New York City Department of Education, Impartial Hearing Decision

AMENDED FINDINGS OF FACT AND DECISION

Case Number: 228674

Student’s Name: [REDACTED]

School District: N.Y.C. Dept. of Ed., Impartial Hearing Officer: Teril Holston, Esq. Date of Filing: July 6, 2022 Hearing Requested by: Parent Date of Hearing: September 8, 2022

Record Close Date: October 7, 2022

Date of Decision: October 20, 2022

NAMES AND TITLES OF PERSONS WHO APPEARED September 8, 2022

For the Student:

[REDACTED]

Parent: [REDACTED]

For the Department of Education:

[REDACTED], District Representative

Parent Witnesses:

[REDACTED] [REDACTED]

INTRODUCTION

This matter comes before the undersigned Hearing Officer at the request of Petitioner, the parent of the student, a [REDACTED]-year-old school student classified as a student with a disability under the Individuals with Disabilities Education Act (“IDEA”); New York State Education Law; and the New York State regulations.

On July 6, 2022, Petitioner filed a Due Process Compliant (“Complaint” or “DPC”) against the New York City Department of Education (“NYC DOE” or “DOE” or “District”) alleging that the District failed to provide the student with a Free and Appropriate Public Education (“FAPE”) for the 2022-2023 school year, in that the IEP program was not reasonably calculated to confer an educational benefit, and the placement was untimely and inappropriate (P-A)1. The Petitioner is seeking tuition reimbursement/ direct payment for their unilateral placement of the student at Private School, private programs not approved by the Commissioner of Education for the education of students with disabilities for the 2022-2023 school year, independent evaluations, 1:1 nursing services, and transportation (Id.). Furthermore, the parent alleges that the equities support their claim for tuition reimbursement for the school year at issue (Id.).

In light of the foregoing and as more fully discussed below, I find that a) the DOE failed to meet its burden that it offered the student FAPE for the 2022-2023 school year, b) the Private School offers the student with specially designed instruction sufficient to meet student’s needs,

• • the parent is entitled to independent evaluations of the student, e) the parent is entitled 1:1 nursing services and c) the equities support the Parent’s.

PROCEDURAL HISTORY

On July 27, 2022, the undersigned was appointed to conduct an impartial hearing. The parties held a prehearing conference on August 8, 2022.

On September 8, 2022, the virtual impartial hearing on the merits of the DPC commenced and concluded. The record closed on October 7, 2022.

At the hearing, the District’s representative presented documents (Ex. 1- 6) but did not call any witnesses. The documents were admitted into evidence without objection. The District waived an opening statement and rested on the documents.

1 Exhibits shall be referred to as follows: “P” for Parent Exhibit; “D” for the District’s or Department’s Exhibits; and “IHO” for the Impartial Hearing Officer’s exhibits.

The Parent, through their representative, submitted to documents (Ex. P-A though P-N),2 including the affidavit testimony of the parent and the Private School Director, in support of the Parent’s case. All of the documents were admitted into evidence without objection from the District. The Parent rested and the DOE advised that it had no further statement to make or testimony or documents to offer.

Parent’s representative made a detailed closing statement reiterating the relief sought, summarizing the DOE’s failures, including the specific examples supporting the assertions, and linking it to the evidence on record.

FINDINGS OF FACT

After a full review of the record generated at hearing, I make the following findings of fact and determinations3:

The student is a [REDACTED]-year-old classified by the CSE as a student with a Traumatic Brain Injury (DOE-1). The student is diagnosed with cerebral palsy, epilepsy, and is nonverbal and non-ambulatory (P-M). The student also suffers from [REDACTED] and [REDACTED] requiring eyeglasses (P-F). Given his global development delays, vision impairment, the student is fully dependent on adult assistance in all ADL (P-F).

The student has been attending Private School since the 2019-2020 school year, where he is placed in a 8:1:1 classroom and has a 1:1 nurse, a 1:1 paraprofessional (P-M).

