New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 576788 - NYC: 229415

FINDINGS OF FACT AND DECISION

Student’s Name1: [REDACTED] (“Student”)

Date of Birth: [REDACTED]

School District: [REDACTED]

Hearing Requested by: [REDACTED] (“Parent(s)”) Request Date/Date Complaint Filed: July

22, 2022

Date(s) of Hearing: September 21, 2022; October 27, 2022; November 15, 2022; December ^[1], 2022

Actual Record Closed Date: February 28, 2023

Date of Decision: March 3, 2023

Date of Distribution if Different than Decision Date: March 3, 2023 Hearing Officer: Mercedes Cesaratto

NAMES AND TITLES OF PERSONS WHO APPEARED

SEPTEMBER 21, 2022

For the Student:

[REDACTED] Esq.

[REDACTED]

300 East 95th Street- Suite 130 New York, NY 10128

For the Department of Education:

[REDACTED]

Agency Attorney Special Education Unit Office of the General Counsel New York City Department of Education 333 7th Avenue, 12th Floor.

NAMES AND TITLES OF PERSONS WHO APPEARED

OCTOBER 27, 2022

For the Student:

[REDACTED], Esq.

[REDACTED]

300 East 95th Street- Suite 130 New York, NY 10128

For the Department of Education:

[REDACTED] Esq.

Agency Attorney

Special Education Unit

Office of the General Counsel

New York City Department of Education

333 7th Avenue, 12th Floor.

NAMES AND TITLES OF PERSONS WHO APPEARED

NOVEMBER 15, 2022

For the Student:

[REDACTED], Esq.

[REDACTED]

300 East 95th Street- Suite 130 New York, NY 10128

[REDACTED]

For the Department of Education:

[REDACTED], Esq.

Agency Attorney

Special Education Unit

Office of the General Counsel

New York City Department of Education

333 7th Avenue, 12th Floor.

NAMES AND TITLES OF PERSONS WHO APPEARED

DECEMBER 1, 2022

For the Student:

[REDACTED], Esq.

[REDACTED]

300 East 95th Street- Suite 130 New York, NY 10128

[REDACTED]

For the Department of Education:

[REDACTED], Esq.

Agency Attorney

Special Education Unit

Office of the General Counsel

New York City Department of Education

333 7th Avenue, 12th Floor.

INTRODUCTION AND PROCEDURAL HISTORY

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parents’ Due Process Complaint (“DPC") filed on or about July 22, 2022 (P-A)2. The Parent alleged that the Department of Education (“DOE”) failed to provide the Student with a free appropriate public education (“FAPE”) for the 2021-22 and 2022-23 school years (“SYs at Issue”). Parents allege that the DOE failed to provide a FAPE for the SYs at Issue including by (i) recommending a 12:1:4 classroom, instead of a 6:1:1 class, (ii) not providing Occupational Therapy (“OT”), Physical Therapy (“PT”) and Speech and Language Therapy (“SL Therapy”) in a frequency and duration appropriate for Student’s needs (e.g., by mandating 30 minutes sessions less frequently than on a daily basis instead of daily 60 minute sessions); (iii) not providing for a 1:1 paraprofessional; (iv) not recommending or providing assistive technology devices and services; and (v) not providing any IEP for the 2022-23 SY. Ex. A; Ex. L, at 1; Parents’ Closing Brief, at 6, 8-9.

For the failure to provide the Student with a FAPE, the Parents requested in their DPC dated July 22, 2022, the following relief: a. An Order declaring that DOE denied Student a FAPE during the 2021-22 and 2022-23 school years; b. A determination that Private School is an appropriate placement for Student; c. An Order directing payment by DOE directly to Private School for the cost of Full Tuition for the 2021-22 and 2022-23 school years in addition to the costs of related services, 1:1 nursing services, and a 1:1 paraprofessional, as needed;

2 Exhibits shall be referred to as follows: “P” for Parents’ Exhibit; “D” for District’s or Department’s Exhibits; and “IHO” for Impartial Hearing Officer’s Exhibits. Exhibits will be followed by the exhibit number and page numbers as needed and appropriate.

d. Direct payment/prospective funding of special education transportation with limited time travel, a 1:1 transportation nurse and/or paraprofessional, air conditioning, a lift bus; and a regular-sized wheelchair;

e. Reconvene a new IEP meeting to address changes if necessary;

f. An Order directing DOE to fund an independent neuropsychological evaluation.

The Department of Education did not present a case as to whether a FAPE was made available to the Student under Prong I of the Burlington-Carter analysis. Specifically, the Department of Education failed to defend whether the Student had been provided a FAPE for the SYs at issue. DOE Closing Brief, at 2. Rather, the Department of Education alleges the Parents failed to prove the unilateral placement of the Student at the Private School was appropriate and thus, failed to meet their burden under Prong II. The DOE alleged that the Parents did not meet their burden of proof, including to demonstrate the sufficiency of the credentials and qualifications of the Student’s service providers at the Private School or the qualifications of the individuals and staff responsible for developing the limited academic curricula being provided to the Student. DOE Closing Brief, at 4-5. The DOE contends that the Parents’ witness (Director of Special Education at Private School) was not credible because she submitted an inaccurate affidavit and later provided a new affidavit that needed to be corrected when she testified. DOE Closing Brief, at 6. The DOE also contends that it should not be required to fund the Private School before the Student actually began attending the Private School in May 2022, and any reimbursement ordered should be pro-rated. DOE Closing Brief, at 8.

