New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 576609 - NYC: 229291

FINDINGS OF FACT AND DECISION

Case Number: 229291

Student’s Name: [REDACTED]

School District: N.Y.C. Dept. of Ed.,

Impartial Hearing Officer: Roberta Wolf

Date of Filing: 07/14/2022

Hearing Requested by: Parent

Date of Hearing: 11/29/2022

Record Close Date: 12/26/2022

Date of Decision: 12/26/2022

NAMES AND TITLES OF PERSONS WHO APPEARED ON November 29, 2022

For the Department of Education (DOE):

[REDACTED], Esq.

For the Student:

[REDACTED], Esq.

[REDACTED], Neuropsychologist

BACKGROUND AND PROCEDURAL HISTORY

On July 14, 2022, the Parent, by and through her attorney’s law firm, filed a due process complaint (DPC) against DOE on behalf of the Student, under Case No. 229291, pursuant to the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. § 1415(f)), Section 4404(1) of the New York State Education Law (Education Law); Section 504 of the Rehabilitation Act; and Title II of the Americans with Disabilities Act (ADA).1 In the DPC, the Parent asserts that DOE failed to provide the Student with a free appropriate public education (FAPE) or FAPE equivalent for the 2022-2023 and 2021-2022 school years by: (1) failing to provide Special Education Teacher Support Services (SETSS) and related services (occupational therapy (OT), speech/language (s/l) therapy) as mandated by the Student’s March 29, 2022, Individualized Education Services Program (IESP) for the 2022-2023 school year; (2) failing to provide related services (OT, s/l therapy, parent counseling and training (PCAT)), as mandated by the Student’s September 13, 2021, Individualized Education Program (IEP) for the 12-month 2021-2022 school year; (3) failing to offer sufficient related services or removing previously allotted services (physical therapy (PT), PCAT, s/l therapy, assistive technology (AT), Applied Behavioral Analysis (ABA) therapy, a paraprofessional, and summer services); and (4) failing to provide Independent Educational Evaluations (IEEs) upon the Parent’s request.^[1] The Parent seeks an Order to provide these services; compensatory education for missed services; and a reconvene by the Committee on Special Education (CSE) to consider the recommendations of the IEEs obtained by the Parent and modify the Student’s current IESP accordingly.^[2]

I was appointed impartial hearing officer (IHO) for this case on September 1, 2022, after a previous IHO recused himself on August 31, 2022. Before his recusal, the prior IHO issued an interim order granting the Parent a slate of IEEs (neuropsychological, s/l, AT, OT, PT) to be administered by evaluators of the Parent’s choosing.^[3] On September 8, 2022, I held a prehearing conference to meet the parties, clarify the issues, and gauge the Parent’s progress in obtaining the IEEs. At that conference, I followed DOE’s recommendation to schedule a second pre-hearing or status conference to allow the Parent sufficient time to complete the IEEs before setting a date for the due process hearing.^[4] I also issued an Order of Extension at the request of both parties.^[5]

On September 28, 2022, DOE filed a motion to dismiss, arguing that the prior IHO’s grant of IEEs resolved the tangible claims alleged in the DPC and any remaining issues lacked the necessary facts to award relief. I denied the motion, finding the DPC neither insufficient nor moot, first, because it contained all statutorily required information^[6] and second because DOE still disputed a real controversy: namely, the Parent’s claims for compensatory relief.^[7]

At the second pre-hearing conference dated September 29, 2022, Parent’s attorney reported that the A/T and s/l therapy evaluations were completed the day before, on September 28, 2022, and the OT and PT evaluations were scheduled for the following day, September 30, 2022; however, the neuropsychological evaluation could not be scheduled for another month (October 26, 2022).^[8] He anticipated receiving the AT, s/l therapy, OT, and PT reports by October 20, 2022; and the neuropsychological evaluation between approximately November 9, 2022, and November 16, 2022.^[9]