On March 2, 2022, the Private School composed a comprehensive report and educational plan for the student, with recommendations and measurable goals (P-F). The student benefits from peers who are similarly situated (P-F). The student requires assistance dressing and wears a diaper throughout the school day. The student has been improving and learning to feed himself with a spoon but requires significant assistance feeding himself (Id.). The student requires constant breaks and when distracted can require up to 5 minutes of prompting before being able to re-engage (Id.). In addition to the assistance provided by the paraprofessional, the student also needs the paraprofessional to position his AT device so that he may use it because he doesn’t not have the appropriate mount (Id.).

2 A more detailed list of exhibits is attached.

3 Although only portions of the evidence are referenced herein, the testimony and documents were reviewed and considered, in full.

Based on the student’s needs, the Private School recommended the student receive a 1:1 nurse, 1:1 paraprofessional, individual speech therapy 4 times per week, group speech therapy 1 time per week, individual physical therapy 5 times per week, vision services 3 times per week, individual hearing services 2 times per week, group hearing services 1 time per week, AT services 1 time per week, individual OT 4 times per week, group OT 1 time per week, and monthly parent counseling and training (P-F; P-N). The student also receives individual music therapy 1 time per week and group music therapy one time per week (P-N).

An IEP meeting was convened on March 2, 2022 (DOE-1; DOE-2). The IEP classified the student with a traumatic brain injury and recommended an 8:1+1 class ratio in a District 75 Specialized School for an extended school year with occupational therapy 5x30:1, physical therapy 5x60:1, speech-language therapy 4x60:1, speech-language therapy 1x60:3, AT Services 1x60:1, the use of an AT device, and a fulltime health paraprofessional (DOE-1.). The IEP also recommends a 1:1 transportation nurse, in addition to specialized transportation services (Id.).

The parent expressed disagreement during the IEP meeting with the lack of nursing, music education and hearing services and vision (P-H). The District recommended Public School 1 (P-H).

On May 23 2022, the parent visited Public School 1 and learned that none of the students use wheelchairs, the related services are provided in 30-45 minute sessions, there was only one nurse shared with another building, and the school did not provide hearing services, among other things (P-K).

The parent signed a contract with Private School for the 2022-2023 academic school year on June 14, 2022 at the base cost of $175,000 (P-I). The parents also contracted with Transportation Company on June 16, 2022 at the rate 345 per round trip (P-J). The parent notified the District on June 17, 2022 that they were rejecting the IEP and declining the placement and will continue the unilateral placement until an appropriate placement is found (P- K.). The District provided the parent with another school location letter on or about June 21, 2022 (DOE-4).

On July 8, 2022, the District acknowledged receipt of the TDN and informed the parent that the District would not be resolving the issue (P-L).

APPLICABLE LEGAL STANDARD

The Individuals with Disability Education Act (“IDEA”) establishes that students with disabilities are entitled to a free and appropriate education (“FAPE”).^[4] A “free appropriate public education consists of educational instruction that is designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child to benefit from the instruction.”5 In order to demonstrate that a FAPE is being provided, the school district must show “that it complied with the procedural requirements set forth in the IDEA, and that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits.”6 The student's recommended program must also be provided in the least restrictive environment with non-disabled peers.7 The parent seeks tuition reimbursement for the unilateral placement of the student in Private School for the 2022-2023 school year and the cost of related services. As set forth in Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); Sch. Comm. Of Burlington v. Dep’t of Educ., 471 U.S. 359 (1985) it is well established that a District may be required to reimburse parents for tuition payment to a private school if the services offered by the District were inadequate or inappropriate, the services selected by the parents were appropriate under the IDEA, and equitable considerations support the parent’s claim for reimbursement. Thus, consideration of such a claim has been expressed by a three-prong test: (1) was student denied FAPE; (2) the appropriateness of the Parent’s unilateral placement; and (3) a balancing of the equities.

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE8. A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction."9 “To meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”10 Further, “an IEP is not a form document” and it should be constructed after carefully evaluating the student.11

4 See, 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 US 49 (2005).

5 Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 188 (1982).

