New York City Department of Education, Impartial Hearing Decision

CASE NUMBER:574700 - NYC: 227515

FINDINGS OF FACT AND DECISION

Student’s Name 1: [REDACTED] (“Student”)

Date of Birth: [REDACTED]

School District: [REDACTED]

Hearing Requested by: [REDACTED] (“Parents”)

Request Date/Date Complaint Filed: July ^[1], 2022

Dates of Hearing: February 16, 2023 and April 27, 2023

Actual Record Closed Date: May 19, 2023

Date of Decision: June 2, 2023

Date of Distribution if Different than Decision Date:

Hearing Officer: Lisa S. Rusk, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

FEBRUARY 16, 2023

For the Student:

[REDACTED], Attorney

For the Department of Education:

[REDACTED], Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED

APRIL 27, 2023

For the Student:

[REDACTED], Attorney

[REDACTED], Parent Student

[REDACTED], [REDACTED]

[REDACTED], Neuropsychologist

For the Department of Education:

[REDACTED], District Representative

INTRODUCTION AND PROCEDURAL HISTORY

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parents’ Due Process Complaint (“DPC"), dated July 1, 2022. (Ex. P-A)2. [REDACTED] (hereinafter referred to as “the District”) responded to the DPC on July 11, 2022 (Ex. P-C). This IHO was appointed on July 11, 2022. On July 14, 2022, the District executed a pendency implementation form based upon a resolution agreement, dated October 3, 2019 (Exs. P-D and P-E). Pendency included 12-month occupational therapy (“OT”) 2x30:1, physical therapy (“PT”) 2x30:1 and counseling 2x45:1 and 10-month special education teacher support services (“SETSS”) 15 hours per week. (Ex. P-D-1).

A pre-hearing conference was held following the resolution period on August 8, 2022. At the request of the parties, status conferences were held on September 7, 2022, October 3, 2022, November 1, 2022, December 7, 2022, January 10, 2023 and February 6, 2023 while the parties attempted to resolve the matter. At the status conference on February 6, 2023, the District’s attorney, [REDACTED] announced that the District was no longer pursuing settlement in this case based upon the filing of a federal indictment against a principal in the agency who was providing special education services to the Student. [REDACTED] stated that the District was seeking to submit two subpoenas for IHO signature (T2:2-3) ^[3]. The Parents’ attorney [REDACTED] expressed that this was the first she was hearing that the District was no longer pursuing settlement and objected to the subpoenas (T2:4-5). The District stated that it would not be putting on a case or presenting any witnesses, but would be challenging the Parents’ case (T2:8). A hearing date was scheduled for March 6, 2023 (T2:11).

The District submitted a draft subpoena duces tecum for records from Special Edge via email on February 7, 2023. By email, dated February 10, 2022, [REDACTED] objected to the subpoena. A hearing date was scheduled for February 16, 2023. On February 15, 2023, [REDACTED] advised the IHO that the Parents had filed an amended DPC. The parties met on February 16, 2023 for hearing. The amended DPC was accepted by the District on February 22, 2023. A prehearing conference on the amended DPC was held on March 27, 2023. An interim order on the disputed subpoena and revised executed subpoena was issued on April 7, 2023. The hearing was held on April 27, 2023. [REDACTED] appeared on behalf of the Parents.

2 Exhibits shall be referred to as follows: “P” for Parents’ Exhibit; “D” for District’s or Department’s Exhibits; and “IHO” for Impartial Hearing Officer’s Exhibits. Exhibits will be followed by the exhibit number and page numbers as needed and appropriate. [REDACTED] appeared on behalf of the District. Parent Exhibits A-Y^[4] were entered into evidence. The Parents presented three witnesses, including the Student’s mother. The District did not present any witnesses or evidence, but argued in its opening statement that the Parents had not met their burden, there is no evidence that the Parents cooperated with the District and the Parents have not presented a contract obligating them to pay [REDACTED] (T2:49). Parents’ counsel clarified that they were not seeking reimbursement for services or direct funding to any specific provider (T2:50-51).

Six extensions of the compliance date were granted at the request of the parties while they worked toward resolving the case. The final extension was granted for the submission of closing briefs (T2:113-14). The Parents submitted a closing brief. The District did not. The record was closed on May 19, 2023.

