NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
NEW YORK STATE EDUCATION DEPARTMENT
IMPARTIAL DUE PROCESS HEARING
Case Cover Sheet
IHRS or NYC Case No.: 228182
School District: [Redacted]
Impartial Hearing Officer: Patricia L. Murrell, Esq., IHO
Request/Complaint Date: July 5, 2022
Date of Appointment: July 14, 2022
Filed/Date of Decision: March 25, 2024
NEW YORK STATE EDUCATION DEPARTMENT
IMPARTIAL DUE PROCESS HEARING
STUDENT, a minor, by and through his/her Parent(s),
Case No. 228182
[REDACTED] and
[REDACTED]
Petitioner,
Patricia L. Murrell, Hearing Officer
- against -
New York City Department of Education School District # [Redacted]
FINDINGS OF FACT AND DECISION
Respondent.
I. INTRODUCTION[1]
This matter comes before the undersigned Impartial Hearing Officer (“Hearing Officer” or “IHO”), pursuant to the impartial hearing request and demand for due process (“Complaint”) filed on July 5, 2022, by the petitioner, [Redacted] and [Redacted], the parents (“Petitioners” or “Parents”) of [Redacted], currently a [Redacted]-year-old student with a disability (“Student”), as against the New York City Department of Education (“NYC-DOE”), Committee on Special Education (“CSE”) [Redacted], District [Redacted] (“Respondent” or “District”, together with the Petitioners or Parents, the “Parties”).
On July 14, 2022, this Hearing Officer was appointed to preside over Case No. 228182. The Prehearing Conference (“PHC”) was held on August 10, 2022, during which the Parents confirmed that the primary issues alleged and relief requested and presented for determination, as detailed in the Complaint, included, inter alia, denial of a free appropriate public education (“FAPE”), based on the District’s alleged failure to develop an appropriate individualized education program (“IEP”) for the 2022/2023 school year, which incorporated at-home Special Education Teacher Support Services (“SETSS”). The Complaint sought, inter alia, a psychoeducational evaluation, speech-language therapy (“SLT”) evaluation and classroom observation (together, the “Evaluations”); and thereafter, a reconvene of the CSE. On August 10, 2022, the Parties fully-executed a Pendency Program Agreement, nunc pro tunc, to July 1, 2022, for District funding of a 12-month program of at-home SETSS (5/wk.).[2] During the PHC, the Parties requested the scheduling of a due process hearing (“Hearing”).
II. JURISDICTION
This Findings of Fact and Decision (“Decision”) is being rendered in accordance with the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400 et. seq. (“IDEA”); the Federal Regulations implementing IDEA, 34 C.F.R. 300.1 et seq.; Codes, Rules and Regulations of the State of New York, 8 NYCRR § Part 200; New York State Education Law, and its implementing Regulations, Educ. Law Art. 89 § 4404, et. seq.
III. BACKGROUND
This Hearing Officer commenced the Hearing telephonically and via videoconference on September 14, 2022, during which oral opening statements were presented on the record (“Hearing Record”) by the Respondent who was represented by [Redacted], Esq., Attorney for the District; and the Petitioners who were represented by [Redacted], Advocate for the Parent. The Hearing was Closed. The District’s proposed exhibits (“1 through 11”) were proffered for submission, with objections as to exhibits 7, 8 and 10, which were overruled; and an objection to exhibit 9, which was sustained. The Parents’ proposed exhibits (“A through M”) were proffered for submission, with objections as to exhibits B and K, which were overruled. Pursuant to directive, the ‘Joint Statement of Facts[3] was submitted on September 8, 2022; and the ‘Statement of Issues to be Adjudicated[4] was submitted on September 9, 2022. The Respondent presented testimony on September 14, 2022, by School Psychologist [Redacted], Ph.D. (“School Psychologist”); and on September 15, 2022, by Treatment Coordinator [Redacted] (“Coordinator”) of the NYS-Approved non-public school (“NPS”) Day Program of [Redacted] (“NPS-Day”). Thereafter, the Petitioners presented testimony by the Parent, [Redacted]; Director [Redacted] (“Director”) of [Redacted] Services (“Agency”); and subsequent to issuance of a Subpoena Ad Testificandum, NPS-Day Teacher [Redacted] (“Teacher”). The witnesses attested that the testimony provided during the Hearing was true and correct; and each of the witnesses were subjected to cross-examination. On October 6, 2022, the Parties presented their oral closing statements. The Hearing Transcript(s) were circulated to the Parties on September 19, 2022; September 20, 2022; and October 11, 2022. On November 7, 2022, the District[5] and the Parents[6] each submitted their respective Post Hearing/Closing Brief. The Record was Closed on March 11, 2024.
IV. PRELIMINARY ISSUES PRESENTED
This Hearing Officer certified the following issue(s) for adjudication at the Hearing:
A. Whether the District denied the Student a FAPE during the 2022/2023 school year.
B. Whether the Student was entitled to at-home SETSS during the 2022/2023 school year.
C. Whether the Student was entitled to Evaluations funded/conducted by the District.
V. FINDINGS OF FACT
After considering all of the evidence in the Hearing Record, as well as the arguments asserted by both Parties, this Hearing Officer’s Findings of Fact are as follows: [7]
1. Towards the end of her Kindergarten school year, the Student qualified for an IEP; was classified as a child with a learning Disability; and during her First Grade, was placed in an integrated co-teaching (“ICT”) class with a classroom Paraprofessional. [8]
2. In March 2018, the Student underwent Psychoeducational and Psychiatric Evaluations conducted by or on behalf of the NYC-DOE (together, the “2018 Evaluations”); whereupon diagnostically, it was opined that her thoughts, behaviors and actions comported with the presence of Attention Deficit Hyperactivity Disorder (“ADHD”), Combined Presentation; Obsessive Compulsive Disorder (“OCD”); and Borderline Intellectual Functioning.[9]
3. On October 8, 2018, [Redacted], Ph.D. reported that at the Parents’ behest, an independent Neuropsychological Evaluation was conducted on September 7, 2018, September 8, 2018, and September 11, 2018 (“2018 Neuropsychological Evaluation”), to augment the 2018 Evaluations and identify home-based supports and/or therapeutic interventions to compliment special education services and supports, which had been provided since September 2018 by the NPS-Day to the Student; who presented with enduring and persistent expressions of inattention, restlessness-impulsivity, oppositionality, defiance, generalized worries, rigidity, inflexibility and challenges in spheres of academic performance (particularly reading comprehension and arithmetic reasoning). The 2018 Neuropsychological Evaluation confirmed the Student’s diagnosis of Autism Spectrum Disorder (“ASD”) - Level 1, ADHD - Combined Presentation, and an Unspecified Anxiety Disorder; and recommended that due to the presence of behavioral and social communication deficits and their impact on the Student’s scholastic and interpersonal functioning, her IEP classification should be changed from Emotional Disturbance to Autism; and in light of the scope and depth of her academic challenges, the Student should remain in a nurturing and slowly-paced self-contained 12-month program, which uses hands-on and multisensory learning methods. Due to the Student’s progressively more disruptive and maladaptive behaviors, and pervasive nature of her challenges, it was further recommended that a comprehensive Functional Behavioral Assessment (“FBA”) be conducted and a Behavioral Intervention Plan (“BIP”) be developed. The 2018 Neuropsychological Evaluation also recommended, inter alia, that to increase her social problem-solving and flexibility, she should receive individualized counseling and participate in a social-skills group; and in an effort to pre-teach and re-teach material, ensure homework initiation and completion, solidify her grasp of academic content, and address identified deficiencies in adaptive functioning, she should receive home-based SETSS instruction (5 hrs./wk.), with a BIP carry-over.[10]
4. On January 4, 2021 [Redacted], NYC-DOE Middle School Educational Supervisor, developed a BIP for the Student, which referenced an underlying FBA that was not proffered by the Parties for inclusion into the Hearing Record. [11]
5. On December 7, 2021, Treatment Coordinator [Redacted] and Special Education Teacher [Redacted] conducted an FBA of the Student on behalf of the NYC-DOE (“2021 FBA”), which identified one of the Student’s targeted behavior as Distractibility due to internal and external stimuli; and indicated that she is unable to remain focused on task; involves herself in situations impacting other students; not responsive to redirection despite multiple attempts; reacts in incongruent fashion; may become physical when met with delayed gratification; and verbalizes statements that disrupt and agitates her peers. The 2021 FBA determined that due to the Student’s dysregulated behaviors, she has difficulty completing academic work in the classroom room. The 2021 FBA reported that the behavioral supports and interventions currently in place for the Student consisted of placement in a small classroom setting, 1:1 behavior support, planned breaks and walks, journaling, individual and group therapy, SLT, and a daily visit with preferred staff member.[12]
6. On December 7, 2021, [Redacted], [Redacted] and 1:1 Paraprofessional [Redacted] developed a BIP for the Student on behalf of the NYC-DOE (“2021 BIP”), which referenced the 2021 FBA for baseline data, functional hypothesis and global influences related to the Student’s targeted behavior; and thereafter, established replacement behaviors intervention strategies and a progress monitoring schedule.[13]
7. On December 15, 2021, an Order of Pendency on Consent was issued for at-home SETSS (5 hrs./wk.), based on the FOFD issued in Case No. 191805, dated May 5, 2021.[14]
8. On December 13, 2021, [Redacted] issued the NPS-Day Individual Verbal Therapy Summary (“2021 Verbal Therapy Report”), which reported that the Student was an active participant and had made incremental progress in the mandated 1:1 therapy sessions; was responsive to utilizing strategies recommended to decrease inappropriate statements, including journalizing her thoughts; however, she would often express her thoughts out loud causing further dysregulation of her peers. Ongoing verbal therapy sessions were recommended to assist the Student’s focus on implementing mindfulness techniques, including self-regulation and distress tolerance to maintain control when presented with delayed gratification and limit setting. [15]
9. On December 13, 2021, [Redacted] issued the NPS-Day Psychosocial Summary Update, which indicated that in September 2021, the Student’s psychiatric stability began to decline due to her ongoing perseveration issues; she was unable to maintain self-control and present in a dysregulated state at home and in school; however, medication adjustments subsequently negated the need for planned hospitalization.[16]
10. In December 2021, [Redacted] issued the NPS-Day Educational Progress Report (“2021 Educational Report”), which indicated that the Student has academic delays, deficits in fine motor skills, and expressive and receptive language; demonstrates perseverative and impulsive behaviors; exhibited limited social awareness, coping, interpersonal and executive functioning skills, all of which impeded both her ability to learn and form age-appropriate interpersonal relationships. It was reported that she benefitted from 1:1 behavior management paraprofessional support and prompts from staff; requires a highly structured program that utilizes a multimodality approach to enable her understanding of the subject-matter and class content; and needs a small student ratio with constant reinforcement, including repetition and hand-on activities.[17]
11. In December 2021, Speech-Language Pathologist [Redacted], issued the NPS-Day Individual/Group SLT Progress Report (“2021 SLT Report”), which indicated that the Student presented with mild-moderate expressive language disorder, receptive language disorders and a moderate-pragmatic language disorder; and her development of academic, cognitive, linguistic, and social/behavioral skills were compounded by attention deficits and impulsivity. It was recommended that the Student required a continuation of 1:1 and Group SLT, which should also target her executive functioning skills as it pertains to written expression and perspective taking/problem solving skills. [18]
12. On December 22, 2021, the CSE conducted a meeting (“2021 CSE Meeting”), which was attended telephonically by the Parent; Advocate [Redacted]; NPS-Day Special Education Teacher [Redacted]; School Psychologist [Redacted]; [Redacted]; SETSS Provider [Redacted] (“Provider”); and [Redacted], who participated in a dual-capacity as the Social Worker and District Representative (together, the “2021 CSE Team”).