6 See, Application of Child with a Disability, Appeal No. 05-061, quoting, Rowley at 206.

7 See, Walczak v. Florida Union Free Sch. Dt., 142 F.3rd 119 (2nd Cir. 1998).

8 20 U.S.C. § 1415[f][3][E][i].

9 Rowley, 458 U.S. at 203.

10 Endrew F. v. Douglas Cnty. Sch. Dist. RE-1, 137 S. Ct. 988, 999

11 Id.

An appropriate program begins with an IEP which accurately reflects the results of the 1) student’s present levels of performance; 2) provides for the use of appropriate special education services to address the child's special education needs; 3) establishes annual goals which are related to the child's educational deficits; 4) identifies transitions services; 5) provides a start and end date to the recommended program and services; and 6) criteria and evaluation procedures for the measurement of goals.12

Special education services must be provided by the district in conformity with the student's IEP.13 A denial of a FAPE occurs if the district deviates from substantial or significant provisions of the student's IEP in a material way and thereby precludes the student from the opportunity to receive educational benefits.14

However, school districts are not required to "maximize" the potential of students with disabilities15, but must provide "an IEP that is 'likely to produce progress, not regression,' and... affords the student with an opportunity greater than mere 'trivial advancement'"16. The IEP must be "reasonably calculated to provide some 'meaningful' benefit"17.

The burden of persuasion and proof is by the preponderance of the evidence standard, which requires a finding that the existence of a fact is more probable than not. When the evidence is evenly balanced, the party with the burden loses. The burden of proof at an impartial hearing is on the district, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement18. Accordingly, the burden of production and persuasion is on the District for the first and third prongs and on the Parent for the second prong.

DISCUSSION

• • Prong I: FAPE 12 See, Walzczak, supra; Id., Appeal No. 00-005.

13 20 U.S.C. § 1401[9][D]; 34 CFR 300.17[d]; 20 U.S.C. § 1414[d]; 34 CFR 300.320.

14 T.L. v. New York City Dep't of Educ., 2012 WL 1107652, *14 [E.D.N.Y. Mar. 30, 2012]; D.D-S. v. Southold Union Free Sch. Dist., 2011 WL 3919040, at *13 [E.D.N.Y. Sept. 2, 2011]; A.L. v. New York City Dep't of Educ., 812 F. Supp. 2d 492, 503 [S.D.N.Y. 2011]; A.P. v. Woodstock Bd. of Educ., 370 Fed. App'x 202, 205, 2010 WL 1049297 [2d Cir. Mar. 23, 2010]; Van Duyn v. Baker Sch. Dist. 5J, 502 F.3d 811, 821-22 [9th Cir. 2007]; Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 [5th Cir. 2000].

15 Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998], at 132.

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

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

18 Educ. Law § 4404[1][c]; see R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 [2d Cir. 2012].

It is asserted in the DPC that the DOE failed to provide the student with a FAPE for the 2022-2023 school year for a number of reasons. As to Prong I of the Burlington/Carter standard, the DOE failed to meet its burden. While the District submitted the revised March 2022 IEP (DOE-1), March 2022 IEP (DOE-2), Prior written notice (DOE-3), Prior Written Notice-School Location Letter (DOE-4), Psychoeducational Evaluation (DOE-5), and Social History Update (DOE-6) into the record, a review of same offers no explanation as to how the CSE made its recommendation, how the IEP appropriately describes the Student, whether the IEP is meaningfully calculated to confer educational benefit, or whether the school identified by the District met the student’s needs. Per the hearing record, the parent expressed disagreement with the CSE during the IEP meeting and was informed that the District did not have enough information to recommend the services that the parent requested, yet the record does not indicate the District conducted any additional evaluations. In short, the District declined to “offer a cogent and responsive explanation for their decisions” in creating that IEP, and it is “through the IEP that “[t]he ‘free appropriate public education’ required by the Act is tailored to the unique needs of” a particular child”. Endrew F., 137 S.Ct. at 1002. The District failed to provide any defense of the program recommended for the student. Therefore, the undersigned is constrained to find that the District failed to offer the student a FAPE for the 2022-2023 school year.