JURISDICTION

The due process hearing was held, and a decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq. The Parents also raised claims under Section 504 of the Rehabilitation Act of 1973.

BACKGROUND

The Student was [REDACTED] years old at the time of the filing of the DPC. He was classified by the District’s Committee on Special Education (“CSE”) as a student with an emotional disturbance. A CSE meeting was held on May 19, 2021 to develop an Individualized Education Program (“IEP”) for the Student for the 2021-22 school year. No IEP was developed for the 22-23 school year until December of 2022 (Ex. P-B-16). Neither IEP was introduced into evidence. The Student was unilaterally placed by the Parents at the [REDACTED] (hereinafter referred to as “the private school”) for both school years at issue.

ISSUES

The Parents allege in the 22-page amended DPC a multitude of procedural and substantive claims regarding both the 2021-22 and 2022-23 school year resulting in a denial of FAPE to the Student (Ex. P-B). The Parents seek a finding that the District failed to provide the Student a FAPE for both years, denied appropriate evaluations and reevaluation, subjected the Student to blanket policies and predeterminations and discriminated against the Student based upon his disability. The Parents seek compensatory education for failure to fund the pendency services and direct payment to the provider and/or reimbursement for the items the District is not funding. The amended DPC states the District should fund the following:

• 15 hours of individualized supports by trained special educators knowledgeable about ADHD and learning differences and capable of flexibly providing academic and behavioral support

• Behavioral support plan in place to minimize disruptive behaviors

• 12 month extended school year to prevent regression

• Occupational therapy

• Counseling

• Neuropsychological re-evaluation in 1-2 years

It further requests an increase in 1:1 instruction and related services, as well as home-based services at “enhanced market rates” by providers of the Parents’ choice, reimbursement for any out-of-pocket expenses and all other appropriate relief (Ex. P-B-21-22).

As stated above, the District failed to present any case in support of its actions for the 2021-22 and 2022-23 school years (T2:8, 49). The only defenses raised by the District were that there is no evidence that the Parents cooperated with the District, and the Parents have not presented a contract obligating them to pay [REDACTED] (T2:49).

In their closing brief the Parents’ request for relief is modified as follows:

• A finding of a denial of FAPE for 2021-22 and 2022-23

• A finding that the District discriminated against the Student

• 180 compensatory hours of 1:1 special instruction/SEIT ^[5]

• Make-up services for 2021-22 and 2022-23 for SEIT, OT and SLT

• A determination that an appropriate program going forward includes a program and placement consistent with the neuropsychologist’s report

• The District shall fund a private independent functional behavior assessment (“FBA”) and behavior intervention plan (“BIP”) at reasonable market rate.

• The District shall reimburse the Parent $4,500 for the cost of the neuropsychological assessment (Parents’ Closing Brief at pps. 14-15).

FINDINGS OF FACT

The Student has been receiving special education supports since preschool when he received PT, OT and SEIT services (Ex. P-Q-1). He was classified by the CSE as a student with an emotional disturbance, and a kindergarten IEP was developed recommending Integrated coteaching (“ICT”) classes for his core academic skills along with OT and PT and a full-time behavioral paraprofessional. He never received these services, as his prior CPSE IEP services have continued through pendency (Ex. P-Q-2). In the 2022 neuropsychological evaluation, the prior diagnoses of Attention-Deficit Hyperactivity Disorder (“ADHD”) and Oppositional Defiant Disorder (“ODD”) were confirmed, and consideration of the possibility of an Unspecified Anxiety Disorder was recommended (Ex. P-Q-14-15). The neuropsychologist found that the Student has made appropriate progress, and his academic skills are progressing well (Ex. P-Q-16). The neuropsychologist does not make any recommendations for compensatory education or 12-month services in his November 2022 report (Ex. P-Q-16-18). The neuropsychologist testified that the Student “has been able to make appropriate progress and his academic skills are progressing well.” (Ex. P-W-7).

Neither party introduced an IEP into the record. It is also unexplained why the parties never sought to have an Individualized Education Services Program (“IESP”) developed for this Student who has been in attendance at a private school for at least the last three years. The Student’s classroom at the private school currently has 18 students and 2 teachers (T:69). [REDACTED]^[6] testified that she has been providing special education itinerant teacher (“SEIT”) services to the Student for the last three years since he was in first grade. She testified that she is certified to teach special education and general education in New York State (T:68-69). She provides three hours of services five days per week. He needs help to regulate his emotions, attend during classroom lessons and one-to-one instruction to make up for instructional time he misses during outbursts (T:65,67). He does not need a lot of help socially anymore but requires some guidance initiating socialization with friends and peers and reminders to provide personal space when interacting (T:68).