During the 2021 CSE Meeting, the Student was classified as a child with an Emotional Disturbance, and an IEP was developed for the Student (“2021 IEP”).[19]
13. The 2021 IEP referenced the observations and findings of the Scholastic Reading Inventory, dated June 6, 2021, and Scholastic Math Inventory, dated October 7, 2021; and although not expressly named/defined thereon, the 2021 IEP incorporated language from the 2021 Verbal Therapy Report, 2021 Educational Report, and 2021 SLT Progress Report (together, the “2021 NPS-Day Reports”). The 2021 IEP noted that the Student received compensatory SETSS from the Provider, who reported during the 2021 CSE Meeting that she had established a rapport with the Student, and worked with her on Reading, Math, goal setting, self-advocating, homework completion, coping strategies and social emotional tools. The 2021 IEP reflects that the Parent expressed certain concerns regarding SETSS that were also shared by the Advocate during the 2021 CSE Meeting, which included, inter alia, that the Student was finally starting to make progress and the Parent would like the IEP to reflect at-home SETSS. The 2021 CSE Team advised the Parent that the IEP needed to reflect the Student’s school-based needs, and thereafter reviewed his parental rights to mediation and an impartial hearing.[20]
14. The 2021 IEP delineated the Student’s Management Needs and further indicated, inter alia, that due to her significant social/emotional needs, the Student required the support of a highly structured therapeutic day treatment program with medication management and the individual assistance and supervision of a 1:1 behavior management Paraprofessional, with modifications to the curriculum, testing accommodations, and frequent contact with her therapist. In addition, the 2021 IEP indicated that the Student needed strategies, behavioral intervention plans or other supports to address behaviors that impeded her learning or that of others. Notably, however, the 2021 IEP neither indicates that any additional evaluations were conducted or considered by the District prior to or during the 2021 CSE Meeting.[21]
15. Thereafter, the 2021 IEP recommended a twelve-month Special Class 8:1+1 program in a NYS-Approved NPS-Day (35/wk.); with related services that included 1:1 SLT (1x30); Group SLT (1x30); 1:1 Counseling (1x30); Group-of 5 Counseling (1x30); a 1:1 full-time Paraprofessional for behavioral support; and Group Parent Counseling and Training (“PCAT”) (4x60/year) (together, the “Recommended Program.”). In addition to establishing the Student’s Transition Activities and Transportation Needs, the 2021 IEP indicated that the 2021 CSE Team considered other programs for the Student including, Special Class in a specialized school 8:1+1; Special Class in a specialized school 12:1+1; NYSED-Approved NPS-Residential; and SETSS; however, each were rejected as being inappropriate to meet the Student’s needs. More particularly, the District 75 programs were not considered restrictive enough; a Residential Facility was considered too restrictive; and SETSS was not considered an appropriate support during the school day in light of the Student’s other supports, which included the NPS-Day, SLT, Counseling, 1:1 Behavioral Paraprofessional; and PCAT. [22]
16. On December 22, 2021, the 2021 CSE Meeting minutes were issued (“2021 CSE Minutes”), which highlighted the members of 2021 CSE Team; and provided a checklist of 2021 IEP section(s) that were discussed thereat, including, inter alia, Goals, 2021 NPS-Day Reports, Present Levels of Functioning; in addition to the Parents’ and Advocate’s concerns, and Provider and District’s comments regarding the inclusion of home-based SETSS. Notably, the 2021 CSE Minutes responded “n/a” in relation to ‘Recent testing or Observation available’ [23].
17. On December 23, 2021, a prior written notice (“PWN”) was issued, which reiterated the CSE proposed recommendations for the Student’s Special Education, Related Services and Supports; referenced an implementation date for the 2021 IEP of January 13, 2022; and indicated that evaluations or assessments used in developing the 2021 IEP included a Classroom Observation, dated December 17, 2019 and the 2021 Educational Report.
Notably, however, the PWN neither specified the name nor identified the location of the recommended placement for the ‘NYSED-Approved Non-Public School – Day’.[24]
18. In June 2022, the NPS-Day issued the Student’s Quarterly Progress Report and Report Card for the 2021/2022 school year.[25]
19. In August 2022, the NPS-Day issued the Student’s Summer School Report Card.[26]
20. On September 6, 2022, the Provider issued the Student Progress Report from the Agency, which indicated, inter alia, that the Student continued to work on improving peer relationships; and demonstrated some progress in focusing to complete assignments, social-emotional coping skills, and in English Language Arts (“ELA”); however, she continued to display tantrums and non-complaint behavior. The Provider opined that the Student required substantial support to function, help maintain and modify her behavior, and prevent regression (“2022 Student Progress Report”).[27]
21. On September 7, 2022, the Agency Director [Redacted] duly-executed an Affidavit and Verification of Services estimating that the total cost of the Student’s at-home SETSS was thirty-four-thousand-five-hundred ($34,500.00) dollars, based on five (5) hours/week, at one-hundred-fifty ($150.00) dollars for the forty-six (46) week period during the 2022/2023 school year; which would be provided to the Student by the Provider who is not an NYC-DOE employee and holds a NYS Teacher Certification.[28]
22. The Respondent proffered School Psychologist [Redacted], Ph.D. as a witness, who holds a Doctorate in Educational Psychology; Master’s in Education; and School Psychology Certification.
23. The School Psychologist testified that she is employed by the NYC-DOE and was assigned by the CSE to manage the caseload for the NPS-Day and other schools. The School Psychologist confirmed her attendance and attendees at the 2021 CSE Meeting; provided an overview of the general procedure for issuance of an IEP and PWN; and testified regarding the basis for the program and placement recommendations made by the 2021 CSE Team, which included a review of the 2021 NPS-Day Reports, the 2021 FBA, 2021 BIP, and discussions relating to the Student’s academic strengths, weaknesses, behavior, social-emotional development, goals, management needs, and parental concerns. The School Psychologist opined that based thereon, the goals developed in the 2021 IEP were attainable by the Student, who benefitted from small group instruction in a small class size ratio, SLT and Counseling; needed support in the classroom and encouragement throughout the day; and required behavioral support due to her perseveration on certain issues, self-regulatory challenges, and difficulties recognizing how others are affected by her actions.[29]
24. The School Psychologist further testified that the 2021 CSE Team considered other programs to ensure that the Student received the right level of support in the least restrictive environment (“LRE”), including the Parents’ request to add at-home SETSS to the 2021 IEP; in response to which, the Parent was advised that the school-based IEP should reflect the proper way to the support the Student during the school day. The School Psychologist testified that she could only recommend school-based services; and opined that did not believe that at-home SETSS (5/wk.) was needed by the Student because the maximum size for SETSS when recommended in-school is eight (8), and with a recommendation of 8:1+1 with a Paraprofessional, in-school SETSS would have been inappropriate.[30]
25. During cross-examination, the School Psychologist affirmed that the Student’s last psychoeducational evaluation was conducted almost four (4) years prior; and further testified that they [CSE] try to conduct psychoeducational evaluations every three (3) years as part of the mandated reevaluation review process; however, the evaluation is not always a requirement, as there is an element of flexible assessment; and the Parents had the right to request an updated evaluation at any time beforehand. Subsequent to which, the School Psychologist acquiesced that the Student should have received a psychoeducational evaluation in advance of the 2021 CSE Meeting.[31]
26. The School Psychologist testified that SLT can neither be recommended nor included on the IEP as part of the Student’s related services, absent an SLT evaluation; however, the School Psychologist affirmed that she did not know when the Student’s last SLT evaluation was conducted. The School Psychologist further testified that the most recent Classroom Observation of the Student was conducted during the 2019/2020 school year by [Redacted], a CSE Social Worker. In relation to the CSE’s consideration of the Parents’ request for at-home SETSS, the School Psychologist affirmed that she does not consider at-home services in relation to a restrictive or LRE setting; testifying that her job is to meet the child’s needs during the school day. Thereafter, the School Psychologist admitted that some students who are placed in an NPS also receive at-home SETSS; however, neither she nor CSE members have the authority to make a recommendation on the IEP, such determination can only be obtained subsequent to an impartial hearing.