• • Unilateral Placement In this case, as the District did not offer the student a FAPE for the 2022-2023 school year, the next issue to determine is whether the Parent’s unilateral placement of the student at Private School was appropriate. The Parent argues that the Private School is an appropriate unilateral placement for the student as it provides instruction and services that are specifically designed to meet the student’s unique needs and that enable the student to make meaningful progress there. For the reasons below, the Parent’s unilateral placement was appropriate.

Parents need not show that the placement provides every special service necessary to maximize the student's potential.19 When determining whether the parents' unilateral placement is appropriate, that placement must be “reasonably calculated to enable the child to receive

19. Frank G. v Bd. of Educ., 459 F.3d 356, 364-65 (2d Cir. 2006) educational benefits.”20 A private placement is only appropriate if it provides education instruction specially designed to meet the unique needs of a student.21

A private school placement must be “proper under the Act”22, i.e., the private school must provide an educational program which meets the student's special education needs.23 A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement.24 The private school need not employ certified special education teachers or have its own IEP for the student.25 The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement:

“Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child’s individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child’s potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.”26

Moreover, where the failed to provide the student with a FAPE, the District is precluded from arguing that the testing, evaluations, or assessments introduced by the Parent’s and utilized by the unilateral placement are not sufficiently comprehensive evaluations of the student’s functioning levels and needs, as it is the District that retains the requirement to comprehensively evaluate the student.27

20 Id.; see Gagliardo, 489 F.3d at 115.

21 20 U.S.C. § 1401[29]; 34 CFR 300.39[a][1]; Educ. Law § 4401[1]; 8 NYCRR 200.1[ww]; Rowley, 458 U.S. at

188-89.

22 Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370

23 See, Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129.

24 Carter, 510 U.S. at 14

25 Id.

26 Gagliardi, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65.

27 see 34 CFR 300.305[c]; 8 NYCRR 200.4[b][5][iii]; A.D. v. Bd. of Educ., 690 F. Supp. 2d 193, 208 [S.D.N.Y. 2010] [finding that a unilateral placement was appropriate even where the private school reports were alleged by the district to be incomplete or inaccurate and finding that the fault for such inaccuracy or incomplete assessment of the student's needs lies with the district]; see also Application of the Dep't of Educ., Appeal No. 21-194; Application of

• • Student Needs In this case, the Parent submitted an extensive report composed by the Private School professionals detailing the student’s needs, as detailed above. This student needs constant 1:1 adult supervision and assistance in all daily tasks. In addition, to 1:1 paraprofessional, the student also requires 1:1 nurse to constantly monitor him for possible seizure activity. The District presumably agreed that the student requires a small program with several hours of related services in 60 minute increments, in that the IEP recommends nearly all of the instruction and services provided by the Private School. The student’s diagnoses directly impair his learning ability, as noted in the psychological evaluation and in the testimony of the psychologist.
• • Program The Private School is a private, not-for-profit, and highly specialized special education program in created for children who suffer from acquired brain injuries or brain-based disabilities; offering a 12-month extended school-year calendar and offers all services during its extended school day, which runs from 8:30 a.m. to 5:00 p.m. Many of the students at are non-verbal and non-ambulatory, requiring a 1:1 paraprofessional to assist with activities of daily living and to have access to and benefit from the educational program (Id.). The Private School provides its students with IEPs, geared toward improving functioning skills appropriate to their cognitive, physical, and developmental levels, through a collaborative and multi-disciplinary approach which incorporates the best practices from the medical, clinical, and educational fields. the Private School offers its students a wide variety of related therapy services, including occupational therapy, physical therapy, speech therapy, vision education, assistive technology services, parent counseling and training, and hearing services in 60 minute periods.
• • Progress With respect to the student’s progress at Private School, a finding of progress is not required for a determination that a student's unilateral placement is adequate, but it is a relevant the Dep't of Educ., Appeal No. 20-131; Application of the Dep't of Educ., Appeal No. 18-125; Application of a Student with a Disability, Appeal No. 180-049; Application of a Student with a Disability, Appeal No. 15-076; Application of a Student Suspected of Having a Disability, Appeal No. 15-038; 17 Application of a Student with a Disability, Appeal No. 14-033; Application of a Student with a Disability, Appeal No. 14-028; Application of a Student Suspected of Having a Disability, Appeal No. 14-003; Application of the Dep't of Educ., Appeal No. 13- 198; Application of the Dep't of Educ., Appeal No. 13-072; Application of a Student with a Disability, Appeal No. 12-027 factor to be considered.28 However, here the comprehensive Private School IEP details the progress student has made at the Private School in his daily functioning. Since attending the Private School, the student has increased his ability to use sign language, he can identify colors and letters, and he is able to use his AT device (P-M).