I scheduled the due process hearing for November 29, 2022, based on the Parent’s estimated timeline for receipt of the neuropsychological evaluation; however, Parent’s attorney advised that because he did not have a firm date for receipt of that report, his ability to draft an affidavit and timely disclose both documents could be affected.^[10] I responded that with respect to the neuropsychological evaluation and corresponding affidavit only, if the evaluator provided the report at a later time, I would consider rescheduling the hearing.^[11] With respect to all other evidence, the parties were directed that testimony must be presented via affidavits^[12] and that all evidence, including affidavits and evidence lists, was due for exchange no later than Friday, November 18, 2022.^[13] Parties were also required to notify opposing counsel and me via email no later than Tuesday, November 22, 2022, if they intended to cross-examine any affiants if so, which affiants.^[14] In the absence of notice of cross-examination, and unless I myself notified the presenting party that I had questions for an affiant by November 23, 2022, that witness would not be expected to appear.^[15] Both parties acknowledged the notice deadlines.^[16] I notified the parties that I would send a Pre-hearing Conference Summary and Order that contained the aforementioned deadlines and other directives that the parties would be expected to follow,^[17] and I emailed the Summary and Order to the parties that same day.^[18] I also granted the request of Parent’s attorney,^[19] this time over DOE’s objection,^[20] for an Order of Extension to allow time for him to receive the IEEs and for scheduling of the due process hearing.

On Friday, November 18, 2022, at 5:31pm, Parent’s attorney submitted his evidence packet, except for the aforementioned neuropsychological evaluation (and corresponding affidavit), because he had not yet received it.^[21] Later that evening, at 8:19pm, DOE submitted one, unmarked exhibit (duplicative of Parent’s Exhibit Q), no exhibit list, and no affidavits, and advised, “more [exhibits] to follow soon.”^[22] On Monday, November 21, 2022, at 10:51am, DOE emailed the remainder of its evidence packet and explained that technical difficulties prevented it from providing the disclosures sooner.^[23] Parent’s attorney objected to the packet as untimely, per 8 NYCRR 200.5j(3)(xii); and DOE raised the same objection for the Parent’s remaining exhibits. DOE did not advise of its intent to cross-examine any of the Parent’s affiants by Tuesday, November 22, 2022, or otherwise, nor did I notify the offering party that I wished to question any witnesses. Parent’s attorney disclosed the neuropsychological evaluation on Friday, November 25, 2022, at 11:46a.m. after receiving it on Wednesday, November 23, 2022, and advised that he drafted the neuropsychologist’s affidavit and sent it to him for edits that same day.^[24] Parent’s attorney provided the final, unnotarized affidavit on Friday, November 25, 2022,^[25] and a notarized copy the following Monday.^[26]

At the due process hearing on November 29, 2022, I excluded DOE’s exhibits offered on Monday November 21, 2022, as untimely; however, as I stated at the prehearing conference, because Parent’s attorney repeatedly voiced concern about his ability to timely disclose the neuropsychological evaluation and affidavit, I would adjourn the due process hearing for five business days to allow DOE to review them in accordance with 8 NYCRR 200.5j(3)(xii). DOE withdrew its objection to the documents’ admission, but asserted that my willingness to adjourn for the Parent’s documents but not DOE’s untimely disclosures exhibited bias; therefore, I should recuse myself.^[27] That request was denied, as I reiterated that the only reason I made an exception for the Parent’s two documents was because Parent’s attorney repeatedly provided notice that he might not have them by the disclosure deadline, whereas DOE raised no such concerns.^[28] DOE argued that: (1) the five-business-day-disclosure rule did not necessarily apply to untimely evidence if it was relevant and completed the record (DOE contended that its evidence met this criteria), and (2) even if unadmitted, DOE could still refer to its evidence during cross-examination; however, I rejected both arguments.^[29] With respect to live witness testimony (aside from that of the neuropsychologist, as explained below), because neither DOE nor I provided notice of intent to question any of the Parent’s affiants, those witnesses were not expected to appear.