On August 4, 2022, I was appointed to hear this matter. A resolution meeting was not held. On September 21, 2022, a pre-hearing conference was held with representatives for both parties present. A merits hearing was held on October 27, 2022, November 15, 2022, and December 1, 2022. It was a closed hearing, and Parents were represented by Parents’ Attorney. The DOE was represented by DOE Attorney. Parents presented testimonial and documentary evidence. Parents entered into evidence exhibits P-A through P-N and presented two witnesses – the Director of Special Education at the Private School and Student’s Mother. The DOE did not present testimonial evidence but did submit documentary evidence in the form of exhibits D1-9.3 Tr. at 114. Both parties submitted closing briefs attached as IHO exhibits. A list of the documentary evidence in this proceeding is appended to this decision.

JURISDICTION

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

BACKGROUND

The Student has an acquired brain injury. Ex. L at 1. Student attended preschool at a private pre-school during the 2019-20 school year, where she received 1:1 nursing services throughout the day. Exs.P- L at 1, P-M at ^[3].

The Student attended the Public School for the 2021-22 school year commencing in January 2022 until May 2022, when Student began attending the Private School for the remainder of the 2021-22 school year pursuant to a contract entered into on or about April 14, 2022, and continued in the Private School for the 2022-23 school year pursuant to a contract entered into on or about June 11, 2022. Exs. P-G, H, L at 1-2.

On June 1, 2022, the Student was classified by the DOE’s Committee on Special Education (“CSE”) as having a Learning Disability. Ex. 1, C. The Student’s classification and entitlement to special education programming are not in dispute.

On July 22, 2022, a DPC was filed against the DOE by the Parents’ Attorney on behalf of the Student, under Case No. 229415, pursuant to the Individuals with Disabilities Education Act (“IDEA”, or the “Act”) [20 U.S.C. § 1415(f)] and Section 4404(1) of the New York State Education Law (“Education Law”). Ex. A. The Student was at the time of the Due Process Complaint (“DPC”) a five-year-old enrolled at the Private School. Ex. P-L, at 1.

According to the DPC, on June 1, 2022, the Committee on Special Education (“CSE”) convened to develop an Individualized Education Program for the SYs in issue. Ex. P-A. The DPC asserts that the DOE failed to provide the Student with a Free Appropriate Public Education (FAPE) by engaging in both procedural and substantive violations for the 2021-22, and 2022-23 school years. Ex. P-A. The DPC asserts that the DOE failed (i) to mandate an appropriate class size in the June 2021 IEP; (ii) to recommend an appropriate public school location; (iii) to mandate appropriate related services (i.e., failed to recommend OT, PT and SL Therapy in the appropriate frequency and duration in order to maintain Student’s progress); (iv) to evaluate Student in all areas of suspected disability; (v) to provide Parents meaningful participation in the IEP process; (vi) to mandate appropriate special education transportation services and accommodations; and (vii) to develop an IEP for the 2022-23 school year. Ex. P-A.

Following the IEP, on April 15, 2022 and on June 17, 2022, the Parent provided the District with 10-day notices and thereafter unilaterally placed Student in the Private School as of May 2022. Exs. P-E, J. The April 15, 2022 notice notified the DOE that Parent intended to place the Student in the Private School for the 2021-22 school year. Ex. P-E, at 1. The June 17, 2022 notice notified the DOE that Parent intends to place the Student in the Private School for the 2022-23 school year. Ex. P-J, at 1. In May 2022, the Student began attending the Private School, and has been attending the Private School since that time. Ex. P-L.

ISSUES

The issues to be addressed are whether (i) the District provided the Student a Fair Appropriate Public Education (“FAPE”), (ii) the Parent is entitled to tuition reimbursement following their unilateral placement, including for tuition, related services and transportation, (iii) the Parent is entitled to an award of prospective compensatory relief to include (a) an independent neuropsychological evaluation by an independent provider; and (b) two (2) additional years of tuition reimbursement (including for tuition, related services and transportation) or, alternatively, funding of a bank of hours for Parent to obtain OT, PT, SL, and assistive technology services by independent providers.

The Parents contend that they are entitled to relief for the reasons set forth in the DPC, including but not limited to the failure of the District to develop an appropriate IEP. The District did not contest Parent’s complaint that it failed to provide a FAPE but contends that the Parent failed to meet its burden to demonstrate that the Private School is an appropriate placement and entitlement to tuition reimbursement.

FINDINGS OF FACT

A. Student

Student is presently a [REDACTED] old girl with an acquired brain injury. Ex. P-L, at

1. Student has been diagnosed with REDACTED,

B. CPSE Evaluation The CPSE Evaluation prepared on June 14, 2019 when Student was almost [REDACTED] years old noted that Student was diagnosed with REDACTED. Ex. P-B, at 1.

The CPSE Evaluation noted that Student is REDACTED, and needs constant supervision by an adult. Ex. P-B, at 1.

Student was tested as part of the CPSE Evaluation, and her cognitive skills were found to be within the Profoundly Low (<0.1%) range. Ex. B, at 2. The Verbal Comprehension Index and Visual Spatial Index both fell within the Profoundly Low (<0.1%) range. Ex. P-B, at 2. Because of Student’s limited motor skills, the evaluator noted that these scores may underestimate her cognitive abilities, and that Student responds to verbal commands, and presents as a verbal learner with stronger receptive skills. Ex. P-B, at 2.