Based on all of the above, the parent has met the burden that the Private School is an appropriate placement for the student for the 2022-2023 school year as required.

The weight of the evidence demonstrates that the student’s individual special education needs were addressed by the private school and that the instruction offered was "reasonably calculated to enable the child to receive educational benefits."29 Of note, the District offered no valid arguments concerning the appropriateness of Parent’s unilateral placement, nor challenged the equities in this action. Further, the District had the opportunity to cross-examine the Parent’s witnesses and did not object to any evidence entered into the record. Under these circumstances, I find that the Parent’s witnesses and documentary evidence are credible.

• • Equitable Considerations Equitable considerations are relevant in determining relief “because the authority to grant reimbursement [under the IDEA] is discretionary.”30 “With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412 [a][10][C][iii]; 34 CFR 300.148[d]; E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014] [identifying factors relevant to equitable considerations, including whether the withdrawal of the student from public school was justified, whether the parent provided adequate notice, whether the amount of the private school tuition was reasonable, possible scholarships or other financial aid from the private school, and any fraud or collusion on the part of the parent or private school]; C.L., 744 F.3d at 840 [noting that "[i]important to the equitable consideration is whether the parents obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA"]).

28 Gagliardo, 489 F.3d at 115, citing Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21, 26-27 (1st Cir. 2002)

29 Frank G., 459 F.3d at 364.

30 Frank G., 459 F.3d at 363-64 (quoting, Burlington, 471 U.S. at 374).

Reimbursement may also be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to their removal of the student from public school, or by written notice 10 business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense."31 This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools."32 Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision.33 Parents of students enrolled in private school are not exempted from 10-day notice requirements.34 The Second Circuit has recently reiterated that "[t]he ten-day notice requirement gives school districts an opportunity to discuss with parents their objections to the IEP and to offer changes to the IEP designed to address those objections—all before the parents enroll their child in a private school and file a due process complaint" and that "if parents unreasonably reject the school district's proposed changes to the IEP, or are otherwise uncooperative, courts and hearing officers are fully empowered to deny them reimbursement"35

However, the hearing officer must excuse the failure to provide timely notice if, in her discretion, she determines that the reason for the lack of timely notice is that the school district prevented the parents from providing the notice, the parents had not received the procedural safeguards notice advising of the requirement to provide notice, or compliance with the notice requirement would likely result in physical harm to the student.36 In the instant case, the parent provided the necessary Ten-Days’ Notice of their concerns with the District’s offer of a FAPE for the student for the 2022-2023 school year on June 17, 2022, after expressing her concerns during the IEP meeting and visiting Public School 1 (P-H; P-

31 20 U.S.C. § 14129(a)(10)(C)(iii)(I); see 34 CFR 300.148(d)(1)

32 Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 (1st Cir. 2004).

33 Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 (1st Cir. 2004); Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 (6th Cir. 2003); Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 (1st Cir.

2002); see Frank G., 459 F.3d at 376; Voluntown, 226 F.3d at 68).

34 S.W. v New York City Dep't of Educ., 646 F. Supp. 2d 346, 361-63 (S.D.N.Y. 2009).

35 Bd. of Educ. of Yorktown Cent. Sch. Dist. v C.S., 990 F.3d 152, 171 (2d Cir. 2021).

36 See 20 U.S.C. § 1412(a)(10)(C)(iv); 34 C.F.R. § 300.148(e)(1)

K; P-M). Therein, the parent detailed her specific concerns with the recommendations and provide notice of their intention to unilaterally place the student (Id.). The District did not respond until after the parent filed the instant DPC (P-A; P-L).