A November 2022 SEIT report states that the Student learns best through visual models as well as hands on approaches. He generally understands new content easily and quickly and is eager to learn. His strong emotions often interfere with his ability to learn, and he presents with high levels of distractibility (Ex. P-P-3). The SEIT’s report indicates his emotional outbursts and tantrums are extreme and significantly impede his classroom functioning and ability to learn and that he has great difficulty navigating his day without SETSS support (Ex. P-P-4).

Pursuant to the first neuropsychological testing conducted in August of 2020, the Student had a full-scale IQ of 136 (Ex. P-M-17). His academic achievement scores using the WIAT-III were within normal limits for his age but were below expectations based on his very high intelligence (Ex. P-M-8). His scores on intelligence testing were confirmed on a reevaluation conducted in October and November of 2022 (Ex. P-Q-19). On the updated WIAT-III testing, his word reading score went from the 25th percentile to the 91st percentile, and pseudoword decoding went from the 61st percentile to the 86th percentile. His reading comprehension went from the 55th percentile to the 58th percentile. In math although slightly lower, his scores were in the high average range in 2022 (Ex. P-M-18-19 and Q-21). In March of 2022, his Fountas and Pinnell reading level was at a level K, which was age appropriate (Ex. P-N). In November of 2022, his Fountas and Pinnell reading level had progressed to a level N which was age appropriate for his grade level (Ex. P-P-1). His math skills were also assessed as appropriate by his SEIT (Ex. P-P-2). His writing skills are described as delayed and requiring 1:1 assistance due primarily to his frustration and lack of focus (Ex. P-P-2). It is apparent when reviewing his most recent SEIT report that, although improved, the Student’s behavioral and attentional challenges greatly affect his classroom functioning (Ex. P-P-4).

The Parent testified that her understanding of the SEIT is that she sits with him in the classroom to make sure he does not disturb the other students in the classroom and works with him one-to-one providing him coping skills to help him succeed in the classroom (T:99-100). She said with the help of the SEIT his behavior has improved at home and in school (T:100). She testified that the CSE had developed a behavior plan for the Student but that she did not agree that it was appropriate to meet his needs (T:101). The Parent testified that she did not request the District fund the 2022 neuropsychological evaluation until the hearing request (T:105).

The SEIT testified that the Student regresses and loses skills over the summer. In September he has a difficult transition period where his tantrums are very frequent and very intense, and he needs a lot of support to get through each day. She testified that his regression is behavioral (T:72). Academically, in September his reading fluency and comprehension were a little bit below where he was, and he needed help with writing. He was very unfocused and had many tantrums. He was back on track by the end of October/November (T:73). She testified that he was on grade level at the end of June 2022 and on grade level when assessed again in November of 2022 (T:73-74). The neuropsychologist testified that the Student requires compensatory education to get him back to the place he would have been had he been receiving all of the services he needed. When asked if he needs to get back to where he should be academically, he stated that that was “tricky to say”. He stated academically he is doing nicely, and his main issues are more social and emotional (T:92). The psychologist testified that he personally has not observed any regression in the Student, and it would be hard for him to say whether he has regressed (T:91-92). He stated that the classifications of other health impairment and emotional disturbance are both appropriate for the Student (T:95).

With regard to his tantruming, no one has been keeping any data, but the SEIT testified that his tantrums as of April have reduced from once per day to once or twice per week (T:75). He misses one to maybe three periods per week of instructional time due to tantrums(T:75-76). The staff have been utilizing a behavior chart, and he’s been improving in all areas of targeted behavior (T:76-77). She testified that he is not receiving any OT, PT or counseling at the school (T:77-78). The Parent testified that these services were not a priority (T:108).