Further testifying that while the Behavioral Paraprofessional is not meant to teach academic subjects, conversely, any Special Education Teacher, whether in-school or at-home, in conformity with other members comprised of the group effort developed at NPS-Day, can address the Student’s goals, needs and challenges in ELA, Writing, OT, SLT and Counseling, as well as other issues related to her academics, attentional, focusing, redirection, behavioral, studying and organizational skills.[32]
27. The Respondent proffered the Head of Admissions and Treatment Coordinator of NPS-Day, [Redacted], LCSW, as a witness, who holds a Master’s in Social Work.
28. The Coordinator confirmed her attendance at the 2021 CSE Meeting and testified that the 2021 IEP recommendations remained unchanged from the prior year. The Coordinator opined that she does not believe that the Student required either at-home or in-school SETSS because she received individualized academic and behavioral support at NPS-Day; admitting thereafter, that she was not familiar with what SETSS does, other than providing academic support, and the Student would benefit more from socialization groups. Further testifying that adding at-home SETSS to the IEP would result in the Student’s potential loss of funding for her attendance at the NPS-Day program. In addition to authenticating the ‘2021 Psychosocial Summary Update’, the Coordinator also authenticated the unsigned Individual Verbal Therapy Summary and testified that she was uncertain as to whether the Parents’ received a copy from the CSE, subsequent to NPS-Day submitting it to the NYC-DOE.[33]
29. During cross-examination, the Coordinator testified that the Student required a lot of 1:1 support, individualized instruction and therapy to address her distractibility; together with prompting, redirection and repetition to help the Student with focusing to academic tasks, gaining independence and decreasing perseveration. The Coordinator confirmed that the Student’s last psychiatric evaluation was conducted in 2018; and recommended that the Student should be evaluated every three (3) years, as she needs a psychoeducational report, social history update and a psychiatric evaluation; which the Coordinator opined should be completed by the Student’s current physician or an independent provider, because the Student requires prescriptive medications.[34]
30. The Petitioners proffered NPS-Day Special Education Teacher [Redacted] as a witness, who holds a Master’s in Education; and NYS Licenses as a Special Education Teacher.
31. The Teacher testified that he has provided instruction to the Student for two (2) years, formerly ELA and more recently Global History. The Student has exhibited difficulties with distractibility, perseveration, remaining attentive to academic tasks and completing an assignment, and resultantly requires multiple prompts throughout the school day. The Teacher testified that he recently became aware that the Student was receiving at-home SETSS, and although he has not seen whether its benefiting her, it might help with the Regents exams. Subsequent to further clarification, the Teacher testified that the Student had shown big growth and improvement in class, due in part to the Student’s response to his teaching style and support; in addition to, the SETSS Provider who the Student reported to the Teacher that “the work was done with the lady who used to come in the evening.”[35]
32. During cross-examination, the Teacher testified that although the Paraprofessional was able to assist the Student last year with staying-on-task, it was as yet unknown as to whether the current Paraprofessional was trained or certified to help the Student with the short-answer or critical questions related to the Regents classes. The Teacher further testified that there is no additional homework assistance available at the NPS-Day; noting however, that the Student had demonstrated some academic progress with her work in-class subsequent to receiving at-home SETSS; specifically, she completed all of her assignment more timely, without reminders. The Teacher opined that she did not believe that at-home academics or more homework would frustrate the Student, as she never expressed displeasure at work and has tried to be diligent in class; however, the Student would prefer to socially interact in the community. [36]
33. The Petitioners proffered the Parent as a witness, who confirmed his attendance at the 2021 CSE Meeting; and testified that in advance thereof, he did not receive copies of the 2021 Verbal Therapy Report, 2021 Psychosocial Summary Update, or 2021 Educational Report. The Parent further testified that subsequent to requesting that at-home SETSS be added to the Student’s IEP, the 2021 CSE Team advised that it could not be added to the IEP because it is not part of the nonpublic school system, which would basically result in a loss of funding if they supported at-home SETSS.[37]
34. The Parent confirmed that during the 2019/2020 school year, the Student struggled immensely with her emotional, social and coping skills, as well as academically in all core subjects. Thereafter, subsequent to receiving at-home SETSS, which commenced in October 2021, the Student started to demonstrate slow but noticeable improvement in ELA and Science, with less in History and none in Math. Attesting that the SETSS Provider successfully utilized behavioral and coping strategies to coax the Student into completing certain academic tasks and assignments. The Parent testified that the NPS-Day program and placement, together with the at-home SETSS was appropriate for the Student; and further testified regarding his concerns if the Student’s services were abruptly terminated, advising that she does not acclimate well to sudden change or the discontinuance of things or people, she has become accustomed to. The Parent opined that the discontinuance of at-home SETSS would result in a major-meltdown.[38]
35. The Petitioner proffered the Agency Director, [Redacted], as a witness, who holds a Master’s in Special Education; Master’s in General Education; Bachelor’s in Education; and NYS Teaching Certification.
36. The Director testified that the Student has severe delays across the board with a lot of behavioral issues, which necessitated a two to three (2-3) month search to locate the SETSS Provider, a NYC-fingerprinted, NYS Licensed and Certified, really unique, trained individual with the appropriate background to help the Student progress, stop certain behaviors and transition into new positive behaviors. The Director testified that the Provider worked with the Student on pre-homework, homework, and other assignments towards the attainment of the IEP Annual Goals, including, inter alia, ELA, Writing, Math, Vocabulary and Reading. Further testifying that through the Provider’s prompting and repetition, the Student received at-home SETSS, where she also learned, inter alia, reasoning, conversational, coping and problem-solving skills; and demonstrated progress academically and behaviorally. The Director opined that the Student should continue to receive at-home SETSS from the Provider, who has build a good rapport and helped her to develop routine, structure and maturity. The Director confirmed that the Agency’s hourly rate is one-hundred-fifty ($150.00) dollars.[39]
37. During cross-examination, the Director testified that she never worked directly with the Student but receives quarterly progress reports from the Provider, who compiles daily notes related to the Student, which are submitted on a weekly basis. The Director opined that based on her experience, she has seen at-home SETSS included on an IEP for another NPS student, which does affect funding.[40]
VI. CONCLUSIONS OF LAW AND DISCUSSION
This Hearing Officer will examine the facts established by documentary and testimonial evidence contained in the Hearing Record; and determine the proper application of Federal and State Regulations, Statutes and Caselaw, to render a Decision that discusses the following, as applicable to the 2022/2023 school year: (1) whether the District failed to conduct and/or consider sufficient evaluative data; (2) whether the District failed to develop an appropriate IEP; (3) whether the District met its statutory burden of proof, production and persuasion relating to the alleged denials of FAPE; and (4) whether equitable considerations favor District funding of the Student’s Evaluations and/or at-home SETSS.
A. IDEA
The IDEA’s purpose is “to ensure that all children with disabilities have available to them a free appropriate public education.” T.K. v. N.Y.C. Dep’t of Educ., 810 F.3d 869, 875, (2d Cir. 2016); citing 20 U.S.C. § 1400(d)(1)(A). More particularly, the IDEA seeks to ensure that (1) students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) the rights of students with disabilities and parents of such students are protected. 20 U.S.C. § 1400(d)(1)(A)-(B); Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 238-239 (2009); Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). The Second Circuit finds that, “[i]n practice, this means that [the Districts] have an affirmative obligation to provide a basic floor of opportunity for all children with disabilities, … described [as] an education likely to produce progress, not regression, and one that affords the student with an opportunity greater than mere trivial advancement.” T.K., 810 F.3d 869, 875; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 195 (2d Cir. 2005); quoting Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998); see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 254 (2d Cir. 2009); P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 (2d Cir. 2008).
The centerpiece of the IDEA and its principal mechanism for achieving the goal of “a basic floor of opportunity for all children with disabilities” is the IEP. Honig v. Doe, 484 U.S. 305, 311 (1988); D.S. v. Bayonne Bd. of Educ., 54 IDELR 141 (2010); quoting Polk v. Cent. Susquehanna Intermediate Unit, 16, 853 F.2d 171, 173 (3d Cir. 1988). The IEP is the means by which special education and related services are tailored to the unique needs of a particular child. Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988, 994 (2017); quoting, Rowley, 458 U.S. 176, 181. However, the “IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP.” Walczak, 142 F.3d 119, 130; see Rowley, 458 U.S. 176, 203. The statute ensures an “appropriate” education, “not one that provides everything that might be thought desirable by loving parents” Walczak, 142 F.3d 119, 132; quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989).
B. FAPE
FAPE must be offered to each Student with a disability residing in the District who requires special education services or programs. 20 U.S.C. §1412(a)(1)(A); Educ. Law §4402(2)(a)(b)(2). The District offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction”. Rowley, 458 U.S. 176, 203. A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits. Rowley, 458 U.S. 176, 206-207; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 (2d Cir. 2014); R.E. v. New York City Dep’t of Educ., 694 F.3d 167, 189-90 (2d Cir. 2012); M.H. v. New York City Dep’t of Educ., 685 F.3d 217, 245 (2d Cir. 2012); Cerra, 427 F.3d 186, 192. However, under the IDEA, a substantive violation may arise where the substantive content, such as the educational services, contained in the IEP, is insufficient to afford FAPE; and procedural violations may occur when the District fails to comply with the IDEA’s process-based requirements.
The IDEA directs that a two-part inquiry must be made based on substantive grounds and procedural inadequacies, to determine whether a Student received a FAPE. 20 U.S.C. §1415(f)(3)(E). At the first step, Courts examine whether there were procedural violations of the IDEA, namely, “whether the state has complied with the procedures set forth in the IDEA.” Cerra, 427 F.3d 186, 192. If procedural violations are alleged, then a determination is made that the Student did not receive a FAPE, only if the District’s alleged 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 his/her educational benefits. 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. 300.513(a)(2); 8 NYCRR 200.5(j)(4)(ii); Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 (2007); R.E., 694 F.3d 167, 190; M.H., 685 F.3d. 217, 245; A.C. v. Bd. of Educ., 553 F.3d 165, 172 (2d Cir. 2009). Courts then examine whether the IEP was substantively adequate, namely, whether it was “reasonably calculated to enable the child to receive educational benefit[s].” Cerra, 427 F.3d 186, 192; quoting, Rowley, 458 U.S. 176, 206- 07. Since Rowley, Courts have generally viewed violations of FAPE as substantive when they involve:
(1) content, adequacy and compliance with an IEP;
(2) implementation of the IEP; or (3) failure to educate in the least restrictive learning environment. Substantive inadequacy automatically entitles the Parents to reimbursement. As discussed more fully infra, an examination was undertaken by this Hearing Officer to determine whether the Student’s right to a FAPE was procedurally and/or substantively hindered by the District, during the 2022/2023 school year.