By way of relief, Parent seeks direct funding to the Private School. The record establishes that Parent incurred an obligation to pay the Private School and specialized transportation (P-I; P-J).

Direct tuition funding is relief encompassed by the equitable remedial powers inherent in IDEA. See e.g. Mr. and Mrs. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 406 (S.D.N.Y. 2011) (parents may seek direct funding in the instance in which, “due to a lack of financial resources, [parents of a student with a disability] have not made tuition payments but are legally obligated to do so”). I find that the unilateral tuition costs exceed the Parent’s ability to fund and await reimbursement, and the Parent filed a DPC. Equity demands that the DOE fund Student’s Private School tuition in this instance.

In balancing the equities, I find in favor of the Parent. To the extent possible, the Parent has participated in all aspects of the special education process. I find no issue with the reasonableness of the costs, including tuition, associated with the Private School and the Student is enrolled for the 2022-2023 school year.

CONCLUSION

Based on a review of the record and the findings mentioned above, the undersigned makes the following findings:

• • The District failed to provide the student with a FAPE during the 2022-2023 school year.
• • The parent’s unilateral placement at Private School was appropriate and equitable considerations support an award of full tuition reimbursement and direct funding for the 2020-2023 school year.
• • The student is entitled to 1:1 nursing during the extended school day.
• • The Student is entitled to specialized transportation to and from school, including 1:1 transportation nurse, air conditioning, and a lift bus.
• • The student is entitled to an independent Assistive technology evaluation, music therapy evaluation, vision services evaluation, and hearing education evaluation.
• • The student is entitled to his AT device and all appropriate accessories and mounts.
• • The undersigned has reviewed the parent’s remaining contentions and find them to be either unnecessary to this decision, without merit, beyond my jurisdiction, too vague to be of use, or without sufficient basis in the record for a finding and award of relief. Accordingly, any relief not specifically discussed in this decision is denied, and all the Parent’s remaining claims not discussed herein are dismissed with prejudice.

ORDER

IT IS HEREBY, ORDERED, that the New York City Department of Education shall directly pay Private School the balance for all tuition and fees for the student’s unilateral placement at Private School for the 2022-2023 school year in amount not to exceed $175,000 within 25 calendar days of this Order. For the purposes of this Order, I find the evidence submitted in Petitioner’s Exhibit I to be adequate proof of balance owed entitling Petitioner to immediate reimbursement. Furthermore, I find that the District has already been provided with adequate proof via this proceeding and so the District shall directly pay the Private School within 25 calendar days from the date of this decision without any action on the part of Petitioner.

IT IS HEREBY, ORDERED, that the New York City Department of Education shall directly pay Private School for all costs and fees for the student’s related services at Private School for the 2022-2023 school year in amount not to exceed $123,984, within 25 calendar days of the submission of copies of invoices for such services.

IT IS HEREBY, ORDERED, that the New York City Department of Education shall directly pay Private School for all costs and fees for the student’s 1:1 nursing service.

IT IS HEREBY, ORDERED, that the New York City Department of Education shall directly pay Private School for all costs and fees for the student’s paraprofessional, to the extent not covered in the student’s base and supplemental tuition costs.

IT IS HEREBY, ORDERED, that the New York City Department of Education shall directly pay Transportation Company for all costs and fees for the student’s transportation to and from school, at a rate not to exceed $345 per trip.

IT IS HEREBY, ORDERED, that the New York City Department of Education shall directly fund the student’s 1:1 transportation nursing services.

IT IS HEREBY, ORDERED, that the New York City Department of Education is directed to provide the student the AT Services and Devices, and reimburse the parents for all associated costs with the AT device and accessories within thirty (30) days of the submission of copies of the invoices or receipts.