Student received a General Development Index score included and falling within the Very Poor range (0.2%). Ex. P-B, at 2. She was tested in five domains and found to have Cognitive Domain (<.1%), Communication Domain (<.1%), Social-Emotional Domain (1%), Physical Development Domain (0.1%), and Adaptive Behavior Domain (<0.1%). Ex. C, at 4. Within the Communication Domain, the Receptive Language Subdomain score fell within the Very Poor (0.4%) range and the Express Language Subdomain fell within the Very Poor (<0.4%) range. Within the Physical Development, the Gross Motor Subdomain score fell within the Very Poor (<0.1%) range and the Fine Motor Subdomain score fell within the Very Poor (0.2%) range. Ex. P-C, at 4. Age equivalents across the domain areas ranged from 1 month to 10 months. Ex. P-C, at 4. It was noted that Student’s specific area of strength was with receptive language, as she is able to respond to her name being called, can stop momentarily when told “no”, and can follow a simple command, such as “hands up.” Ex. P-B, at 2. The CPSE Evaluation noted that Student’s Socialization standard score fell within the Low range, with a percentile rank of <1. Student’s language skills fell within the 1st percentile. Ex. P-B, at

3. Student’s Adaptive Behavior Composite, which is based on three specific adaptive behavior domains (communication, daily living skills and socialization) fell within the Low range, with a percentile rank of <1. Ex. P-B, at 3.

C. Preschool

Student attended a special preschool program during the 2019-20 school year that provided healthcare and a 1:1 nurse throughout the school day. Ex. P-L, at 1.

D. Public School During the 2021-22 SY, Student attended the Public School until May 2022. Ex P- L at 1.

E. June 1, 2022- IEP

On June 1, 2021, a Committee on Special Education meeting was held for the 2021-22 SY. Ex. D-1.

The June 1, 2021 IEP classifies Student with a Learning Disability with a Disability Classification of Multiple Disabilities. Ex. P-C, at 1. The IEP found that Student is [REDACTED] year old girl who has been classified as a preschooler with a disability. Ex. P-C, at 1. The IEP noted that as a preschooler Student was recommended for a Special Class size of 8:1:2 with a school nurse 1:1 and with the related services of Speech and Language Therapy, Physical Therapy and Occupational Therapy. Ex. P-C, at 1. The IEP repeatedly references the findings of the CPSE Evaluation. Ex. P-C, at 1; see also Ex. P-B.

The IEP noted that an observation of Student was conducted on March 19, 2021 and reflected that Student requires REDACTED. Ex. P- C, at 1. Student’s REDACTED in various directions until she independently, or with mother’s assistance supported head with the head rest. Ex. P-C, at 1. The observation further noted that non-verbal language was the Student’s primary form of communication. Ex. P-C, at

1. The IEP noted that Student, based on the Academic Turning 5 progress report from December 3, 2020, demonstrates severe delays in all development domains. Ex. P-C, at 2; Turning Five Reports were introduced by the DOE as Exs. D-2,7. Student presents with significantly delayed receptive and expressive languages skills subsequent to a diagnosis of Multi-System Global Disorder. Ex. P-C, at

3. The IEP further noted that Student is non-verbal. Ex. P-C, at

2. She wears hand splints and AFOs for her feet. Ex. P-C, at

2. Student understands most of what is said to her, but appears to be limited in her responses by motor skill and speech/language delays. Ex. P-C, at

2. According to the IEP, Student is presenting like a child who is “trapped in her body” limited by her physical challenges. Ex. P-C, at

2. The IEP noted that pre-COVID, Student traveled to school with her own nurse, who provided her care throughout the day, including administering G-Tube feedings. Ex. P-C, at

2. The IEP noted a safety concern: Student has been known to vomit frequently while on her feedings and must be watched carefully for signs of aspiration. Ex. P-C, at

2. The IEP noted that as to Student’s physical development Student has REDACTED. Ex. P-C, at

5. The IEP noted under the “Effect of Student’s Needs On Involvement and Progress in the General Education Curriculum” that Student’s needs can be met within a highly structured special class setting for children with limited mobility with related services of SL Therapy, OT, and PT. Ex. PC, at

8. The IEP stated that Student is dependent on adult support for all movements, positioning, and needs support with all ADL skills. Ex. P-C, at 8.

The IEP recommended a special class of 12:1:1. Ex. C, at 18. The IEP recommended OT of 2 times per week with 30 minute sessions, PT of 3 times per week of 30 minute sessions, and SL Therapy of 3 times per week of 30 minute sessions. Ex. P-C, at 19. Such services were to be provided outside of the classroom, in a separate location or therapist’s room. Ex. P-C, at

19. Student’s transportation needs were recommended as transportation from closest curb to school, and wheelchair accessible lift bus. Ex. P-C, at 22. No assistive technology devices or services were specified in the IEP. Ex. P-C, at 19.

Parent attended the June 2021 IEP meeting. Tr. at 53-54, Ex. P-L, at 1. Parent disagreed with the IEP and its recommendation of a 12:1:4 class at a public school, and its decision not to recommend a 1:1 paraprofessional even though Student had a 1:1 nurse while in preschool. Ex. P-L, at 1; Ex. E, at 2. The IEP rejected a 6:1:1 class stating that it would not provide support she needs with movements throughout the day with regards to ambulation and positioning, and that a NYSED-NPS Day program is too restrictive at this time. Ex. P-C, at 25.

An IEP meeting was not held for the 2022-23 SY until approximately early November 2022, which Parent attended. Tr. at 54. No IEP for the 2022-23 was provided the Parent. Tr. at 54.

F. Parents’ 10-Day Notices and Unilateral Placement at Private School On April 15, 2022, Parent provided the District with a ten-day notice for the 2021-22 school year. Ex. P-E. On June 17, 2022, Parent provided the District with a ten-day notice for the 2022-23 school year. Ex. P-J.