C. IEP
The centerpiece for the implementation of FAPE is the IEP. S.H. v. State-Operated Sch. Dist. of the City of Newark, 336 F.3d 260, 264 (3d Cir. 2003). An appropriate educational program begins with an IEP, which includes a statement of the student’s present levels of academic achievement and functional performance (34 C.F.R. 300.320(a)(1); 8 NYCRR 200.4(d)(2)(i); Tarlowe v. New York City Bd. of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008); establishes annual goals designed to meet the student’s needs resulting from the student’s disability and enables him or her to make progress in the general education curriculum 34 C.F.R. 300.320(a)(2)(i); 34 C.F.R. 300.320(2)(i)(A); 8 NYCRR 200.4(d)(2)(iii); and provides for the use of appropriate special education services. 34 C.F.R. 300.320(a)(4); 8 NYCRR 200.4(d)(2)(v)(6). The Supreme Court has indicated that “[t]he IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement.” Endrew F., 137 S. Ct. 988, 999. “The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created”. Endrew F., 137 S. Ct. 988, 1001. The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit”. Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); Endrew F., 137 S. Ct. 988, 1001 (the IDEA “requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances”); Rowley, 458 U.S. 176, 192. The student’s recommended program must also be provided in the least restrictive environment (“LRE”). 20 U.S.C. §1412(a)(5)(A); 34 C.F.R. 300.114(a)(2)(i), 300.116(a)(2); 8 NYCRR 200.1(cc); 8 NYCRR 200.6(a)(1); Newington, 546 F.3d 111, 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 (2d Cir. 2007); Walczak, 142 F.3d 119, 132. However, in order to determine whether a Student is eligible to receive a FAPE under the IDEA, the District must first conduct an initial evaluation to identify the Student’s educational needs. 20 U.S.C. § 1414(a)(1)(A); 34 C.F.R. 300.301(a). Thereafter, the District must develop and recommend an IEP, which reflects the evaluation results (8 NYCRR § 200.4(d)(2)(i)); classifies the Student under one disability category (34 C.F.R. 300.641(c)); and “include[s] special education and related services tailored to meet the unique needs of a particular child and be reasonably calculated to enable the child to receive educational benefits.” Frank G. v. Dd. Of Educ. Of Hyde Park, 459 F.3d 356, 363 (2d Cir. 2006).
The IDEA directs that, in general, this Hearing Officer’s decision must be made on substantive grounds based on a determination of whether the Student received a FAPE. 20 U.S.C. §1415(f)(3)(E)(i). The District offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction”. Rowley, 458 U.S. 176, 203. However, the “IDEA does not itself articulate any specific level of educational benefits that must be provided through an [IEP].” Walczak, 142 F.3d 119, 130; see Rowley, 458 U.S. 176, 203. “The adequacy of a given [IEP] turns on the unique circumstances of the child for whom it was created”. Endrew F., 137 S. Ct. 988, 1001. The IDEA’s purpose is “to ensure that all children with disabilities have available to them a free appropriate public education.” T.K., 810 F.3d 869, 875, citing 20 U.S.C. § 1400(d)(1)(A). Therefore, to provide a FAPE, an IEP developed by the District must be reasonably calculated to enable the Student to receive educational benefits.
a. DEVELOPMENT OF IEP
The Parents assert that the District’s failure to develop an appropriate IEP for the Student, constituted a denial of FAPE for the 2022/2023 school year.
It is widely held that Federal and State regulations each require that in order to meet its legal obligations, the District must have an IEP in effect at the beginning of each school year for each child with a disability in its jurisdiction. 34 CFR 300.323(a); 8 NYCRR 200.4(e)(1)(ii); Cerra, 427 F.3d 186, 194; K.L. v. New York City Dep’t of Educ., 2012 WL 4017822, at *13 (S.D.N.Y. Aug. 23, 2012), aff’d, 530 Fed. App’x 81 (2d Cir. 2013); B.P. v. New York City Dep’t of Educ., 841 F. Supp.2d 605, 614 (E.D.N.Y. 2012); Tarlowe, 2008 WL 2736027, at *6. In accordance therewith, the IDEA requires a CSE to review and, if necessary, revise the Student’s [IEP] at least annually. 20 U.S.C. §1414(d)(4)(A); 34 CFR 300.324(b)(1); 8 NYCRR 200.4(f). In addition, Federal and State Regulations mandate that the CSE must revise the Student’s IEP, as necessary, to address “[i]nformation about the child provided to, or by, the Parent during the course of a reevaluation of the Student. 34 CFR 300.324(b)(1)(ii)(C); 8 NYCRR 200.4(f)(2)(ii); and State Regulations provide that, if parents believe that their child’s placement is no longer appropriate, they “may refer the student to the [CSE] for review”. 8 NYCRR 200.4(e)(4). State Regulations further provide that, if appropriate, an IEP must be revised to address “any lack of expected progress toward the annual goals and in the general education curriculum . . . the results of any reevaluation conducted . . . and any information about the student provided to, or by, the parents . . . or . . . the student’s anticipated needs.” 8 NYCRR 200.4(f)(2)(i-iii).
In developing recommendations for a student’s IEP, the CSE must consider the results of the initial or most recent evaluation; the student’s strengths; the concerns of the parents 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 assessment; 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). As to be discussed more fully infra, the Hearing Record reflects that prior to the 2021 CSE Meeting, the District had received the 2021 FBA, which indicated that due to her Distractibility and dysregulated behaviors, the Student had difficulty completing academic work in the classroom; and in addition, the District also had access to the 2018 Neuropsychological Evaluation, wherein it was determined that in an effort to pre-teach, re-teach, ensure homework initiation and completion, solidify her grasp of academic content and address identified deficiencies in adaptive functioning, the Student should receive home-based SETSS instruction. Notably however, with the exception of a 2019 Classroom Observation and certain aspects of the 2021 NPS-Day Reports, which were essentially progress reports, the District did not obtain or otherwise reference any other evaluations, findings, opinions or assessments that were considered or conducted of the Student; the results of which would have lent a more adept guidance to the CSE Team in their efforts to develop recommendations for an educational program and placement suitable for handling the Student’s unique needs during the 2022/2023 school year. Accordingly, “[w]hen a child requires special-education services, a school district’s failure to propose an IEP of any kind is at least as serious a violation of its responsibilities under IDEA as a failure to provide an adequate IEP.” Forest Grove, 557 U.S. 230, 238-239. Here, the Hearing Record is bereft of any indication that the CSE developed an appropriate IEP subsequent to the 2021 CSE Meeting. Consequently, in accordance with the findings of Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 450 (2d Cir. 2015); quoting Forest Grove, 557 U.S. 230, 238-239, the District’s failure to develop/provide an appropriate IEP, prior to commencement of the Student’s 2022/2023 school year, constituted a procedural violation of the IDEA.
1. SUFFICIENCY of EVALUATIONS and ASSESSMENTS
The Parents contend that the District failed to conduct or consider sufficient evaluative data in advance of developing the 2021 IEP.
Prior to the development of an IEP, the child must be evaluated to determine whether a need for special education exists. Evaluations are a foundational tool by which students are determined [or not] to be eligible for special education and related services under the IDEA. An evaluation of a student must be sufficiently comprehensive to identify all of the student’s special education and related services’ needs, whether or not commonly linked to the disability category in which the student has been classified. 34 C.F.R. 300.304(c)(6); 8 NYCRR 200.4(b)(6)(ix). An initial evaluation of a student must include a physical examination, a psychological evaluation, a social history, a classroom observation of the student, and any other “appropriate assessments or evaluations” as necessary to determine factors contributing to the student’s disability. 8 NYCRR 200.4(b)(1). Any evaluation of a student with a disability must use a variety of assessment tools and strategies to gather relevant functional, developmental and academic information about the student, including information provided by the parent that may assist in determining, among other things the content of the student’s IEP. 20 U.S.C. § 1414(b)(2)(A), (B); 34 CFR 300.304(b)(1)(ii); Letter to Clarke, 48 IDELR 77 (OSEP 2007). The District must rely on technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors. 20 U.S.C. § 1414(b)(2)(C); 34 CFR 300.304(b)(3); 8 NYCRR 200.4(b)(6)(x).
The District may elect to conduct additional evaluations or assessments to appropriately assess the Student in all areas related to the suspected disabilities. 8 NYCRR 200.4(b)(3). However, Federal and State Regulations mandate that the District must conduct an evaluation of a Student where the educational or related services needs of a Student warrant a reevaluation or if the Student’s Parents or Teacher requests a reevaluation. 34 C.F.R. 300.303(a); 8 NYCRR 200.4(b)(4). While a District need not conduct a reevaluation more frequently than once per year unless the Parent and the District agree otherwise. 34 CFR 300.303(b)(1); a reevaluation of a student with a disability must be conducted by a multidisciplinary team or group that includes at least one teacher or specialist with knowledge in the area of the Student’s disability. 8 NYCRR 200.4(b)(4). The reevaluation must be “sufficient to determine the Student’s ability to participate in instructional programs in regular education and the Student’s continuing eligibility for special education.” 8 NYCRR 200.4(b)(5). Therefore, whether it was an initial evaluation or a reevaluation, the District was obligated to ensure that the Student was aptly assessed in relation to her disability, including, where appropriate, social and emotional status. 20 U.S.C. § 1414(b)(3)(B); 34 CFR 300.304(c)(4); 8 NYCRR 200.4(b)(6)(vii).