DOE objected to the notice requirement for cross-examination and argued that notwithstanding the directives in the Prehearing Conference and Summary and Order, I could not, as a matter of law, impose any notice directives on cross-examination, because doing so was unconstitutional under both federal and state law, and contrary to an SRO decision.^[30] DOE made a record of its objection to preserve the issue for appeal.^[31] With respect to the neuropsychologist’s affidavit, disclosed after the notice deadline of November 22, 2022, I informed DOE that I would order the affiant’s appearance for cross-examination if it so requested. DOE confirmed that it had prepared cross-examination for the neuropsychologist lasting approximately 30 minutes.^[32] Parent’s attorney presented the neuropsychologist and DOE asked some background questions (e.g., how he met the Student, testing methods used, diagnoses, placement recommendations) that were mostly contained in the affidavit and evaluation. Additional cross-examination was sustained on multiple objections by Parent’s counsel (e.g., relevance, speculation, vagueness).^[33] In lieu of closing argument, DOE requested to submit a written brief to clarify its previously argued objections; however, that request was denied, because DOE had already clearly articulated those objections. DOE then asked to verbally restate its objections in place of closing argument, which was denied because DOE had already preserved those arguments in the record. DOE declined to present a closing argument and excused itself from the hearing.

The Parent’s case consisted of testimony (live and affidavit form) from the Parent and evaluators, and documents placed in evidence, a list of which is appended to this Order.

FINDINGS OF FACT

The Student is [REDACTED] years old and his eligibility for special education supports and services is not in dispute. He is classified with “Autism,” cannot read, and is non-verbal, although he enjoys listening to stories and watching educational videos.^[34] He wears a diaper and needs assistance with life activities such as walking on stairs and dressing himself.^[35] He cannot use utensils and instead uses his hands to feed himself.^[36] The Student began receiving special education services through DOE’s Early Intervention Program and those services continued through preschool and Kindergarten.^[37]

In the Student’s July 1, 2020, IEP, DOE mandated an 8:1+2 Special Class, with OT (one individual 30-minute session per week), PCAT (as mandated), and s/l therapy (two individual 30-minute sessions per week) for the 12-month, extended school year.^[38] The CSE acknowledged that the Student tended to place inedible items in his mouth and wander around the classroom,^[39] but it did not provide him with a 1:1 paraprofessional. The CSE recommended that the Student receive PT, but the Parent did not want that service, because it subtracted from his time in the classroom.^[40] The CSE did not recommend assistive technology (AT) at that time because during a four-month trial period, the Student did not use the device to communicate.^[41] In the Student’s September 13, 2021, IEP, the CSE mandated a 6:1+3 Special Class, with the same OT and s/l therapy as in the previous IEP, and PCAT (one 60-minute session per month) for the 12-month school year.^[42] The Parent asked for additional s/l therapy and reinstatement of PT; she also reiterated her request (repeatedly refused) for a 1:1 paraprofessional.^[43] The CSE told the Parent to request new evaluations and changes to the IEP after the school year began.^[44] The Parent requested a reevaluation of the Student on November 8, 2021, and DOE denied it the same day; although it agreed to convert the IEP to an IESP as outlined below.^[45]

The Parent began homeschooling the Student in September 2021, due to safety concerns (i.e., a lack of oversight from a 1:1 paraprofessional to prevent the Student from eating inedible objects, wandering off, etc.).^[46] The Student’s March 25, 2022, IESP mandated five weekly periods of SETSS, three 30-minute sessions of s/l therapy, and two 30-minute sessions of OT.^[47] The Student responded favorably to ABA, funded through the Parent’s insurance, administered at home, 16-18 hours per week.^[48] His ABA therapist attended the CSE meeting and spoke extensively about the Student’s needs and progress.^[49] The CSE acknowledged that the Student required educational support systems such as AT and behavioral intervention, but provided neither.^[50] The IESP did not provide PCAT, PT, ABA, or a 12-month, extended school year.