CONCLUSIONS OF LAW

The IDEA provides that children with disabilities are entitled to a Free Appropriate Public Education ("FAPE") (20 U.S.C. § 1400 [d][1][A]). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written IEP (34 C.F.R. § 300.13). A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). In order to meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances” Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988 (2017). If a procedural violation has occurred, relief is warranted only if the procedural violation affected the student's right to a FAPE. 8 NYCRR §200.5[4]; J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 (2d Cir. 2000). School districts are obligated to provide the services listed in a Student’s IEP. In New York State, school districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings. (NYS Educ. Law § 4404[1][c]).

With regard to 12-month services, the Regulations of the Commissioner of Education state that substantial regression means “a student’s inability to maintain developmental levels due to a loss of skill or knowledge during he moths of July or August of such severity as to require an inordinate period of review at the beginning of the school year to reestablish and maintain IEP goals and objectives mastered at the end of the previous school year.” (8 NYCRR 200.1[aaa]).

A District must ensure that a student is evaluated in all areas related to her disability and that such evaluation is sufficiently comprehensive to identify all of the student’s special education and related services needs (34 CFR 300.304[c][4] and [6]; 8 NYCRR 200.4[b][6][ix] and[x]). Pursuant to Section 200.5(g)(1)(iv) of the Commissioner’s Regulations:

“If a parent requests an independent educational evaluation at public expense, the school district must, without unnecessary delay, either ensure an independent educational evaluation is provided at public expense or file a due process complaint notice to request a hearing to show that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria.”

A parent is entitled to one IEE at public expense each time the school district conducts a comprehensive evaluation with which the parent disagrees (34 CFR 300.502[b][5]).

The SRO has held that a parent may request a district funded IEE in a due process complaint notice in the first instance (see Application of a Student with a Disability, Appeal No. 19-094). After a parent requests an IEE in the due process complaint notice, it is incumbent on the district to grant the evaluation or to present an argument in defense of its evaluation of the student.

Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]; (see 20 U.S.C. §§ 1401[3], 1412[a][1][B]; Educ. Law §§ 3202[1], 4401[1], 4402[5]). The purpose of an award of compensatory education is to “make up for” a denial of a FAPE and place the student in the position he or she would have been had the IDEA not been violated (see E.M. v. New York City Dept. of Educ., 758 F.3d 442, 451 & n.12 [2d Cir. 2014]; P. v. Newington Board of Educ., 546 F.3d 111,123 [2nd Cir. 2008] [holding that compensatory education is a remedy designed to "make up for" a denial of a FAPE]). Accordingly, an award of compensatory education should aim to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA (see Newington, 546 F.3d at 123). Generally, compensatory services are not designed for the purpose of maximizing a student’s potential or to guarantee that the student achieve a particular grade-level in the student’s area of need (Application of a Student with a Disability, Appeal Nos. 23-019, 16-033). Although the District has failed to offer any documentary evidence, witnesses of closing brief to meet its burden of proof on the issue of compensatory education, the IHO is not required to merely adopt the relief proposed by the Parents (Application of a Student with a Disability, Appeal No. 23-019). Where a District fails to implement a student’s pendency placement, a student should receive the pendency services to which they were entitled as a compensatory remedy (Doe v. E. Lyme, 790 F.3d 440, 456 [2nd Cir. 2015]).

ANALYSIS

The District failed to meet its burden to prove that it provided the Student a FAPE for the 2021-22 and 2022-23 school years. Based upon the District’s acknowledgement that it failed to offer the Student a FAPE for both years, I do not find it necessary to address all of the procedural and substantive challenges raised by the Parents in the amended DPC. As asserted by the Parents, the question for this IHO is what if anything, should the remedy be.

Based upon the pendency implementation form entered into evidence, the Student was entitled to the following services from the filing of the DPC on July 1, 2022 through the date of this decision:

OT – 2X30:1

PT – 2X30:1

Counseling – 2X45:1

SETSS – 15 hours per week, effective September 2022.

Behavior Management Paraprofessional – daily, effective September 2022.

The Parent seeks as a final remedy “make-up” hours for SEIT, OT and SLT during the 2021-22 and 2022-23 school year (Parents’ closing brief at pg. 15). Since there is no evidence in the record of the Student being entitled to SLT services, I am assuming the Parents are requesting the makeup services for OT, PT and counseling that are owed pursuant to the pendency order as requested in the Parents’ opening statement (T2:56) ^[7]. To the extent that the Student has not received, the above-referenced services during the pendency of this hearing, he is entitled to such as compensatory services. It is reasonable that such services be placed in a bank to be utilized during the next three years.

