably calculated to provide some 'meaningful' benefit."9 To show a denial of a FAPE based on a failure to implement an IEP, a party must establish more than a de minimums failure to implement all elements of the IEP, and instead must demonstrate that the school board or other authorities failed to implement substantial or significant provisions of the IEP.1 Courts have held that it must be ascertained whether the aspects of the IEP that were not followed were substantial, or in other words, "material."1 1

Students who have passed the maximum age of eligibility under the IDEA The IDEA requires states to make FAPE available to all resident children between the ages of 3 and 21, including children with disabilities who have been suspended or expelled from school.12 State law can extend the age of eligibility. The Office of Special Education Programs noted in Memorandum to State Directors of Special Education, 48 IDELR 76 (OSEP 2007), that although states provide FAPE for children age 3 to 17, state practices vary for students aged 18 to 21. Some states provide students FAPE throughout the school year in which they tum 21, while others terminate services on the date that a student reaches a particular age. Still others end a student's special education services at age 18. New York Education Law specifically provides IDEA eligibility to children through the end of the school year in which they tum 21.13

4 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2); Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 (S.D.N.Y. 2007).

5 20 U.S.C. § 1415(f)(3)(E)(i).

6 Rowley, 458 U.S. at 203.

1 Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 199 8), at 132.

8 Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130.

9 Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see Rowley, 458 U.S. at 192.

10 Houston Indep. Sch. Dist., 200 F.3d at 349; Fisher v. Stafford Township Bd. of Educ., 289 Fed. App'x 520, 524- 25, 2008 WL 3523992 (3d Cir. Aug. 14, 2008); Couture v. Bd. of Educ., 535 F.3d 1243 (10th Cir. 2008); Neosho R­ V Sch. Dist. v. Clark, 315 F.3d 1022, 1027 n.3 (8th Cir. 2003)

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12 34 CFR 300.101 (a).

13 Board of Educ. of New York City, 46 IDELR 264 (SEA NY 2006).

Further, "[i]f the student has become ineligible for special education by reason of age or graduation, compensatory education has been awarded if there has been a gross violation of the IDEA resulting in the denial of, or exclusion from, educational services for a substantial period of time.14

Extended Eligibility Due to COVID-19

NYS Legislation A.8021 /S.7192, signed on June 30, 2021, provided that students with IEPs who aged out of school during the 2019-2020 or 2020-2021 school years may remain in school until the student "completes the services pursuant to the IEP" or turns 23. NYS Legislation S. 7866A/A.8610A, signed by the Governor on June 13, 2022, extended the prior law to include students who aged out of school during the 2021-2022 school year:

Notwithstanding any provision of law, rule or regulation to the contrary, a school district may provide educational services in the 2022-23 and 2023-24 school years to a student who turned twenty-one years old during the 2021-22 school year and was enrolled in the school district and receiving special education services pursuant to an individualized education program. Such student may continue to receive such educational services until the student completes the services pursuant to the individualized education program or turns twenty-three years old, whichever is sooner.

This act shall take effect immediately and shall expire and be deemed repealed June 30, 2024.

Transition Assessment and Services

Under the IDEA, to the extent appropriate for each individual student, an IEP must focus on providing instruction and experiences that enable the student to prepare for later post-school activities, including postsecondary education, employment, and independent living 15 •

Accordingly, pursuant to federal law and State regulations, an IEP for a student who is at least 16 years of age (15 under State regulations), or younger if determined appropriate by the CSE, must include appropriate measurable postsecondary goals based upon age-appropriate transition assessments related to training, education, employment, and, if appropriate, independent living skills.16 An IEP must also include the transition services needed to assist the student in reaching those goals.

Transition services must be "based on the individual child's needs, considering the child's strengths, preferences, and interests" and must include "instruction, related services, community

14 See Somoza v. New York City Dep 't of Educ., 538 F.3d 106, 109 n.2, 113 n.6 (2d Cir. 2008); Mrs. C. v. Wheaton, 916 F.2d 69 (2d Cir. 1990); Burrv. Ambach, 863 F.2d 1071 (2d Cir. 1988); Cosgro ve v. Bd. of Educ., 175 F. Supp. 2d 375, 387 (N.D.N.Y. 2001)). " Appeal No. 11-027.

15 20 U.S.C. § 1401(34 ); see Educ. Law§ 4401(9); 34 CFR 300.43; 8 NYCRR 200. l (fff).

16 20 U.S.C. § 1414 (d)(l )(A)(i)(VIII); 34 CFR 300.320(b); 8 NYCRR 200.4(d)(2)( ix). experiences, the development of employment and other post-school adult living objectives, and, when appropriate, acquisition of daily living skills and functional vocational evaluation."17

It has been found that "a deficient transition plan is a procedural flaw" that will only rise to a denial of a FAPE if it impeded the student's right to a FAPE, significantly impeded the parent's opportunity to participate in the decision-making process regarding the provision of a FAPE to the student or caused a deprivation of educational benefits. 18

DECISION

School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement. 19 This case does involve a unilateral placement. Here the DOE failed to appear for the hearing or provide any witnesses or evidence to establish that the Student received a FAPE for the time period set forth in the DPC. Moreover, I find that the Parents both credibly testified that the Student was denied a FAPE for the 2019-2020 school year after in-person instruction was halted on or around March 15, 2020 due to the COVID pandemic, as well as for the 2020-2021 and 2021-2022 school years during which remote and hybrid instruction were in effect.