Pursuant to the Federal and State procedures for determining a student’s eligibility and educational needs, a “[CSE] and other qualified individuals must draw upon information from a variety of sources, including aptitude and achievement tests, parent input, and teacher recommendations, as well as information about the student’s physical condition, social or cultural background, and adaptive behavior.” 8 NYCRR 200.4(c)(1); 34 CFR 300.306(c)(i). Further, either an independent educational evaluations (“IEE”) obtained at public expense or a private evaluation obtained at private expense “[m]ust be considered by the school district, if it meets the school district’s criteria, in any decision made with respect to the provision of a [FAPE] for the student.” 8 NYCRR 200.5(g)(1)(vi)(a); 34 CFR 300.502(c)(1). Although the CSE is required to consider reports from privately retained experts, it is not required to adopt their recommendations. G.W. v. Rye City Sch. Dist., 2013 WL 1286154, at *19 (S.D.N.Y. Mar. 29, 2013); C.H. v. Goshen Cent. Sch. Dist., 2013 WL 1285387, at *15 (S.D.N.Y. Mar. 28, 2013); T.B. v. Haverstraw-Stony Point Cent. Sch. Dist., 933 F. Supp. 2d 554, 571 (S.D.N.Y. 2013); Watson v. Kingston City Sch. Dist., 325 F. Supp. 2d 141, 145 (N.D.N.Y. 2004) (noting that even if a district relies on a privately obtained evaluation to determine a student’s levels of functional performance, it need not adopt wholesale the ultimate recommendations made by the private evaluator). However, the CSE is obligated to take under consideration critical information and evaluative material that would facilitate the proper development of an IEP for the Student.
The Hearing Record evinces that in addition to its failure to conduct any comprehensive evaluations or assessments of the Student in advance of the 2021 CSE Meeting, the District neither sought, obtained nor integrated independent evaluative data and information, which would have enabled the 2021 CSE Team to properly formulate a determination that incorporated pertinent information regarding the Student’s challenges and/or needs, in relation to her ADHD, ASD, OCD and Borderline Intellectual Functioning, (together, the “Diagnoses”), when developing the 2021 IEP. More particularly, the District was advised greater than three (3) years hence that in addition to academic delays, distractibility and dysregulation, the Student presented with, inter alia, enduring and persistent expressions of inattention, restlessness-impulsivity, oppositionality, defiance, generalized worries, rigidity, inflexibility, executive functioning challenges, expressive, receptive and pragmatic language disorders, limited social awareness, together with perseverative, disruptive and maladaptive behaviors, all of which impeded both the Student’s ability to learn and that of others.
This notwithstanding, the District was admittedly aware that the Student’s most recent Neuropsychological, Psychoeducational and Psychiatric Evaluations were conducted in 2018. In fact, one of the District’s witness confirmed that the Student needed a triennial reevaluation consisting of a psychoeducational report, social history update and a psychiatric reevaluation, which the Coordinator opined should be completed by the Student’s current physician or an independent provider, because the Student requires prescriptive medications. In addition, the School Psychologist admitted that she did not know when the Student’s last SLT evaluation was conducted; and affirmed the most recent Classroom Observation of the Student was conducted during the 2019/2020 school year. Resultantly, the CSE Team did not adequately consider or factor in any other recent evaluative data in relation to her challenges or unique needs, prior to developing the 2021 IEP. Based thereon, it was incumbent upon the District to conduct a full evaluation or reevaluation of the Student at least once per year; or otherwise offer persuasive evidence that in accord with Regulations of the Commissioner of Education, assessments were conducted and/or deemed unnecessary to ensure that the Student could receive an educational benefit and a FAPE for the 2022/2023 school year.
When determining whether an [IEP] was substantively adequate, a determination must be made as to whether the [IEP] was “reasonably calculated to enable the child to receive educational benefits.” Rowley, 458 U.S. 176, 207. However, the District neither presented any sufficient testimonial evidence nor additional evaluative materials it relied upon during the 2021 CSE Meeting, which established how the Student could have meaningfully benefitted from the recommendations set forth in the 2021 IEP. Hence, the District’s failure to at least consider the recommendations set forth in the 2018 Neuropsychological Evaluation, 2018 Evaluations and/or to obtain alternate or updated evaluative data, thwarted the CSE’s ability to recommend an appropriate educational program, services and supports for the Student, in relation to her unique cognitive needs and challenges. Fundamentally, the absence of sufficient evaluative data and information used and/or considered by the District during the 2021 CSE Meeting, which could have addressed the individualized, academic and/or or behavioral measures needed to educate the Student, reasonably raises questions as to the appropriateness of the IEP that was developed and special educational programs and provisions that were recommended thereunder to address the Student’s needs. “R.E. stands for the unremarkable proposition that when the reports and evaluative materials present at the CSE meeting yield a clear consensus, an [IEP] formulated for the child that fails to provide services consistent with that consensus is not ‘reasonably calculated to enable the child to receive educational benefits’” A.M. v. N.Y.C. Dep’t of Educ., 845 F.3d 523, 543 (2d. Cir. 2017); Rowley, 458 U.S. 176, 207.
Subsequent to its failure to adequately defend against the alleged denial of FAPE, the District failed to address its burden of proving that the 2021 IEP did not require further redress to appropriately meet the Student’s unique needs arising from her (dis)abilities. Therefore, having acted in opposition to certain statutory requirements, including, inter alia, 20 U.S.C. §1414(b)(3)(B); 34 CFR 300.304(c)(4); 8 NYCRR 200.4(b)(6)(vii), it is this Hearing Officer’s determination that the District failed in its obligation to consider all evaluative data available and/or to ensure that the Student was fully and appropriately evaluated and assessed in all areas related to her suspected disabilities, prior to conducting the 2021 CSE Meeting, and thereafter prior to developing the 2021 IEP. Consequently, the procedural deficiencies and substantive violations under the IDEA resulted in the District’s failure to offer the Student a FAPE for the 2022/2023 school year.
Accordingly, it is this Hearing Officer’s determination that whereas the District neither obtained a comprehensive evaluation or assessment of the Student’s (dis)abilities, nor ascertained an adequate identification of her special education needs and related services, the District is statutorily obligated to conduct a full reevaluation of the Student, which shall include, but not be limited to, a Psychoeducational Evaluation, SLT Evaluation and Classroom Observation (together, the “Reevaluations”). Alternatively, if the District fails to timely conduct the aforementioned Reevaluations of the Student, within thirty (30) days of this Decision, then in accordance with the authority vested in this Hearing Officer pursuant to 34 CFR 300.502 and 8 NYCRR 200.5(g)(2), the District shall provide, at public-expense, independent educational evaluations (“IEEs”) of the Student, to fully ascertain to what extent special education and related services may be needed. “Public Expense” is defined to mean that the District must “either pay the full cost of the evaluation or ensure that the evaluation is otherwise provided at no cost to the parent.” 34 C.F.R. § 300.502(a)(3)(ii). IEEs are defined by State Regulation as “an individual evaluation of a student with a disability or a student thought to have a disability, conducted by a qualified examiner who is not employed by the public agency responsible for the education of the student.” 8 NYCRR 200.1(z); 34 C.F.R. 300.502(a)(3)(i). Notably, entitlement to an IEE does not ripen only after the District conducts an evaluation, it is also borne by the District’s failure to evaluate or reevaluate the Student in all areas related to the suspected disabilities. Consequently, the Parent has an “equitable right” to public funding of the IEEs because the District should have but did not appropriately evaluate the Student in a timely manner. Los Angeles Unified Sch. Dist. v. D.L., 49 IDELR 252 548 F. Supp. 2d 815, 822 (C.D. Cal. 2008). Further, upon completion of the Reevaluations, or where/if necessary, the IEEs, the CSE shall reconvene to review and consider the results of the evaluations, findings and opinions, and thereafter to develop appropriate recommendations for an amended IEP based on the evaluative data and information provided therein.
2. APPROPRIATENESS OF PROGRAM
The Parents assert that the District’s failure to provide an appropriate program contributed to and constituted a denial of the Student’s FAPE.
The United States Department of Education (“USDOE”) has noted that it “referred to ‘placement’ as points along the continuum of placement options available for a child with a disability, and ‘location’ as the physical surrounding, such as the classroom, in which a child with a disability receives special education and related services”. Placements, 71 Fed. Reg. 46588 (August 14, 2006). This view is consistent with an OSEP opinion, which indicates that the assignment of a particular school is an administrative decision provided it is made in conformance with the CSE’s educational placement recommendation. Letter to Veazey, 37 IDELR 10 (OSEP 2001); White v. Ascension Parish Sch. Bd., 343 F.3d 373, 379 (5th Cir. 2003); Veazey v. Ascension Parish Sch. Bd., 2005 WL 19496 (5th Cir. 2005); A.W. v. Fairfax Co. Sch. Bd., 372 F.3d 674, 682 (4th Cir. 2004); Concerned Parents & Citizens for the Continuing Educ. at Malcolm X Pub. Sch. 79 v. New York City Bd. of Educ., 629 F.2d 751, 756 (2d Cir. 1980).