DOE did not provide the services it mandated in either of the IEPs or the IESP. The Parent’s DPCs requesting new IEEs and other relief followed.^[51] Per the neuropsychologist’s evaluation, the Student needs opportunities for one-to-one instruction in a highly structured classroom, staffed with teachers with experience with autism (also a 1:1 paraprofessional), at a school with a board-certified behavioral analyst (BCBA) on staff.^[52] The Student also needs at least five hours of ABA per school day (and PCAT for the Parent), s/l therapy, OT, PT, AT, and a functional behavior assessment (FBA) followed by a behavior intervention plan (BIP).^[53] Per the other IEEs, the Student needs four 30-minute weekly sessions of s/l therapy (rather than the mandated three) and a bank of 276 hours to compensate for the therapy DOE failed to provide; four 30-minute weekly sessions of OT (increased from the mandated two) and a bank of 276 hours to compensate for sessions DOE did not provide; three 30-minute weekly sessions of PT, plus 172 compensatory hours that DOE should have provided in the more recent IEP and IESP; AT equipment and training (an iPad 8th generation with 32 GB and with Proloquo2go speech application, a screen protector and protective case, plus 100 hours of training for the Student and Parent).^[54]

ANALYSIS

The IDEA and the New York Education Law require a school district to offer a FAPE to each child with an eligible disability residing in its district who requires special education programs or services.^[55] A FAPE is offered to a student when (a) the IEP developed by its CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits; and (b) the DOE complies with the procedural requirements set forth in the IDEA.^[56] For a procedural violation, an impartial hearing officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student’s right to a FAPE,

(b) significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits.^[57] In general, an impartial hearing officer’s decision must be made on substantive grounds based on a determination of whether the student received a FAPE.^[58] The DOE may be required to pay for educational services obtained for a student by his parent if a preponderance of the evidence shows: (a) the services offered by the DOE were inadequate or inappropriate (e.g., the denial of a FAPE); (b) the services selected by the parent were appropriate; and (c) equitable considerations support the parent’s claim.^[59]

FAPE Denied to the Student

A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.”^[60] An IEP must include a statement of the student's present levels of academic achievement and functional performance; annual goals designed to meet the student’s needs resulting from his disability and that enable him to make progress in the general education curriculum; and provide appropriate special education and services.^[61] “A reviewing court may fairly expect [DOE] to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of [his] circumstances.”^[62] In this case, DOE provided no explanation for how the IEPs and IESP were reasonably calculated to enable the Student to make appropriate progress in light of his specific circumstances, when DOE did not contest that it never provided the services that it mandated in the IEPs and IESP; reduced the Student’s 12-month school year to a 10-month school year without explanation; and did not provide other services such as behavioral intervention and AT, after acknowledging the Student’s need for those supports. Nor did DOE explain why it directed the Parent to request new evaluations in writing only to immediately deny that request. Additionally, DOE provided no evidence to dispute any of the recommendations in the Parent’s IEEs, all admitted into the record without objection. Because DOE failed to provide any explanation, let alone a cogent and responsive one, for how the IEPs and IESP were reasonably calculated to enable the Student to make appropriate progress appropriate in light of his circumstances, I find that DOE failed to offer the Student a FAPE or FAPE equivalent for the 2021-2022 and 2022-2023 school years.