G. Parent’s Placement In Private School On April 4, 2022, Parent entered into an enrollment contract for April 25, 022 until June 24, 2022 SY at a pro-rated cost for tuition of $25,723.21. Ex. P-G, at 1, 8. The tuition included the cost of an individual paraprofessional, and school nurse and academic programming. Ex. P-G, at 2. Additional supplemental tuition costs of $18,999.40 were provided to cover under the contract the costs of related services, transportation paraprofessional, any individual nursing services and assistive technology devices and equipment. Ex. P-G, at 2. This contract included individual OT to the Student 5 times per week for 60-minute sessions, SL Therapy to the Student of 5 times per week for 60 minutes a session, Individual Assistive Technology Services of 2 times per week for 60 minutes per session and other related services. Ex. P-G, at 2. The total cost was $44,713.61. Ex. P-G, at 2.

On June 11, 2022, Parent entered into an enrollment contract for July 6, 2022 until June 23, 2023 SY at a tuition cost of $175,000. Ex. P-H, at 1, 6. The tuition includes the cost of an individual paraprofessional, and school nurse and academic programming. Ex. P-H, at 1. Additional supplemental costs of $106,814.40 were provided to cover under the contract the costs of related services, transportation paraprofessional, any individual nursing services and assistive technology devices and equipment. Ex. P-H, at 2. This included individual OT to the Student 5 times per week for 60-minute sessions, SL Therapy to the Student of 5 times per week for 60 minutes a session, Individual Assistive Technology Services of 2 times per week for 60 minutes per session and other related services. Ex. P-H, at 2. The total cost was $281,814.40. Ex. P-H, at 2.

H. Private School Services

The Director of Special Education at the Private School (“Director”) provided testimony and an affidavit regarding the Private School educational program, the services Student is receiving at the Private School and her educational progress. See Ex. P-N; Tr. 90-91. Director describes Student as non-verbal and non-ambulatory and requiring assistance in all activities of daily livening. Ex. P-M, at 3. Student began attending Private School in May 2022, and attended the 12-month Private School program during May and June of 2022, and during the 2022-23 SY. Ex. P-M, at 3.

Director testified that Private School is a highly specialized program which is focused on educating students with brain injuries and brain-based disorders. Ex. P-N, at 2. All of the students at Private School require 1:1 paraprofessionals to assist with activities of daily living and to have access to and benefit from the educational program. Ex. P-N, at 2. Many students also require 1:1 nurses. Ex. P-N, at 2. The Private School offers its students a wide variety of related therapy services, including OT, PT, SL, Vision Education Services, Assistive Technology services, parent counseling and training, and services for the deaf and hard of hearing. Ex. P-N, at 2. These services are designed to support the education of Private School students and are provided, as needed, and usually provided in 60-minute intervals. Ex. P-N, at 2.

Director testified that the 60-minute sessions are necessary for most therapies because students have a lot of areas they have to work on and address for each therapy. Tr. 106. In contrast to students such as Student, 30-minute mandates for therapy, for example, may be appropriate for students with higher level cognitive ability and the executive functioning to recall instructions from a therapist. Tr. at 106-07. According to Director, in contrast, 60-minute sessions are appropriate for Student because the therapy is working on range of different skills, and she, and students like her, require significant preparatory activities. Tr. at 107. The 60-minute sessions permit the clinician to practice for the range of activities that need to be achieved. Tr. at 108. The Director also testified that given the level of the particular student’s impairment, the frequency of the sessions can be up to five days per week. Tr. at 108. Parents also submitted a description of the Student’s program and progress in the form of a Private School IEP. Ex. M.

Student needs a direct instructional model, which includes intensive regimen of related services provided in 60-minute sessions. Ex .P-N, at 3. Students, such as Student, are provided a push-in /pull-out model so that their therapeutic goals are addressed in multiple locations because doing so is critical because of their brain injuries, and so they can develop general skills in different settings. Ex.P- N, at 2-3, Tr. at 79. The pull in/push out model enables the students to have access throughout the school day to the activities of the classroom and to their classmates. Tr. at 105. Approximately 42-48% of the services across the school wide population in the Private School are push in, with the target being 50%. Tr. at 112. Student attends a 6:1:1 class with peers who have similar needs and abilities. Ex. P-N, at 3. Director testified that Student has a 1:1 paraprofessional in order to permit her to attend her educational program. Ex. P-N, at 3. Student receives OT (5 X per week – 60 minutes); PT (5 X per week – 60 minutes), SL Therapy (5 X per week – 60 minutes), Vision Education Services (2 X per week – 60 minutes), Individual Music Therapy (2 X per week – 60 minutes), and Group Music Therapy (1 X per week – 60 minutes) on a push in/pull out basis. Ex. P-N, at 3, Tr. at 79, 82, 85-86, 88-89; Ex. P-M, at 39, 41, 44. The PT includes working on sitting skills and head control. Tr. at 83. The decision to provide OT on a five day per week basis for 60 minutes per session was based on the Private School’s evaluation. Tr. at 90. The Private School also provides parent training and counseling. Ex. P-N, at 4; Tr. at 92. The parents provide input as to difficulties and challenges with the goal of permitting students to make progress at the Private School. Tr. at 92. The Private School has counseled Student’s Parents and discussed academic topics. Tr. at 95.

One of Student’s teachers has a Master’s Degree, and had prior experience as a kindergarten and 6th grade teacher. Tr. at 95-96. Another of Student’s teacher has a Master’s Degree, and has a certification for birth through two years old. Tr. at 96. Student’s paraprofessional has a Bachelor’s Degree. Tr. at 102.

There are a total of 59 students in the Private School. Tr. at 97. Typically, in Student’s classroom there is a teacher and the teacher’s assistant. Tr. at 98. There is also often an additional teacher or teacher’s assistant present. Tr. at 98. There are one or two students who have nurses. Tr. at 98. There are also the paraprofessionals as 3-4 students have paraprofessionals. Tr. at 98. Each of the students will have their own paraprofessional assigned during the classroom instruction. Tr. at 102. Typically, not all six children are in the classroom due to the push in/pull out model. Tr. at 98. Other than one half hour in the morning when all 6 students are in the classroom, the remainder of the day there are usually 3 students at a time in the classroom. Tr. at 99.