While the IDEA requires parental participation in determining the educational placement of a child (34 CFR §§ 300.116, 300.327, 300.501(c)); however, ultimately it is the program of specialized instruction and related service contained in the Student’s IEP that forms the basis for the placement decision. Accordingly, program and “placement decisions must be individually determined on the basis of each child’s abilities and needs and each child’s IEP, and not solely on factors such as . . . availability of special education and related services, configuration of the service delivery system, availability of space, or administrative convenience”. Reusch v. Fountain, 872 F. Supp. 1421, 1425-26 (D. Md. 1994); Placements, 71 Fed. Reg. 46588; 34 CFR 300.116(b)(2); 8 NYCRR 200.6(a)(2); T.M., 752 F.3d 145, 163 (finding that the IDEA’s LRE requirement is not limited, in the extended school year context, by what programs the school district already offers, but rather must be based on the student’s needs); Adams v. State, 195 F.3d 1141, 1151 (9th Cir. 1999).
i. RECOMMENDED PROGRAM
An appropriate educational program begins with an IEP, which includes a statement of the student’s present levels of academic achievement and functional performance; (34 CFR 300.320(a)(1); 8 NYCRR 200.4(d)(2)(i); Tarlowe, 2008 WL 2736027, at *6); establishes annual goals designed to meet the student’s needs resulting from the disability and enables him or her to make progress in the general education curriculum); 34 CFR 300.320(a)(2)(i); 34 CFR 300.320(2)(i)(A); 8 NYCRR 200.4(d)(2)(iii)); and provides for the use of appropriate special education services. 34 CFR 300.320(a)(4); 8 NYCRR 200.4(d)(2)(v)(6). Under NYS Law, the Commissioner of Education may approve the provision of “special services or programs” to students with disabilities through a variety of methods, including contracts entered into by boards of education of public schools and private non-residential schools within the State. Educ. Law §§4401(2)(e), 4402(2)(a); 8 NYCRR 200.1(d); 8 NYCRR 200.7. It is the individualized needs of all students with disabilities in a District, which will ultimately determine which special education services shall be rendered by an approved private provider. Educ. Law §4402(2)(a). Accordingly, the Student’s placement must be individually determined based on the Student’s abilities and needs; and to the extent necessary to offer the Student an appropriate educational program, his/her IEP must identify the supplementary aids and services to be provided to the Student. 20 U.S.C. §1414(d)(1)(A)(i)(IV); 34 CFR 300.320(a)(4); 8 NYCRR 200.4(d)(2)(v)(a); 8 NYCRR 200.4(d)(2)(v) (b)(3); Piazza v. Florida Union Free Sch. Dist., 777 F. Supp. 2d 669, 673 (S.D.N.Y. 2011); Gavrity v. New Lebanon Cent. Sch. Dist., 2009 WL 3164435, at *30 (N.D.N.Y. 2009) (discussing the student’s IEP which appropriately identified program modifications, accommodations, and supplementary aids and services).
ii. AT-HOME SETSS
The Parents contend that the District’s failure to provide the Student with at-home SETSS during the 2022/2023 school year, constitutes a denial of FAPE.
Some students with disabilities have certain needs that require educational and related services, which exceed beyond the regular school day and/or school year. However, the Court has held that even though a student may have benefited from home-based services it does not mean that such services are necessary to receive a FAPE. R.B. v. New York City Dep’t of Educ., 2013 WL 5438605, at *15 (S.D.N.Y. Sept. 27, 2013), aff’d, 589 Fed. App’x 572 (2d Cir. Oct. 29, 2014). Accordingly, an IEP does not need to include extended school day services or home-based services after school if such services would only address the student’s behaviors at home or assist the student in generalizing skills or knowledge. L.K. v. New York City Dep’t of Educ., 2016 WL 899321, at *8-*10 (S.D.N.Y. Mar. 1, 2016), aff’d in part, 674 Fed. App’x 100 (2d Cir. Jan. 19, 2017); Student X v. New York City Dep’t of Educ., 2008 WL 4890440 at *17-*18; (E.D.N.Y. Oct. 30, 2008) K.L., 2012 WL 4017822, at *7, *14; C.G. v. New York City Dep’t of Educ., 752 F. Supp. 2d 355, 360 (S.D.N.Y. 2010). In fact, several Courts have held that the IDEA does not require a District, as a matter of course, to design educational programs to address a Student’s difficulties in generalizing skills to other environments outside of the school environment, particularly in cases in which it is determined that the Student is otherwise likely to make progress in the classroom. L.K., 2016 WL 899321, at *8-*10; Thompson R2-J Sch. Dist. v. Luke P., 540 F.3d 1143, 1152-53 (10th Cir. 2008); Gonzalez v. Puerto Rico Dep’t of Educ., 254 F.3d 350, 353 (1st Cir. 2001); Devine v. Indian River County Sch. Bd., 249 F.3d 1289, 1293 (11th Cir. 2001); JSK v. Hendry County Sch. Bd., 941 F.2d 1563, 1573 (11th Cir 1991).
In the aforementioned cases, the Courts denied the parent’s request for home-based services, residential placement and/or reimbursement of services, on the basis that the child was making progress in the classroom but not generalizing the progress outside of school; however, the facts set forth in the instant case are inapposite. Here, the Hearing Record does not reflect that the Student’s at-home SETSS exceeded the requirements of the IDEA, and/or was sought for the sole purpose of generalizing the Student’s skills outside of the school environment. More aptly, the Student’s at-home SETSS was instituted to provide the additional special education services and support she required, in furtherance of increasing her access to academics, which subsequently resulted in some progress both at-home and in-school. Hence, an IEP should not be permitted to deny the Student access to at-home SETSS, particularly where the Hearing Record evinces that the Student started to demonstrate some progress in-school, the continuity of which was subsequent to and partly dependent upon the Provider’s demonstrated ability to address many of the Student’s needs in an environment that factored in her cognitive, executive functioning, distractibility, dysregulation and behavioral challenges.
The Hearing Record demonstrates the manner in which the Provider was able to provide educational support to the Student with at-home SETSS, which contributed to the Student’s ability to receive educational benefits in school during the day. More particularly, the Director testified that the Provider built a good rapport with the Student and helped her to develop routine, structure and maturity, while working towards the attainment of IEP Annual Goals through at-home SETSS; where she learned, inter alia, reasoning, conversational, coping and problem-solving skills; and demonstrated progress academically and behaviorally. In addition, the NPS-Day Teacher testified that the Student had demonstrated big growth, improvement and some academic progress with her work in-class, subsequent to receiving at-home SETSS. The Teacher also opined that the at-home academics [SETSS] or more homework would not frustrate the Student, as she never expressed displeasure at work and tried to be diligent in class. The Provider reported that although the Student continued to display some tantrums and non-complaint behavior, she required substantial support to function and prevent regression; and since receiving at-home SETSS, she had demonstrated some progress in ELA and focusing to complete assignments; and had worked towards improving her peer relationships and social emotional coping skills. Finally, the Parent advised that subsequent to receiving at-home SETSS from the Provider, who successfully utilized behavioral and coping strategies to coax the Student into completing certain academic tasks and assignments, the Student started to demonstrate slow but noticeable improvement in ELA and Science, with less in History and none in Math.
Conversely, however, the Hearing Record does not reflect any documentary or testimonial evidence from the District, which supports a contention that the 2021 IEP could have appropriately addressed the Student’s needs, absent at-home SETSS. More particularly, the District’s witnesses could not sufficiently articulate as to how or why the CSE reached a determination that the Student did not require at-home SETSS, other than to contend that it was not part of the school-based program at NPS-Day, and therefore it could not be added to the 2021 IEP. This notwithstanding, even the School Psychologist acquiesced that any Special Education Teacher, whether in-school or at-home, in conformity with other members comprised of the group effort developed at NPS-Day, can address the Student’s goals, needs and challenges in ELA, Writing, OT, SLT and Counseling, as well as other issues related to her academics, attentional, focusing, redirection, behavioral, studying and organizational skills.
As a result, the Hearing Record does not reflect that the CSE offered the Student an appropriate educational program, which prior to receiving at-home SETSS could have adequately minimized her perseverative and impulsive behaviors, language disorders and attention deficits that interfered with her academic growth and development. This was further evidenced by the absence of evaluative data appertaining to the Student that was not considered by the 2021 CSE Team in advance of developing the 2021 IEP, which also failed to include appropriate recommendations to address her management needs in relation to her Diagnoses. Management needs are defined by State regulations as “the nature of and degree to which environmental modifications and human or material resources are required to enable the student to benefit from instruction” and shall be determined in accordance with the factors identified in the areas of academic achievement, functional performance and learning characteristics, and social and physical development. 8 NYCRR 200.1(ww)(3)(i)(d). Consequently, upon full review and due consideration, it is this Hearing Officer’s finding that the 2021 IEP, which did not include a recommendation for at-home SETSS (5/wk.), failed to offer the requisite interventions and accommodations that were reasonably calculated to enable the Student to receive educational benefits to address her academic, language, executive functioning, social-emotional and behavioral needs/challenges, in relation to her Diagnoses. Accordingly, the Recommended Program set forth in the 2021 IEP substantively denied the Student a FAPE for the 2022/2023 school year. Additionally, it is this Hearing Officer’s determination that within ten (10) business days of the Parents’ presentment of proof evidencing that at-home SETSS were provided to the Student, the District shall remit full payment directly to Agency, New York [Redacted] Services, or any-other duly-credentialed provider of the Parents’ choosing, for the total cost and balance of the at-home SETSS due and outstanding for the Student’s attendance and participation therein; the amount of which shall be adjusted for any payments made in accordance with the Pendency Program Agreement.
D. BURDEN OF PROOF
As a matter of general jurisprudence, the party with the burden of proof has the duty and obligation to prove or disprove a disputed fact; and under the IDEA, the burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief. Schaffer, 546 U.S. 49, 59-62 (finding it improper under the IDEA to assume that every IEP is invalid until the school district demonstrates that it is not). However, under New York State law, during an impartial hearing, the burden of proof has been placed on the school district, who bears the burden of proof, production and persuasion; 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 also, Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 (2d Cir. 2014); C.F.,746 F.3d 68, 76; R.E., 694 F.3d 167, 184-85. More particularly, to determine whether the Parents are entitled to reimbursement of expenses incurred for the unilateral placement of a disabled child in an IDEA challenge to an [IEP], this Hearing Officer is guided by the three-step Burlington/Carter test: (1) first the District must establish that the placement and services offered by the [IEP] were neither inadequate, inappropriate nor denied the Student a FAPE; however, if the District fails to meet that burden, then the Parents are entitled to tuition reimbursement if (2) they establish that the Student’s unilateral placement was appropriate; and (3) that equitable considerations support the Parents’ claim. See, Florence Cty. Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); Sch. Comm. of Town of Burlington v. Dep’t of Educ., 471 U.S. 359 (1985).