Compensatory Relief Warranted

Compensatory education and services are equitable remedies tailored to meet the unique circumstances of each case.^[63] An award must be designed to “make up” for past denials of FAPE and place the student in the position they would have been had the district complied with its obligations under the IDEA.^[64] “[T]he inquiry must be fact-specific, and [in order] to accomplish IDEA’s purposes, the ultimate award must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place.”^[65] The compensation may take the form of supplemental special education or in related services, with the goal of fashioning appropriate relief for a denial of a FAPE.^[66] It is calculated by either a “quantitative” approach (provided equal to the period of the FAPE deprivation) or a “qualitative” approach (provided as needed to address the student’s educational deficits resulting from the FAPE deprivation). Courts have noted that when the qualitative analysis is available, it can be the more “flexible approach, rather than a rote hour-by-hour compensation award, [and thu]s more likely to address [the student’s] educational problems successfully.”^[67] In New York, when there is a lack of FAPE and the parent seeks a compensation award, the burden lies with DOE to “describ[e] its views, based on a fact-specific inquiry set forth in an evidentiary record, regarding an appropriate compensatory education remedy that would most reasonably and efficiently place the student in the position that [they] would have been but for the denial of FAPE.”^[68] However even where DOE fails to offer its “position regarding the appropriate compensatory education remedy... an outright default judgment awarding compensatory education... and all of the relief requested without question... is a disfavored outcome [including] where the district’s conduct in denying the student a FAPE and in failing to actively participate in the impartial hearing process is egregious[.]”^[69] The specific award sought, therefore, must be evaluated, because (a) “services that may be valuable for, or even critical to, a child’s educational achievement when provided in small to moderate amounts may become close to useless, or even burdensome, if provided in overwhelming quantity[;]”^[70] and (b) “[t]he purpose of compensatory education is not to punish school districts for failing to follow the established procedures for providing a [FAPE], but to compensate students with disabilities who have not received an appropriate education.”^[71] In this case, it is undisputed that the Student received no OT or s/l therapy from July 1, 2020, the date of the first IEP, until the hearing date, and the Parent received no PCAT. It is also undisputed that the Student never received SETSS from March 29, 2022, the date of the IESP, until the hearing date. It is further undisputed that DOE acknowledged the Student’s need for PT, AT, and behavioral intervention, but declined to provide those services. The Parent’s request for compensatory relief is generally a one-to-one replacement for services not provided by DOE even though mandated on the IEPs or IESPs,^[72] or as recommended by the IEEs. The Parent also requests 900 hours of ABA therapy (calculating 25 hours per week from March 29, 2022, the date of implementation of the IESP, through the hearing date, for 36 weeks).

I find that compensatory services are warranted, in part, to address the student’s needs and deficits that resulted from the FAPE deprivation, as is an Order granted in favor of the Parent to be implemented forthwith. However, I limit those services as follows. The Student shall receive the services mandated by the IEPs or IESPs that DOE failed to provide. The Student shall also receive the services recommended in the IEEs. However, I do not award compensatory ABA, an FBA, or a 1:1 paraprofessional. The Student has already been receiving ABA through the Parent’s insurance for the past 11 months, and would have received even more hours of ABA, but for the Parent’s scheduling conflicts. As such, I find an additional award would be excessive and punitive. Similarly, because the Student is receiving ABA in a home environment, I do not award an FBA with a BIP. With respective to the 1:1 paraprofessional, the neuropsychologist recommended that service in the context of a small (6:2) structured classroom for students on the autism spectrum (and contemplating the Student’s use of a school bus), rather than a one-to-one homeschooling environment; therefore, I find a paraprofessional an inappropriate service here.

ORDER

Based upon the above Findings of Fact, it is hereby:

• • ORDERED that the Student’s most recent IESP currently in effect as of the date of this Order is hereby amended, effective from the date of this Order, to reflect: “Related Services: Physical Therapy, Individual (1:1), 3 times per week, 30 minute sessions each; Occupational Therapy, Individual (1:1), 4 times per week, 30 minute sessions each; Speech and Language Therapy, Individual (1:1), 4 times per week, 30 minute sessions each; ABA Therapy, 5 sessions per week, 5 hour sessions; Parent Counseling and Training, Individual (1:1), one 60 minute session per month.”
• • FURTHER ORDERED that the Student is entitled to all services for the 12-month, extended 2022-2023 school year.
• • FURTHER ORDERED that the Student is entitled to receive 172 hours of PT to be administered individually (1:1) in 30-minute sessions.
• • FURTHER ORDERED that DOE shall fund the Student’s PT sessions at market rate, to be determined by DOE’s Implementation Unit, and shall issue payment directly to the provider of the Parent’s choosing within 30 days of submission of a copy of the invoice. This bank of compensatory PT services shall not expire for three years from the date of this Order.
• • FURTHER ORDERED that the Student is entitled to receive 276 hours of OT to be administered individually (1:1) in 30-minute sessions.
• • FURTHER ORDERED that DOE shall fund the Student’s OT sessions at market rate, to be determined by DOE’s Implementation Unit, and shall issue payment directly to the provider of the Parent’s choosing within 30 days of submission of a copy of the invoice. This bank of compensatory OT services shall not expire for three years from the date of this Order.
• • FURTHER ORDERED that the Student is entitled to receive 276 hours of s/l therapy to be administered individually (1:1) in 30-minute sessions.
• • FURTHER ORDERED that DOE shall fund the Student’s s/l therapy sessions at market rate, to be determined by DOE’s Implementation Unit, and shall issue payment directly to the provider of the Parent’s choosing within 30 days of submission of a copy of the invoice. This bank of compensatory s/l therapy services shall not expire for three years from the date of this Order.
• • FURTHER ORDERED that DOE shall fund the Student’s ABA therapy sessions at market rate, to be determined by DOE’s Implementation Unit, and shall issue payment directly to the provider of the Parent’s choosing within 30 days of submission of a copy of the invoice.
• • FURTHER ORDERED that the Parent is entitled to receive 16 hours of PCAT.
• • FURTHER ORDERED that DOE shall fund PCAT at market rate, to be determined by DOE’s Implementation Unit, and shall issue payment directly to the provider of the Parent’s choosing within 30 days of submission of a copy of the invoice. This bank of compensatory PCAT services shall not expire for two years from the date of this Order.
• • FURTHER ORDERED that the Student is entitled to receive 180 hours of SETSS.
• • FURTHER ORDERED that DOE shall fund the Student’s SETSS at market rate, to be determined by DOE’s Implementation Unit, and shall issue payment directly to the provider of the Parent’s choosing within 30 days of submission of a copy of the invoice. This bank of compensatory SETSS shall not expire for three years from the date of this Order.
• • FURTHER ORDERED that the CSE team shall meet within 14 school days after the Student’s IEEs (neuropsychological, s/l, AT, OT, PT), have been made available to the District to evaluate the new data (i.e., the contents of the IEEs) and decide what changes, if any, are appropriate to the Student’s IESP and the services offered to the Student given the findings of the evaluators.
• • FURTHER ORDERED that DOE shall provide or fund for the Student an iPad 8th generation with 32 GB and with Proloquo2go speech application, with a screen protector and protective case, plus up to 100 hours of training for the Student and Parent, at market rate, to be determined by DOE’s Implementation Unit.
• • FURTHER ORDERED that the Parent’s remaining claims for 900 hours of ABA funding, an FBA, and a 1:1 paraprofessional are DENIED.

SO ORDERED.

DATED: December 26, 2022 /s/ Roberta Wolf, Esq,

Impartial Hearing Officer

Roberta Wolf

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.

DISTRICT EVIDENCE

Exhibit

Title

Date

Pages

None.