IT IS HEREBY, ORDERED, that the New York City Department of Education is directed to fund the following IEEs, by issuing payment directly to the providers within thirty (30) days of the submission of copies of the invoices for such evaluations:

• • A music therapy evaluation, to be conducted by a certified/ licensed provider, selected by the parent, who shall be paid at reasonable market rates consistent with rates that have been paid by the Implementation Unit of the DOE’s impartial hearing office for comparable services within the six (6) month period prior to the date of this Order; and
• • A vision services evaluation, to be conducted by a certified/ licensed provider, selected by the parent, who shall be paid at reasonable market rates consistent with rates that have been paid by the Implementation Unit of the DOE’s impartial hearing office for comparable services within the six (6) month period prior to the date of this Order; and
• • A hearing services evaluation, to be conducted by a certified/ licensed provider, selected by the parent, who shall be paid at reasonable market rates consistent with rates that have been paid by the Implementation Unit of the DOE’s impartial hearing office for comparable services within the six (6) month period prior to the date of this Order; and
• • An assistive technology evaluation, to be conducted by a licensed/ certified provider selected by the parents, who shall be paid at reasonable market rates consistent with rates that have been paid by the Implementation Unit of the DOE’s impartial hearing office for comparable services within the six (6) month period prior to the date of this Order.

IT IS HEREBY, ORDERED, that the New York City Department of Education shall reconvene the CSE within 30 days of the completion of all ordered evaluations.

DATED: SO, ORDERED

10/20/2022 /s/ Teril Holston

Teril Holston, Esq., IHO

NOTICE OF RIGHT TO APPEAL

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

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

An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for 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.

IMPARTIAL HEARING OFFICER'S CERTIFICATION OF THE RECORD

I, Teril Holston, Impartial Hearing Officer in this matter, do hereby certify that the below Index of Exhibits included within this Findings of Fact and Decision itemizes the entire record before me. I further certify that the materials included in the record are either the original or a true copy of the original materials that were provided to me in this matter.

DATED: CERTIFIED BY

10/20/2022 /s/ Teril Holston

Teril Holston, Esq., IHO

CASE # 228674 EXHIBITS

IHO Exhibits

District’s Exhibits

EXHIBIT

DATE

DOCUMENT

PAGES

1

3/2/2022

IEP (Revised)

73

2

3/2/2022

IEP

74

3

6/21/2021

Prior Written Notice

4

4

6/21/2021

Prior Written Notice- School Location Letter

3

5

1/17/2022

Psychoeducational Evaluation

8

6

1/5/2022

Social History Update

2

Parent’s Exhibits

EXHIBIT

DATE

DESCRIPTION

PAGES

A 07/06/2022 Due Process Complaint IH # 228674 10

B 05/21/2022 Findings of Fact and Decision IH# 210926 25

C 07/01/2021 [REDACTED] IEP 2021-2022 School Year 50

D 03/03/2021 NYC DOE IEP 48

E 01/17/2022 NYC DOE Psychological Evaluation 8

F 03/02/2022 [REDACTED] IEP 2022-2023 School Year 79

G 03/02/2022 NYC DOE IEP 74

H 04/05/2022 Prior Written Notice 6

I 06/14/2022 [REDACTED] Enrollment Contract 2022-2023 SY 7

J 06/16/2022 Transportation Agreement 2022-2023 SY 5

K 06/17/2022 Ten Day Notice 2022-2023 School year 2

L 07/08/2022 Determination Report 1

M 08/31/2022 Affidavit of [REDACTED] 2

N

08/31/2022

Affidavit of [REDACTED]

STUDENT v. SCHOOL DISTRICT

Student’s Name

[REDACTED]

Date of Birth

[REDACTED]

Student’s I.D. Number

[REDACTED]

Parents

[REDACTED]

Parents’ representative

[REDACTED]

District’s representative

[REDACTED]

Private School

[REDACTED]

Public School 1

[REDACTED]

Public School 2

[REDACTED]

Director

[REDACTED]

Transportation Company

[REDACTED]

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Footnotes

[4] APPENDIX A – PERSONALLY IDENTIFIABLE INFORMATION