The hearing record established that the Student, who is non-verbal and academically functions on a prekindergarten level with an educational classification of Autism, failed to obtain any educational benefit from his District 75 program and placement once full in-person instruction ceased in March 2020 due to the COVID pandemic. During the period in question, the Student did not receive the critical OT and S/L related services mandated by his IEPs, and was deprived of regular and consistent peer interaction, which resulted in significant regression in communication, daily living, and socialization skills. Moreover, as the Student was 19 years old when full in-person instruction ceased, and turned redacted during the 2021-2022 school year, he was deprived of any benefit for the transition needs described in his IEPs and did not receive the transition services necessary to achieve his postsecondary goals for living, working, and learning as an adult. The Student's most recent IEP makes clear he required not only continued participation in his District 75 special class (6:1+1) with an emphasis on functional academics, activities for daily living, and occupational/vocational training, but a community-based vocational training opportunity in which he could promote his skills to work in retail. (Ex. H- 10). However, as testified to by Parent 1, the DOE was not able to provide Student access to the "snack cart" in-house work study opportunity described in his IEP, which contemplated twice

17 20 U.S.C. § 1401(34)(B)-(C); 8 NYCRR 200. l (fff)).

18 M.Z. v. New York City Dep't of Educ., 2013 WL 1314992, at *6, *9 (S.D.N.Y. Mar. 21, 2013 ), citing Klein Jndep. Sch. Dist. v. Hovem, 690 F.3d 390, 398 (5th Cir. 2012) and Bd. of Educ. oJ Tp. High Sch. Dist. No. 2ll v. Ross, 486 F.3d 267, 276 (7th Cir. 2007); F.L. v. New York City Dep't of Educ., 2016 WL 3211969, at *8-*9 (S.D.N.Y. June 8, 2016); C.W. v City Sch. Dist. of the City of New York, 171 F. Supp. 3d 126, 134 (S.D.N.Y. 2016); J.M. v New York City Dep't of Educ., 171 F. Supp. 3d 236, 247-48 (S.D.N.Y. 2016); A.D. v. New York City Dep't of Educ., 2013 WL 11 55570, at *11 (S.D.N.Y. Mar. 19, 2013).

19 NYS Educ. Law § 4404( l )(c). weekly visits to Redacted to promote skills in loading/unloading groceries, placing items in the cart appropriately and practicing appropriate behavior in the community.

As Parent 1's testimony made clear, the Student ' s disability prevented him from participating in or deriving a benefit from remote instruction delivered through an iPad tablet. When full remote instruction was transitioned to a "hybrid" model of one week of remote instruction and one week of in-person instruction, the Student performed even worse, as his Autism disability clearly required consistent in-person instruction and the hybrid model increased the Student's anxiety and resulted in further regression and maladaptive behaviors. As Parent 1 testified, this was a "worst-case" scenario for the Student based on his clear need for consistency in daily routine and the delivery of in-person instruction. It is clear that the Student required full in-person instruction in order to derive any educational benefit from his program, and the DOE's failure to provide such instruction resulted in evident regression in both the Student's cognitive functioning and adaptive behavior. As set forth in the NYS Education Department policy brief dated June 2021 entitled Compensatory Services for Students with Disabilities as a Result of the COVID-19 Pandemic (Ex. B-8), a CSE must determine the type and extent of compensatory services that may be necessary to address a loss of skills for students with needs so complex that they were not able to participate in or benefit from special education programs and modalities other than full in-person instruction. Here however, the DOE failed to consider the Student ' s eligibility for such compensatory services or make any determination as to the Student's eligibility, despite Parent 2 repeatedly seeking such a determination from both the Student ' s school principal and District 75. Likewise Parent 1, who participated in the meeting with the CSE that resulted in the Student ' s most recent March 2022 IEP, testified that she was never informed by the CSE that the Student could be entitled to compensatory services for students with disabilities who did not receive a benefit during online instruction.

I find that on this record the Parents have established that, based on the Student's disability and complex needs, the DOE' s failure to provide a FAPE for the period in question resulted a gross violation of the IDEA as the Student was denied and excluded from any meaningful educational services for a substantial period of time; therefore the Student is entitled to an award of compensatory education. I further find that, due to the suspension of in-person instruction over a period in excess of two years, the DOE did not provide the Student the services set forth in his IEP, including the OT and S/L therapy critical for him to make academic progress, as well as the transition services necessary for him to achieve his post-secondary goals. The DOE erred in failing to consider the Student for extended educational eligibility due to the COVID pandemic as set forth in NYS Legislation S. 7866A/A.8610A despite the Parents repeated requests that they do so. I find that, based on the Parents ' showing that the Student was deprived of any educational benefit over the course of a two-year period of remote and hybrid instruction, that the Student ' s eligibility for a public education and related services shall be extended up to and including his 23rd birthday.

ORDER

NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OFF ACT, IT IS HEREBY ORDERED THAT:

• • The Student's eligibility for a public education and related services be extended to his 23rd birthday on redacted, and that the District shall provide all of the services set forth in the Student's February 23, 2021 IEP, including educational, related, transition, and transportation services, on a 12-month basis during the period of extended eligibility; and
• • The CSE shall continue to reconvene annually to review the Student's IEP during the period of extended eligibility.

Dated: September 26, 2022

Philip P. Sturges Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

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

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

2 The DOE determined that the Student had "aged out" of public school at the conclusion of the 2021-2022 school year, but the Student remains in their program pursuant to an Interim Pendency Agreement between the parties dated June 23, 2022 pending the outcome of this case.