PARENT EVIDENCE

Exhibit

Title

Date

Pages

A

IEP

4/24/20

24

B

IEP

8/12/21

23

C IESP 3/15/21 15

D IEE Request 6/17/22 3

E Hearing Request 7/14/22 3

F Hearing Request 2 9/14/22 6

G Assistive Technology Evaluation 10/11/22 11

H Physical Therapy Evaluation 10/15/22 13

I Occupational Therapy Evaluation 10/16/22 20

J Speech-Language Evaluation 10/17/02 10

K Physical Therapist Affidavit 11/14/22 9

L Occupational Therapist Affidavit 11/14/22 6

M Speech-Language Therapist Affidavit 11/16/22 8

N [REDACTED] Affidavit 11/16/22 2

O Parent Affidavit 11/18/22 3

P BCBA Affidavit 11/16/22 3

Q Conference Minutes from CSE Meeting 3/15/22 3

R Neuropsychological Evaluation 11/7/22 12

S Neuropsychologist Affidavit 11/28/22 7 Footnotes

[1] Ex. A, F.

[2] Ex. A, F.

[3] DOE consented to the Parent’s request for IEEs, but objected to the evaluators’ rates and for compensatory education based on the results of the IEEs. Transcript from Interim Order dated August 31, 2022, p. 3 lines 11-13; p. 5 lines 6-11; p. 6 lines 9-20; p. 8 lines 12-22.

[4] Prehearing conference transcript dated September 8, 2022, p. 14 lines 2-17.

[5] Prehearing conference transcript dated September 8, 2022, p. 16 lines 11-15.

[6] U.S.C. § 1415(c)(2)(C); 34 C.F.R. § 300.508(d). DOE’s sufficiency challenge was also untimely, rendering it waived. Id.

[7] On September 14, 2022, Parent’s attorney filed a second DPC with additional claims covering the same school years (#238306). I held a prehearing conference on October 20, 2022, and the parties agreed that the two DPCs should be consolidated, which I approved on October 27, 2022.

[8] Prehearing conference transcript dated September 29, 2022, p. 5 lines 17-25; p. 6 line 1.

[9] Prehearing conference transcript dated September 29, 2022, p. 6 lines. 2-10; p. 7 10-25; p. 8 lines 1-10.

[10] Prehearing conference transcript dated September 29, 2022, p. 29, lines 18-25; p. 39 lines 6-13.

[11] Prehearing conference transcript dated September 29, 2022, p. 25 lines 10-19.

[12] Prehearing conference transcript dated September 29, 2022, p. 27 lines 13-25, p. 38 line 1.

[13] Prehearing conference transcript dated September 29, 2022, p. 35 lines 13-25, p. 36 lines 1-16.

[14] Prehearing conference transcript dated September 29, 2022, p. 28 2-9.

[15] Prehearing conference transcript dated September 29, 2022, p. 28 6-17; p. 29 lines 3-9.

[16] Prehearing conference transcript dated September 29, 2022, p. 38 lines 16-22.

[17] Prehearing conference transcript dated September 29, 2022, p. 37 lines 14-25; p. 38 lines 1-22.

[18] Email titled, “229291, [REDACTED] – prehearing conference summary and order,” dated September 29, 2022, at 4:57pm.

[19] Prehearing conference transcript dated September 29, 2022, p. 40 lines 15-20.

[20] Prehearing conference transcript dated September 29, 2022, p. 40 lines 22-25; p. 41 lines 1-6.

[21] Email titled, “Parent Disclosure (229291, [REDACTED]),” dated November 18, 2022, at 5:31pm.

[22] Email titled, “Re: Parent Disclosure (229291, [REDACTED]),” dated November 18, 2022, at 8:19pm.

[23] Email titled, “Re: Parent Disclosure (229291, [REDACTED]),” dated November 21, 2022, at 10:51am.

[24] Email titled, “Neuropsych Report (229291, [REDACTED]),” dated November 25, 2022, at 11:46am.

[25] Email titled, “Re: Parent Disclosure (229291, [REDACTED]),” dated November 25, 2022, at 6:55pm.

[26] Email titled, “Re: Parent Disclosure (229291, [REDACTED]),” dated November 28, 2022, at 10:26m.

[27] Transcript p. 13 lines 7-25, p. 14 line 1.