Student receives 30 minutes of direct instruction with the teacher every day. Tr. at 99. This is direct instruction, targeting her Private School IEP goals. Tr. at 99. Student also receives small group instruction during the day, typically involving 2-3 students. Tr. at 99.

Director has found that Student has made considerable progress across all academic and related service domains during her attendance at Private School, and anticipates that she can build upon her progress so long as she continues to receive her educational program. Ex. P-N, at 4. Examples of Student’s progress included: ability to follow one-step directions to complete class activities, increased independence in undressing herself, improved understanding of cause and effect, improved ability to make choices, improved ability to sustain joint attention, and increased distance in walking in a gait trainer. Ex. P-N, at 4.

I. Private School IEP

Parents submitted a Recommended Individualized Education Plan prepared by the Private School. Ex P-M, at 1. The original report was prepared May 20, 2022, and an updated report prepared on October 5, 2022 (after the Student had begun attending the Private School in May 2022). Ex. P-M, at 1. The IEP noted that Student has shown significant improvement through exploration of different modes of AAC access, which has enabled her to communicate significantly better over the last couple of months. Ex.P- M, at 1.

The Private School IEP noted the Present level of Academic Performance as follows: (i) Cognition: Student is able to be attentive and to persist in completing a task; has an understanding of cause and effect and has been using her switch to answer questions, make comments, ask for more or less and to greet; has been using her communication cards to share her feelings and to make choices; (ii) Literacy: Student loves to be read to and to interact with literary materials; loves to touch books, look at pictures and to interact by using her switch to answer questions and to make comments; is currently working on story elements setting; is able to interact visually, tactilely and auditorily with literary materials and will make an effort to persist in an activity even when it is a non-preference; (iii) Math: Student has been working on recognizing her numbers from 1 to 5 and recognizing shapes circle and triangle; was able to differentiate between big and small by using her eye gaze; is able to interact with math manipulatives such as sensory numbers and shapes and visually and auditorily with music and songs about numbers and shapes; and takes pleasure in activating her switch to share the correct answer or by using her eye gaze and touching; (iv) Social: Student is making progress in interacting with her peers by greeting them and by participating in group activities during morning and afternoon groups; is able to stay focused and play games with her peers such as freeze dance, bingo, uno and matching; and enjoys art and she takes delight in working on art projects and making choices on the materials that she wants to complete her projects.

Ex. P-M, at 2.

The Private School IEP further notes that since starting at Private School, Student has demonstrated progress toward her Speech-Language Goals: (i) with regards to progress in expressive related goals, Student has presented with steady progress in this area; (ii) makes requests utilizing the voice out switch given minimal to moderate multimodal prompts as well as vocalizing her wants/needs: (iii) expresses rejection through tears/frowning independently, and is working towards a more effective way to express her upset by utilization of voice output switch or by turning her head way; (iv) made slow steady gains when discriminating between two high frequency core words and identifying common objects by their function such as spoon, cup and hairbrush. Ex.P- M, at 9.

The Private School IEP documents Student’s pre-existing very limited Motor and Physical Development. Ex P-M, at 9-13. The Private School IEP notes that Student requires a 1:1 paraprofessional to support her physical cognitive, and sensory needs throughout the day. Ex. P-M, at 13. Student requires: (i) total assist transfers, total support for functional mobility and navigation of all environments, maximal assistance for completion of all activities of daily living (ADLs), and support for safety throughout the day; and (ii) assistance with paying attention to tasks, using adapted devices/equipment, don/doffing orthotics, completing position/equipment changes, and managing overall safety. Ex. P-M, at 13.

The Private School IEP notes as to Present Level of Performance Occupational Therapy that Student currently receives individualized occupational therapy services for 60 minutes, 5 times a week during both push-in and pull-out sessions to progress towards her academic, play/leisure, and self-care goals, and requires both push-in and pull-out sessions to allow for the opportunity to work on skill progression in controlled environments, as well as generalization in the academic environment. Ex. P-M, at 16. Student requires 60 minute 1:1 skilled OT service to allow adequate time for transitioning to appropriate therapy space, transfers, preparatory activities, equipment set-up, donning/doffing of orthotics, therapeutic activity, rest-breaks, sensory intervention, demonstrations, re-direction, repetition, navigation of environment, processing time, reaction time, caregiver education, and medical intervention as needed. Ex P-M, at 16. The Private School documented her progress: On a typical day, “Student is able to maintain engagement in 60 minutes of activity, when provided with appropriate sensory input. She most often engages in 7-10 repetitions of reaching for activities (I.e., switch play, coloring, reaching for materials, etc.) given moderate verbal and tactile prompting and extended time. This is an improvement compared to Student’s start where she was reaching approximately 3-5x during activities. On her best days, Student demonstrates reaching with minimal multi-modal cueing, independent head control for short periods of time in supported seated positions, consistent choice making, and independent regulation and arousal.” Ex.P- M, at 17. The Private School notes, however, that “[o]n some days, Student may demonstrate decreased self-regulation as evidenced by crying and may require intensive sensory input for assistance with sensory regulation.” Ex. P-M, at 17.