The District is required under the due process procedures set forth by New York State law to address its burdens by describing its views, based on a fact-specific inquiry set forth in an evidentiary record. The District is tasked with establishing sufficient facts and introducing proper evidence to demonstrate that recommendations made based on the Student’s educational needs were appropriate. In order to meet its burden, the District must show (a) that it complied with the procedural requirements set forth in the IDEA; and (b) that the IEP developed for the Student is reasonably calculated to confer educational benefits to the Student. Rowley, 458 U.S. 176, 206-07; M.S. v. Bd. of Educ., 231 F.3d 96, 102 (2d Cir. 2000), cert. denied, 532 U.S. 942 (2001). Here however, the Hearing Record is devoid of any persuasive testimonial or documentary evidence presented by the District, which explains why the (i) 2021 CSE Meeting was held without fully evaluating the Student’s needs; (ii) District failed to develop an appropriate IEP; and/or (iii) District failed to sufficiently negate or otherwise refute the facts established in the Hearing Record or relief sought by the Parents. Accordingly, as demonstrated by the findings of fact and conclusions stated herein, it is this Hearing Officer’s determination, as set forth and discussed supra, that the District procedurally and substantively denied the Student a FAPE for the 2022/2023 school year.
E. RECONVENE CSE
When a student in New York is eligible for special education services, the IDEA calls for the creation of an IEP, which is delegated to a local CSE that includes, but is not limited to, Parents, Teachers, a School Psychologist, and a District Representative. Educ. Law § 4402; 20 U.S.C. §1414(d)(1)(A)-(B); 34 CFR 300.320, 300.321; 8 NYCRR 200.3, 200.4(d)(2). In addition to the CSE’s general obligation to review the IEP of the Student with a disability at least annually, Federal and State Regulations require the CSE to revise the Student’s IEP as necessary to address “[i]nformation about the child provided to, or by, the parents” during the course of a reevaluation of the Student. 34 CFR 300.324(b)(1)(ii)(C); 8 NYCRR 200.4(f)(2)(ii). Incorporated therein is a requirement that either an IEE or a private evaluation obtained at private expense “[m]ust be considered by the school district, if it meets the school district’s criteria, in any decision made with respect to the provision of a (FAPE) for the student.” 8 NYCRR 200.5(g)(1)(vi)(a); 34 CFR 300.502(c)(1). State Regulations also provide that if the Parent believes that the Student’s placement is no longer appropriate, they “may refer the student to the [CSE] for review.” 8 NYCRR 200.4(e)(4). Similarly, the IEP may require a revisit and reconsideration if it is suspected that the ten-month period of a recommended program is insufficient to address the needs of a student with disabilities, who may require educational and related services not only during the regular school year, but over the summer as well.
As evidenced supra, the Hearing Record evinces that Reevaluations must be conducted of the Student; subsequent to which, the related reports shall be shared with the Parents and District. Thereafter, unless the Parties mutually agree otherwise, the CSE shall reconvene within fifteen (15) days from the date of receipt of the Report(s)s from either the Reevaluations or IEEs, at a time and location convenient to the Parents and District, to conduct a review and develop an amended IEP, which (i) addresses the Student’s unique needs; (ii) fully considers all evaluative data, opinions and recommendations obtained from the Reevaluations or IEEs; (iii) fully considers any IEEs, additional evaluations or assessments previously conducted or deemed necessary by the District, Parent, Evaluators, Psychologists, Psychiatrists and/or Physicians; (iv) incorporates meaningful and measurable goals, including benchmarks, management needs, and short-term objectives to address the Student’s academic, cognitive, executive functioning, social-emotional and/or behavioral needs and challenges; and (v) provides the Student with an appropriate educational placement, program, related services and supports based thereon, which includes, but shall not be limited to, at-home SETSS (5/wk.).
F. RELIEF SOUGHT FOR ADDITIONAL CLAIMS
As stated supra, in electing not to present appropriate documentary or testimonial evidence sufficient to refute certain allegations raised in the Complaint, the District failed to satisfactorily meet its burden in demonstrating that a FAPE was offered to the Student during the 2022/2023 school year. In response, some might assert that the Parents should axiomatically prevail under Prong I based solely on the District’s absence of adequate evidence in the Hearing Record, which could only be viewed as a request for a default judgment against the District. However, an impartial hearing officer is not automatically required to order any and all relief requested by the Parents, as it has been held that an outright default judgment awarding compensatory education or any relief requested, without question, is a disfavored outcome even in those instances where the District’s conduct in denying the Student a FAPE and [thereafter] in failing to actively participate in the impartial hearing process is, viewed by some, as egregious. Branham v. Govt. of the Dist. of Columbia, 427 F.3d 7, 11-12 (D.C. Cir. 2005); G.M. v. Dry Creek Joint Elementary Sch. Dist., 595 F. App’x 698, 699 (9th Cir. 2014); Jalloh v. Dist. of Columbia, 535 F. Supp. 2d 13, 19-20 (D.D.C. 2008); Sykes v. Dist. of Columbia, 518 F. Supp. 2d 261, 267 (D.D.C. 2007).
As such, notwithstanding whether the relief sought relates to an alleged denial of FAPE, tuition funding or a compensatory award, the IDEA requires each IHO to reach a determination founded on substantive grounds based on the contents of the hearing record. Accordingly, this Hearing Officer can neither render a declaratory nor default judgement on the basis of insufficient factual evidence in the Hearing Record. More particularly, an IHO is not vested with “the inherent power to make up remedies out of whole cloth”. S. Kingstown Sch. Comm. v. Joanna S., 2014 WL 197859, at *9 n.9 (D.R.I. Jan. 14, 2014), aff’d, 773 F.3d 344 (1st Cir. 2014). State regulations provide in relevant part that “[t]he decision of the [IHO] shall set forth the reasons and the factual basis for the determination. . . [and] shall reference the hearing record to support the findings of fact.” 8 NYCRR 200.5(j)(5)(v). Additionally noting that neither IHOs nor State Review Officers (“SROs”) have authority to enforce prior decisions rendered by administrative hearing officers, much less to enforce decisions of the courts. Educ. Law §§ 440([1)(a); (2); see e.g., A.R. v. New York City Dep’t of Educ., 407 F.3d 65, 76, 78 n.13 (2d Cir. 2005) (specifically, IHOs do not retain jurisdiction to enforce even their orders, and that a party who receives a favorable administrative determination may seek enforcement in court); A.T. v. New York State Educ. Dep’t, 1998 WL 765371, at *7, *9-*10 & n.16 (E.D.N.Y. Aug. 4, 1998). The scope of the Hearing must be strictly limited to the issues asserted within the four corners of the Complaint. 8 N.Y.C.R.R. § 200.5 (j)(l)(ii); 20 U.S.C. § 1415(F)(3)(b); B.P., 841 F. Supp. 2d 605, 611; R.C. ex rel. M.C. v. Byram Hills School Dist., No. 11 Civ. 3938, 2012 WL 5862736, p. 11 (S.D.N.Y. Nov. 2012). Further, the Courts have traditionally distinguished between systemic violations that should be addressed by the Federal Courts, as opposed to “technical questions of how to define and treat individual students’ learning disabilities, which are best addressed by administrators”. Levine v. Greece Cent. Sch. Dist., 2009 WL 261470, at *9 (W.D.N.Y. 2009), aff'd, 353 Fed. App’x 461 (2d Cir. Nov. 12, 2009); Dean v. Sch. Dist. of City of Niagara Falls, 615 F. Supp. 2d 63, 70 (W.D.N.Y. 2009).
Here, certain issues for adjudication were provided in advance of the Hearing; set forth in the Statement of Issues to be Adjudicated; addressed by the witnesses during the Hearing; delineated in the Parties’ Closing Brief(s); and now decided herein by this Hearing Officer. Remaining however, are certain bare allegations or claims presented in the Complaint and/or raised for the first time during the Hearing or in the Closing Brief(s), which do not have adequate factual evidence in the Hearing Record that would fully satisfy the factual basis required to render a determination and/or otherwise support a finding that the Student was either denied a FAPE or her rights violated, as a result of the District’s alleged (in)actions during the 2022/2023 school year. Consequently, due to the absence of sufficient testimonial or documentary evidence supported by the Hearing Record in relation to the aforementioned issues/claims, further consideration by this Hearing Officer cannot be undertaken; and accordingly, the Parents’ request for relief of any remaining issues or claims, which have not been specifically addressed herein, must be Denied.
ORDER
WHEREFORE IT APPEARING that the Hearing Record adequately demonstrates that after full consideration of the testimonial and documentary evidence presented, together with the applicable Federal and State Regulations, and the Conclusions of Law, this Hearing Officer has determined inter alia, that during the 2022/2023 school year, the (i) District failed to conduct or consider sufficient evaluative data in advance of developing the 2021 IEP; (ii) District failed to recommend an appropriate program; (iii) District failed to meet its statutory burden of proof, production and persuasion relating to the alleged denial(s) of FAPE; and (iv) equitable considerations favor the District’s funding for the Student’s at-home SETSS, evaluations; and a subsequent reconvene of the CSE.