The Parents have sought an independent FBA and BIP. According to the documents in the record, the last FBA was conducted in December of 2017. The District has failed to raise any challenge to the parents’ request for an independent FBA and BIP or defense of its own evaluation, and it is clear that the Student’s behaviors impede his learning. As such, the District shall fund an independent FBA and BIP.

The District also raised no challenge to the Parents’ request for the reimbursement of the 2022 neuropsychological evaluation. The Parents provided the report to the District to be reviewed in the development of an IEP for the 2022-23 school year. Given that there was no opposition raised to the request or defense of the District’s own evaluation, I find the Parents are entitled to reimbursement of the cost of the 2022 neuropsychological evaluation in the amount of $4500. I find no basis in the record for ordering another neuropsychological evaluation at this time.

The Parents request 180 hours of 1:1 special instruction/SEIT services to compensate for the District’s failure to recommend 12-month services during the Summer of 2021 and Summer of 2022. The Parents rely on the testimony of the neuropsychologist and SEIT. There is no mention for the need of compensatory education in the recommendations of the neuropsychologist’s comprehensive report. The neuropsychologist during his testimony stated that the Student requires compensatory education to get him back to the place he would have been had he been receiving all of the services he needed. However, when asked if he needs to get back to where he should be academically, he stated that that was “tricky to say”. He stated academically he is doing nicely, and his main issues are more social and emotional (T:92). Academically, his reading and math are on grade level (Ex. P-. His academic test scores in both the neuropsychological and the SEIT reports do not reflect significant regression or a need for 12-month special education teacher services. The neuropsychologist testified that he had made progress between August of 2020 and October/November of 2022 (T2:85-86). When asked if he had observed any regression, he stated “I actually think he’s been making progress with the current supports he’s been receiving.” (T:91). His SEIT testified that his reading regressed “a little bit below where it was” but by November of 2022 he was at a level N on Fountas and Pinnell three levels above where he had been in March of 2022. Based upon a complete and thorough review of the record, there is an insufficient basis for a finding that the Student required compensatory education for the District’s failure to recommend and provide the Student with 12-month special education teacher services during the Summer of 2021 and Summer of 2022.

The 2022-23 school year is coming to a close shortly. The record is devoid of any evidence regarding the 2023-24 school year, and this IHO does not have jurisdiction over that school year. Relief in the form of the prospective placement of a student in a particular type of program and placement with particular services, such as the order sought by the Parents in this matter, has the effect, in most circumstances of circumventing the statutory process, pursuant to which the CSE is tasked with reviewing information about the student's progress under current educational programming and periodically assessing the student's needs (see Adams v. Dist. of Columbia, 285 F. Supp. 3d 381, 393, 396-97 [D.D.C. 2018] [noting with approval the hearing officer's finding "that the directives of IDEA would be best effectuated by ordering an IEP review and revision, rather than prospective placement in a private school"]; see also Student X v. New York City Dept. of Educ., 2008 WL 4890440, at 16 [E.D.N.Y. Oct. 30, 2008] [noting that "services found to be appropriate for a student during one school year are not necessarily appropriate for the student during a subsequent school year"]). Application of a Student with a Disability, SRO Appeal No. 21-207. I have no progress reports in the record regarding how the Student is presently performing in the Spring of 2023. The Parents’ request for an order of a prospective program and placement is denied. If it has not done so already, the District’s CSE should convene to develop an IEP for the 2023-24 school year.

The Parents assert that the District has discriminated against the Student based upon his disability. The Parents argue that the District violated Section 504 of the Rehabilitation Act by failing to consider 1:1 special education teacher services after transitioning to CPSE and subjected him to blanket policies failing to ensure that he has equal access to his education. With regard to illegal policies, the record does not contain any evidence of illegal policies of the District other than the Parents’ testimony that a 1:1 special education teacher was unavailable after he turned 5. It is clear under the Regulations of the Commissioner of Education that the Student was no longer entitled to SEIT services upon aging out of preschool and entering Kindergarten. I do not find that the record establishes that the Student’s needs were such that they could not have been met with the assistance of supplementary school personnel under 200.1(hh), rather than a 1:1 special education teacher. The Parents have failed to meet their burden that the District has either acted in “bad faith or with gross misjudgment.” (Maus v. Wappingers Cent. Sch. Dist., 688 F. Supp2d 282 (SDNY 2010). I find that the record does not support a finding that the District discriminated against the Student based upon his disability.