The Private School IEP notes as to Present Level of Performance: Physical Therapy: Student currently receives 5 sixty-minute sessions of physical therapy per week, and participates in all school activities with a paraprofessional in a 1:1 ratio because she is dependent on all self-care/hygiene tasks, transfer, mobility dressing, feeding and other activities of daily living.” Ex. P-M, at 17. The Private School IEP documents Student’s improvement while attending the Private School: “Student’s first annual goal was to stand to sit with moderate assistance at her trunk and lower extremity in 4/5 trials to participate in classroom activities. Student continues to require maximal assistance to achieve this transition. In working towards her benchmark goal to maintain sitting with proper head and neck control with close supervision. Student demonstrates improvement in both these aspects requiring moderate assistance on most days and minimal assistance for short durations. Due to the decreased tone in her neck muscles, Student’s head is positioned in flexion and demonstrates difficulty holding her head in neutral.” Ex. P-M, at 18. Further progress was also noted: (i) Student’s progress depends on several factors including her endurance, arousal level, emotional and physical status during the day; (ii) on Student’s best day, she is more relaxed and actively participates and engages throughout the session; she smiles and turns her head to auditory stimuli while initiating steps in the gait trainer and stretching; requires less sensory approaches and responds better to facilitation of movement; tolerates rolling, prone and tall kneeling positioning, and requires minimal breaks; is able to maintain her head in neutral independently for short durations with improved quality; maintains sitting with bouts of minimal assistance and intermittent moderate assistance for loss of balance; maintains weight bearing in a gait trainer with moderate assistance to align her lower extremities on the ground as well as tolerates prone stander for 2 hours, outside of her physical therapy session; (ii) on Student’s typical day, Student presents with increased spasticity, requiring more time to perform preparatory activities and requires increased rest breaks; requires maximal assistance during rolling, sit to stand transfer and maintains bench sitting with consistent moderate assistance; (iii) on days when Student presents with decreased arousal, dysregulation, or significantly increased spasticity, she requires increased rest breaks, and significant time is spent on stretching, sensory regulation and passive range of motion to help her body regulate and increase arousal to participate in her school day. On such days, she presents with crying or low arousal during most or all activities. Kneeling and standing activities are often deferred, with more time spent on preferred activities such as mat and sitting activities. Ex. P-M, at 19.

Parent testified that Student has progressed in her muscle development since attending the Private School. Tr. at 52.

The Private School IEP notes the Present Level of Performance: Assistive Technology. Ex. P-M, at 21. Student receives assistive technology including a Little Mack switch, and/or more recently iPad with head tracking access and TouchChat communications software. Ex. P-M, at 21. The Private School IEP notes that the iPad “has proven to be more sustainable for Student as it requires only minimal head movements to track between 2 and 4 icons on her device.” Ex. P-M, at 21. The use of technology has permitted Student to greet peers and adults, respond to simple yes/no questions, select from preferred activities and express simple wants and needs. Ex. P-M, at 21. Student does continue to utilize switches with pre-recorded messages for different tasks throughout her day. Ex. P-M, at 21.

The Private School IEP recommended a 12-month program, 6:1:1 class size, and 1:1 paraprofessional. Ex. P-M, at 52. The Reason for the Recommendation is stated: “At this time, Student is highly distracted by peers, and although she has shown some improvement in using AAC to communicate, she continues to need the smallest class size in order to maintain her academic skills and to further develop them. Student has strong cognitive skills and needs 1:1 time with the teacher daily, which would be severely limited in larger class sizes. Furthermore, Student has made significant progress in a 6:1:1 class and so no more restrictive setting is warranted at this time. Her current class offers appropriate peer models for skills and use of specific device, while providing a highly structured environment with limited environmental distractions.” Ex. P-M, at 52.

CONCLUSIONS OF LAW

A. Burden of Proof

The burden of proof is on the school district during an impartial hearing, 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)4; see also R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 (2d Cir. 2012). The standard required is a preponderance of the evidence. 20 U.S.C. §1415(i)(2)(C)(iii); see also Walczak v. Florida Union Free Sch. Dist., 142 F.3rd 119 (2nd Cir. 1998).

B. Free Appropriate Public Education The IDEA and the New York State Education Law provide that children with disabilities are entitled to a Free Appropriate Public Education (FAPE). 20 U.S.C. § 1400 (d)(1)(A); Educ. Law §§ 4402(2)(a), (b)(2). Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are:

(1) to ensure that 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) to ensure that the rights of students with disabilities and parents of such students are protected. 20 U.S.C. § 1400(d)(1)(A)-(B). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive Individualized Education Plan (IEP). 20 U.S.C. §§ 1401(9), (29); see also Bd. Of Educ. Of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-207 (1982).

A school district has offered a student a FAPE when: (i) the board of education complies with the procedural requirements set forth in the IDEA; and (ii) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits. Rowley, 458 U.S. at 206-07. "'[A]dequate compliance with the procedures prescribed

4 “The board of education or trustees of the school district or the state agency responsible for providing education to students with disabilities shall have the burden of proof, including the burden of persuasion and burden of production, in any such impartial hearing, except that a parent or person in parental relation seeking tuition reimbursement for a unilateral parental placement shall have the burden of persuasion and burden of production on the appropriateness of such placement.” Educ. Law § 4404(1)(c). would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP.'" Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998) (quoting Rowley, 458 U.S. at 206; see also T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 (2d Cir. 2009).

To meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. ex rel. Joseph F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2017). As the Supreme Court has stated, “After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement” (citing §§ 1414(d)(1)(A)(i)(I)– (IV)). Id.

“Multiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not." R.E., 694 F.3d at 190-191. Not all procedural errors, however, render an IEP defective and warrant relief. See Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003). If procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits. 20 U.S.C. § 1415(f)(3)(E)(ii); 34 CFR 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 at 190; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 (2d Cir. 2012). School districts are obligated to provide the special education services listed in a student’s IEP. 20 U.S.C. § 1401(9)(D); 34 C.F.R. § 300.17(d) (“FAPE means special education and related services that . . . [a]re provided in conformity with an individualized education program (IEP) that meets the requirements of §§ 300.320 through 300.324”). School district actions that constitute a “material failure of implementing the IEP” deny a FAPE. See A.P. v. Woodstock Bd. Of Educ., 370 Fed. Appx. 202, 205 (2d Cir. 2010) (citing Van Duyn ex. Rel. v. Van Duyn v. Baker Sch. Dist. 5J, 502 F.3d 811, 821 (9th Cir. 2007) (“A material failure occurs when the services provided to a disabled child fall significantly short of those required by the IEP”). C. Parents’ Private Placement Parents who think that their child is not receiving a FAPE may pay for private services and seek reimbursement from the school district for “’expenses that it should have paid all along and would have borne in the first instance had it developed a proper IEP.'" M.H. v. New York City Dep't of Educ., 685 F.3d 217, 246 (2d Cir. 2012) (quoting, T.P. ex rel. S.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 252 (2d Cir.2009) (quoting Sch. Comm. of Burlington v. Dep't of Educ. of Mass., 471 U.S. 359, 370-71, (1985)). In making a claim for reimbursement, "the burden shifts to the parents to demonstrate that the school in which they have chosen to enroll their child is appropriate." Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d. Cir. 2007); M.H., 685 F.3d at 245. The parent has the burden of proving that the unilateral placement provided “educational instruction specifically designed to meet the unique needs” of the student. Gagliardo, 489 F.3d at 112. Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate." Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ. of the City Sch. Dist. of Yonkers, 231 F.3d 96, 104 (2d Cir. 2000).

The “same considerations and criteria that apply in determining whether the [s]chool [d]istrict’s placement is appropriate should be considered in determining the appropriateness of the parents’ placement. [T]he issue turns on whether a placement – public or private – is ‘reasonably calculated to enable the child to receive educational benefits.’” Gagliardo, 489 F.3d at 112 (quoting Frank G. v. Bd of Educ., 459 F.3d 356, 364 (2d Cir. 2006)). A private placement meeting this standard is one that is “likely to produce progress, not regression.” Gagliardo, 489 F.3d at 112 (quoting Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119 [2d Cir. 1998]).

Parents are, therefore, not barred from reimbursement even where a private school they choose does not meet the IDEA definition of a FAPE. Frank G., 459 F.3d at 364. In satisfying their burden, Parents need not show that the private placement: (i) meets state education standards or requirements; (ii) provides certified special education teachers; or (iii) provides for an IEP. Id. (citing Florence County Sch. Dist. Four v. Carter, 520 U.S. 7, 14 [1993]). “IDEA's requirement that an appropriate education be in the mainstream to the extent possible ... remains a consideration that bears upon a parent's choice of an alternative placement and may be considered by the hearing officer in determining whether the placement was appropriate.” M.S. ex rel. S.S. v. Bd. of Educ., 231 F.3d 96, 105 (2d Cir.2000) (citing 20 U.S.C. § 1412(5)(B)) (emphasis added). However, parents “’may not be subject to the same mainstreaming requirements as a school board.’” Frank G. v. Bd. of Educ., 459 F.3d at 364 (quoting M.S., 231 F.3d at 102. see also C.L. v. Scarsdale Union Free Sch. Dist., 744 F. 3d 826, 837 (2d Cir. 2014) (“[P]arents whose children are denied a FAPE may be and often are forced to turn to specialized private schools that educate only disabled children.”).

The Second Circuit has explained that whether the placement is “reasonably calculated to enable the child to receive educational benefits” is determined by a consideration of the “totality of circumstances”:

No one factor is necessarily dispositive in determining whether parents’ unilateral placement is reasonably calculated to enable the child to receive educational benefits. 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. Gagliardo, 489 F.3d at 112 (quoting Frank G. v. Bd of Educ., 459 F.3d at 364-65). A parental placement is appropriate if it provides “educational instruction specifically designed to meet the unique needs” of the student. Gagliardo, 489 F.3d at 114-15.

A school district may be required to pay for educational services obtained for a child by the child's parent, if (1) the services offered by the District were inadequate or inappropriate, (2) the services selected by the parent were appropriate, and (3) equitable considerations support the parent's claim. School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); see also Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993). Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA. Burlington, 471 U.S. at 370-71; Gagliardo, 489 F.3d at 111. "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE. Burlington, 471 U.S. at 370-71; 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148). Compensatory education is an available equitable remedy to make up for denial of a free and appropriate public education. P. v. Newington Bd., 546 F.3d at 111, 123 (2d Cir. 2008). A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim. Carter, 510 U.S. at 7 Burlington, 471 U.S. at 369-70.

D. Equitable Considerations To receive an award of tuition reimbursement associated with a private school program, a weighing of the equities must support that award, as “equitable considerations [relating to the reasonableness of the action taken by the parents] are relevant in fashioning relief.” Frank G., 459 F.3d at 363-64; 20 U.S.C. § 1412[a][10][C][iii]). When a school district fails to provide a student with a FAPE and the private placement is found to be appropriate, “the district court enjoys broad discretion in considering equitable factors relevant to fashioning relief.” Gagliardo, 489 F. 3d at 112, citing Carter, 510 U.S. at 16. “A major consideration . . . is whether the parents have cooperated [with the school district] throughout the process to ensure that their child receives a FAPE.” N.R. ex rel. T.R. v. Dept. of Educ., 2009 WL 874061, at *6 (S.D.N.Y. 2009) (citation omitted). Reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting before their removal of a student from public school, or by written notice ten business days before that removal. See 20 U.S.C. §1412(a)(10)(C)(iii)(I) and 34 CFR 300.148(d)(1).