[28] Transcript p. 14 lines 2-25, p. 15 lines 1-25, p. 16 lines 1-25. DOE withdrew its one, unmarked timely exhibit as duplicative. Transcript p. 21 line 2.

[29] Transcript p. 10 lines 16-23, p. 12 lines 6-24, p. 18 lines 6-16.

[30] Transcript p. 23 lines 11-23, p. 24 lines 11-25, p. 25 1-4, p. 31 lines 21-25, p. 32 lines 1-25, p. 33 lines 1-12.

[31] Transcript p. 33 lines 1-12.

[32] Transcript p. 26 lines 11-17, p. 29 lines 16-20.

[33] Transcript p. 44 lines 22-25, p. 45 lines 1-25, p. 46 lines 17-25, p. 47 lines 1-25, p. 48 lines 1-25, p. 49 lines 1-25, p. 50 lines 1-25, p. 51 lines 1-21.

[34] Ex. C.

[35] Id.

[36] Id.

[37] Ex. O.

[38] Ex. A.

[39] Ex. A-3.

[40] Ex. A-4, A-23.

[41] Ex. A-2.

[42] Ex. B-15, B-16.

[43] Ex. B-3, B-22.

[44] Id.

[45] Ex. F-4.

[46] Ex. O, R.

[47] Ex. C-11

[48] Ex. P.

[49] Ex. F-4, P.

[50] Ex. C-13.

[51] Ex. E, F.

[52] Ex. R.

[53] Id.

[54] Ex. G-J.

[55] U.S.C. § 1412 (a)(1)(A); Education Law §§ 4402(2)(a), (b)(2).

[56] Board of Education v. Rowley, 458 U.S. 176, 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005).

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

[58] U.S.C. § 1415(f)(3)(E)(i).

[59] School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993); Frank G. and Dianne G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356 (2d Cir. 2006), cert denied, and Board of Educ. of Hyde Park Cent. School Dist. v. Frank G., 2007 WL 2982269 (Oct. 15, 2007).

[60] Rowley, 458 U.S. at 203.

[61] See 34 C.F.R. § 300.320(a)(4); 8 NYCRR 200.4(d)(2)(v); see Application of the Dep’t of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep’t of Educ., Appeal No. 06- 029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9.

[62] Endrew F. v. Douglas County School District, 137 S. Ct. at 1002 (2017).

[63] See Wenger v. Canastota, 979 F. Supp. 147 (N.D.N.Y. 1997).

[64] P. v. Newington, 546 F.3d 111, 123 (2d Cir. 2008).

[65] Reid v. Dist. of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005); see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 (11th Cir. 2008) (holding that compensatory awards should place children in the position they would have been in but for the violation of the Act).

[66] See E.M. v. New York City Dep’t of Educ., 758 F.3d 442, 451 (2d Cir. 2014); see also Newington, 546 F.3d at 123.

[67] Bd. of Educ. of Fayette County v. L.M., 478 F.3d 307, 316 (6th Cir. 2007).

[68] Application of a Child with a Disability, Appeal No. 22-004; see also M.M. v. NYC Dep’t of Educ., 2017 WL 1194685, at *4 (S.D.N.Y. Mar. 30, 2017); Educ. Law § 4404(1)(c); E. Lyme, 790 F.3d at 457; and Reid, 401 F.3d at 524.

[69] Application of a Child with a Disability, Appeal No. 22-004 (citing Branham v. Govt. of the Dist. of Columbia, 427 F.3d 7, 11-12 (D.C. Cir. 2005).

[70] M.M. v. NYC Dep’t of Educ., 2017 WL 1194685, at *8, supra.

[71] C.W. v. Rose Tree Media Sch. Dist., 395 Fed. App’x 824, 838 (3d Cir. 2010).

[72] For example, 36 weeks of SETSS (calculated from March 29, 2022, the date of the IESP, to the hearing date using a 12-month school year) multiplied by five periods per week, which totals 180 hours.