ORDER

Based upon the above Findings of Fact and Conclusions of Law, it is hereby: ORDERED that the District is directed to pay for any missed special education teacher services and related services of OT, PT and counseling which were not provided and accrued during the pendency period from July 1, 2022 through the date of this decision upon signed invoices from the provider, with documentation of dates of service, time spent and description of services provided to the Student. The District shall within 30 days of the date of this decision calculate the number of special education and related services hours mandated but not provided during the pendency period school and place the hours in a bank to be utilized within the next three school years.

ORDERED that the District shall fund an independent FBA and BIP at a reasonable market rate. Such FBA and BIP shall be provided to the District upon completion and reviewed by the District’s CSE.

ORDERED that the District shall reimburse the Parent $4500 for the cost of the November 2022 neuropsychological evaluation upon receipt of proof of payment.

SO ORDERED.

DATED: June 2, 2023

Impartial Hearing Officer

Lisa S. Rusk, Esq.

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.

APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD

PARENT EXHIBITS

A. Exhibit Description Date Pages Impartial Hearing Request 07/01/2022 22 pages

B. Amended Impartial Hearing Request 02/15/2023 23 pages

C. Due Process Response 07/11/2022 4 pages

D. Pendency Agreement 07/14/2022 2 pages

E. Resolution Agreement 10/03/2019 5 pages

F. Parent’s Fax to CSE Regarding Neuropsychological Evaluation and Proof of Service 06/30/2022 23 pages

G. Functional Behavioral Assessment 12/21/2017 4 pages

H. DOE Social History Update 01/14/2019 1 page

I. DOE Classroom Observation 01/31/2019 1 page

J. DOE ED Update 01/31/2019 2 pages

K. DOE Child Outcomes Summary Form 04/09/2019 1 page

L. DOE Social History Update May 2020 05/11/2020 2 pages

M. Neuropsychological Evaluation April 2021 04/22/2021 20 pages

N. [REDACTED] SEIT Report March 2022 03/21/2022 5 pages

O. DOE Social History Update August 2022 08/12/2022 2 pages

P. [REDACTED] SEIT Report November 2022 11/03/2022 5 pages

Q. Neuropsychological Evaluation November 2022 11/13/2022 23 pages

R. School Intervention Plan Undated 2 pages

S. Email Communication Between Parent’s Counsel and DOE Regarding Neuropsych Report 07/12/2021 2 pages

T. Email Communication Between Parent’s Counsel 06/30/2022and DOE Regarding IEP Meeting and Reports 07/12/2022 2 pages

U. [REDACTED] Invoice for Services 03/19/2023 1 page

V. [REDACTED] Affidavit of Services 09/15/2022 1 page

W. Affidavit of [REDACTED] Undated 12 pages

X. Affidavit of [REDACTED] Undated 15 pages

Y. Affidavit of [REDACTED] 04/10/2023 4 pages

Footnotes

[1] Personally identifiable information is attached as Appendix A, “Redaction Identification Page,” to this decision and must be removed prior to public distribution.

[3] The court reporter started numbering the transcripts from page 1 again on February 6, 2023. References to transcripts from August 8, 2022 through January 10, 2023 will be referred to by T: followed by a numeral. References to transcripts from February 6, 2023 through April 27, 2023 will be referred to by T2: followed by a numeral.

[4] A more detailed list of the admitted exhibits is attached as Appendix B, “Documentation Entered Into the Record,” to this decision.

[5] SEIT or special education itinerant teacher services are defined as services provided by certified special education teachers of an approved preschool program or on an itinerant basis to a preschool student with a disability (NYS Education Law 4410[1][k] and 8 NYCRR 200.16).

[6] Hereinafter referred to as “the SEIT”.

[7] Parents’ counsel did not refer to missed special education and related services during the 2021-22 school year in her opening statement and pendency was not in effect pursuant to this hearing during that time frame. There is no evidence in the record regarding an entitlement to services during the 2021-22 school year and the District’s failure to provide such that would enable this IHO to order compensatory services for that school year.