IT IS HEREBY ORDERED that the District’s cumulative procedural and substantive violations under the IDEA, denied the Student a FAPE during the 2022/2023 school year; and
IT IS HEREBY FURTHER ORDERED that the Parents’ placement of the Student in the at-home SETSS program during the 2022/2023 school years was appropriate under the IDEA, and equitable considerations favor the District’s funding of the full cost of the Student’s attendance thereat; and
IT IS HEREBY FURTHER ORDERED that within ten (10) business days of the Parents’ presentment of proof evidencing at-home SETSS were provided to the Student, the District shall remit full payment directly to the Agency, New York [Redacted] Services, or any-other duly-credentialed provider of the Parents’ choosing, for the total cost and balance of the at-home SETSS due and outstanding for the Student’s attendance and participation therein; the amount of which shall be adjusted for any payments made in accordance with the Pendency Program Agreement; and
IT IS HEREBY FURTHER ORDERED that within thirty (30) days of this Decision, the District shall conduct full Reevaluations of the Student (as that term is defined, supra), which shall include, but not be limited to, Psychoeducational Evaluation of the Student, SLT Evaluation of the Student, and Classroom Observation of the Student; and
IT IS HEREBY FURTHER ORDERED that within ten (10) days of receiving reports from the Reevaluations, the District shall provide a full copy of each report to the Parents; and
IT IS HEREBY FURTHER ORDERED that if the District fails to timely conduct the aforementioned Reevaluations of the Student, within thirty (30) days of this Decision, then the District shall fully-fund and provide, at public-expense, independent educational evaluations of the Student, which shall include, but not be limited to, a Psychoeducational Evaluation, SLT Evaluation and Classroom Observation; and
IT IS HEREBY FURTHER ORDERED that within ten (10) days of receiving reports from the IEEs, the Parents shall provide a full copy of each report to the District; and
IT IS HEREBY FURTHER ORDERED that unless the Parties mutually agree otherwise, the CSE shall reconvene within fifteen (15) days from the date of receipt of the Report(s)s from either the Reevaluations or IEEs, at a time and location convenient to the Parents and District, to conduct a review and develop an amended IEP, which (i) addresses the Student’s unique needs; (ii) fully considers all evaluative data, opinions and recommendations obtained from the Reevaluations or IEEs; (iii) fully considers any IEEs, additional evaluations or assessments previously conducted or deemed necessary by the District, Parent, Evaluators, Psychologists, Psychiatrists and/or Physicians; (iv) incorporates meaningful and measurable goals, including benchmarks, management needs, and short-term objectives to address the Student’s academic, cognitive, executive functioning, social-emotional and/or behavioral needs and challenges; and (v) provides the Student with an appropriate educational placement, program, related services and supports based thereon, which includes, but shall not be limited to, at-home SETSS (5/wk.); and
IT IS HEREBY FURTHER ORDERED that the Parents’ request for any additional claims asserted or relief sought in the Complaint, for which no supporting testimonial or documentary evidence was provided during the Hearing or otherwise supported by the Hearing Record, is hereby Denied; and
IT IS HEREBY FURTHER ORDERED that the Parents’ request for any claims asserted or relief sought, which were raised subsequent to filing the Complaint and/or raised for the first during the Hearing or in the Closing Brief, is hereby Denied; and
IT IS HEREBY FURTHER ORDERED that the Parents’ request for any relief sought or claims asserted, which were withdrawn prior, during or subsequent to the Hearing, is hereby Denied; and
IT IS HEREBY FURTHER ORDERED that the Parents’ request for any relief sought that is not within the jurisdictional ambit or authority of this Hearing Officer, is not properly seated before me, and is hereby Denied; and
IT IS HEREBY FURTHER ORDERED that any remaining issue, claim or contention not expressly addressed in this Decision, is hereby Denied.
IT IS SO ORDERED.
Dated: March 25, 2024
_/s/ Patricia L. Murrell______________,
Impartial Hearing Officer, Patricia L. Murrell
IHO.PatriciaMurrell@gmail.com
Copies to: All Parties
NOTICE OF RIGHT TO APPEAL
Within forty (40) days of the date of this Decision, the Parent and/or the 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 twenty-five (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 forty (40) days from the date of the decision sought to be reviewed. An appealing party shall file the (i) notice of intention to seek review, (ii) notice of request for review, (iii) request for review, and (iv) proof of service with the Office of State Review of the New York State Education Department within two (2) 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.
PARENTS’ EXHIBIT(S)
| Ex. | Description | Date(s) | No. Page(s) |
|---|---|---|---|
| A. | Impartial Hearing Request | July 1, 2022 | 4 |
| B. | FOFD – Case No. 191805 | May 5, 2021 | 11 |
| C. | Order of Pendency (2021/2022) | December 15, 2021 | 3 |
| D. | Individualized Education Plan | December 22, 2021 | 32 |
| E. | Pendency Implementation Form | August 10, 2022 | 2 |
| F. | Prior Written Notice | December 23, 2021 | 4 |
| G. | Agency – Affidavit and Certification of Services | September 7, 2022 | 1 |
| H. | Teacher Certification of Provider | Undated | 1 |
| I. | Agency – Student Progress Report | September 6, 2022 | 1 |
| J. | NPS – Summer School Report Card | August 2022 | 1 |
| K. | NPS – Quarterly Progress Report and RC | 2021/2022 | 7 |
| L. | Behavior Intervention Plan | January 4, 2021 | 8 |
| M. | Neuropsychological Evaluation | October 8, 2018 | 21 |
Total Parent Exhibit(s): 97
DISTRICT’S EXHIBIT(S)
| Ex. | Description | Date(s) | No. Page(s) |
|---|---|---|---|
| 1. | Individualized Education Plan | December 22, 2021 | 32 |
| 2. | IEP Attendance Page | December 22, 2021 | 1 |
| 3. | IEP - Conference Minutes | December 22, 2021 | 3 |
| 4. | NPS – Progress Report | December 2021 | 5 |
| 5. | Behavior Intervention Plan | December 7, 2021 | 8 |
| 6. | Functional Behavioral Assessment | December 7, 2021 | 8 |
| 7. | NPS – Individual Verbal Therapy Summary | December 13, 2021 | 2 |
| 8. | NPS – Psychosocial Summary Update | December 13, 2021 | 2 |
| 9. | NPS – Group Verbal Therapy Summary | November 17, 2021 | 1 |
| 10. | NPS – Individual/Group SLT Progress Report | December 2021 | 3 |
| 11. | Prior Written Notice | December 23, 2021 | 4 |
Total District Exhibit(s): 70
HEARING OFFICER EXHIBIT(S)
| Ex. | Description | Date(s) | No. Page(s) |
|---|---|---|---|
| IHO-1 | Joint Statement of Facts | September 8, 2022 | 2 |
| IHO-2 | Statement of Issues to be Adjudicated | September 9, 2022 | 2 |
| IHO-3 | Confirmation of Issuance – PWN and IEP | December 23, 2022 | 3 |
| IHO-4 | District’s Post-Hearing/Closing Brief | November 7, 2022 | 3 |
| IHO-5 | Parents’ Post-Hearing/Closing Brief | November 7, 2022 | 17 |
Total IHO Exhibit(s): 37
TRANSCRIPT(S)
| Description | Date(s) | No. Page(s) | |
|---|---|---|---|
| Prehearing Conference | August 10, 2022 | 30 | |
| Due Process Hearing – Day One | September 14, 2022 | 162 | |
| Due Process Hearing – Day Two | September 15, 2022 | 187 | |
| Due Process Hearing – Day Three | October 6, 2022 | 46 |
Total Transcript Page(s): 425
Total Document Pages(s): 629
Footnotes
[1] The Hearing Record cited to in these Findings of Fact and Decision (hereinafter, the “Decision”) includes and references documents, which are designated as follows: to the Transcript, “Tr.” followed by the respective page/line number(s); to the Exhibits, as designated by the Parents’ Disclosure/Exhibit List, which are identified alphabetically: (A through M); the District’s Disclosure/Exhibit List, which are identified numerically: (1 through 11); and “IHO” for the Impartial Hearing Officer Exhibits, (IHO-1 through IHO-5); and, as to any other document(s) included in the Hearing Record not specifically assigned an exhibit number, each of which will be identified by the respective document name and relevant page numbers, therein.
[2] See, E-1; E-2.
[3] See, IHO-1 – Joint Statement of Facts.
[4] See, IHO-2 – Statement of Issues to be Adjudicated.
[5] See, IHO-4 – District’s Post-Hearing/Closing Brief.
[6] See, IHO-5 – Parents’ Post-Hearing/Closing Brief.
[7] N.B.: Certain aspects of paragraphs one-through-four (¶¶ 1-4) herein are based on the Joint Statement of Facts.
[8] See, M-1.
[9] See, M-4; M-5.
[10] See, M-1; through M-21.
[11] See, L-1; through L-8.
[12] See, 6-1; through 6-8.
[13] See, 5-1; through 5-8.
[14] See, C-1; through C-3; see also, B-1; through B-11.
[15] See, 7-1; 7-2.
[16] See, 8-1; 8-2.
[17] See, 4-1; through 4-5.
[18] See, 10-1; through 10-3.
[19] See, 1-1; 1-32; 2-1; see also, D-1; D-32.
[20] See, 1-1; through 1-6; 1-31; see also, D-1; through D-6; D-31; see also, Tr. 160:3-25; Tr. 161:1-13.
[21] See, 1-7; 1-8; see also, D-7; D-8.
[22] See, 1-23; through 1-31; see also, D-23; through D-31.
[23] See, 3-1; through 3-3.
[24] See, 11-1; through 11-3; see also, IHO-3.
[25] See, K-1.
[26] See, J-1.
[27] See, I-1.
[28] See, G-1; see also, H-1; see also, Tr. 308:19-25; Tr. 3019:1-6.
[29] See, Tr. 84:22-25; through and including, Tr. 98:1-15.
[30] See, Tr. 98:16-25; through and including, Tr. 103:1-7.
[31] See, Tr. 106:3-25; through and including, Tr. 113:1-9.
[32] See, Tr. 116:5-25; through and including, Tr. 122:1-15; see also, Tr. 140:25; through and including, Tr. 152:1-15.
[33] See, Tr. 179:14-25; through and including , Tr. 196:1-8; see also, Tr. 229:15-25; through and including, Tr. 232:1-12.
[34] See, Tr. 206:25; through and including, Tr. 222:1-10.
[35] See, Tr. 250:11-25; through and including, Tr. 253:1-25; see also, Tr. 263:9-25.
[36] See, Tr. 254:11-25; through and including, Tr. 253:1-16.
[37] See, Tr. 265:16-25; through and including, Tr. 269:1-15.
[38] See, Tr. 269:16-25; through and including, Tr. 280:1-6.
[39] See, Tr. 308:2-25; through and including, Tr. 317:1-5.
[40] See, Tr. 317:21-25; through and including, Tr. 321:1-19.