ANALYSIS

A. District’s Failure to Provide A FAPE At the Due Process Hearing, the District conceded that the Student is a student with a disability who is entitled to Special Education services. In its closing brief, the DOE further conceded that it did not present a “Prong I case.” DOE Closing Brief, at 2. The District did not offer any witness as to the Committee on Special Education (CSE) proceedings, IEP recommendations or the Student’s educational needs, despite being afforded an opportunity to do so. See Endrew F., 137 S. Ct. at 2001 (school district is expected 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 circumstance.”). I find, therefore, that the DOE failed to provide a FAPE to the Student for the 2021-22 and 2022-23 SYs.

B. Parent’s Unilateral Placement at the Private School Given the District’s failure to meet its burden of proof to demonstrate a FAPE, the next issue to determine is whether the Parents’ unilateral placement of the Student at the Private School was appropriate. I find that the Parents met their burden of proof that the unilateral placement was appropriate.

Under the circumstances of this case, where the District elected not to submit any evaluative information or assessments of the Student as evidence of the District's view of the Student's special education needs into the hearing record, the Parent’s evidence prevails. The District has effectively abandoned any opportunity to assert its position regarding the Student's special education needs and the extent to which the Parent's unilateral placement either addressed or failed to address those needs. Additionally, the District's failure to enter any evaluative information into the hearing record also effectively precludes it from arguing a credible alternate view of the Student's needs or successfully rebutting the evidence proffered at the hearing by the Parents in support of the appropriateness of the unilateral placement for the Student. Accordingly, to the extent that the Private School staff relied upon evaluation reports, observations or assessments of the Student to identify the Student's needs and develop the Student's educational program, or any allegation on the part of the District that the Parent's evidence of the appropriateness of the unilateral placement was not sufficiently comprehensive for the purposes of determining the Student's needs, the responsibility for such deficiency lies with the District and not the Parent. 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 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. Moreover, because a "private placement need not provide . . . an IEP for the disabled student," the Private School had no duty to conduct the tests or evaluations typically relied upon by a district to develop an IEP. Frank G., 459 F.3d at 364.

Thus, the question of whether Private School was an appropriate unilateral placement is principally determined by analyzing whether the Private School provided "educational instruction specially designed to meet the unique needs of [the student]." Rowley, 458 U.S. at 188-89; see Gagliardo, 489 F.3d at 115; Frank G., 459 F.3d at 365. A review of the hearing record establishes that the evidence submitted by the Parents in this case was sufficient to identify the Student's unique individual needs and to satisfy the Parents' burden to establish the appropriateness of the Student's unilateral placement at Private School for the 2021-22 and 2022-23 SYs. The Private School offers a program for brain injured students, such as Student. Given the Student’s physical, cognitive and developmental needs, her needs are being met through a 6:1:1 class size with push in/pull out OT, PT and SL Therapy on a 5 day per week – 60 minute per session basis for each service. A 1:1 paraprofessional is provided, and fully warranted given the Student’s mobility and safety needs. The testimony of the Director, Parent and the documentation provided in the Private School IEP demonstrate that the Student is making progress. The use of assistive technology is directed to the Student’s non-verbal needs, and is allowing her to make progress.

The hearing record does not demonstrate that the Parent “acted with the requisite level of unreasonableness or misconduct that reimbursement should be denied on equitable grounds” (Jennifer D. ex rel. Travis D. v. New York City Dept. of Educ., 550 F. Supp 2d 420, 437 (S.D.N.Y. 2008). There is no evidence that the Parent prevented the District from providing the Student with a FAPE for the 2022-23 school year. To the contrary, the hearing record establishes that the Parents cooperated with the CSE. Here, the Parent attended the CSE meeting held on June 1, 2022 and in November 2022. Parents gave the DOE ten business days’ notice as required by 20 U.S.C. § 1412(a)(10)(C)(iii)(I) and 34 CFR 300.148(d)(1). See Exs. P-E, J. The ten-day notices informed the CSE that absent an appropriate IEP and placement, the Parents would place Student at a Private School for the remainder of the 2021-22 school year Ex. P-E and for the 2022-23 school year Ex. P- J and seek DOE funding for the placement. There is nothing in the record to indicate that the amount of tuition sought is unreasonable. Based on the foregoing, the Parent has met the third prong of the Burlington/Carter Test, as a weighing of the equities supports an award of tuition funding and/or reimbursement to the Parent.

The hearing record establishes that the Parent incurred an obligation to pay tuition to the Private School in the aggregate amount of $44,713.16 for 2021-22 school year, and $281,814.40 for the 2022-23 school year. See Exs. P-G, H. The Supreme Court has indicated that “[c]ourts fashioning equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required”, and that “[t]otal reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable” (Carter, 510 U.S. at 16). Here, the Private School’s tuition is not unreasonable given the education and other services provided. See Mr. and Mrs. A. ex rel. D.A. v. New York City Dept. of Educ., 769 F. Supp. 2d 403, 429 (S.D.N.Y. 2011) (determining that the private school tuition was not unreasonable in light of the education and related services the school provided). The hearing record further demonstrates that the Parent is financially unable to pay the tuition obligation owed to the Private School. See Ex. P-L. Tuition funding paid directly to a private school is justified where parents have satisfied the Burlington/Carter Test and have shown that they cannot afford to front the cost of their child’s tuition. E.M. ex rel. N.M. v. New York City Dept. of Educ., 758 F. 3d 442, 452-454 (2d Cir. 2014); Mr. and Mrs. A., 769 F. Supp. 2d at 427. Accordingly, the Student’s Parent is entitled to an order directing the DOE to fund their tuition obligation to the Private School for the 2021-22 and 2022-23 SYs. Since the DOE failed to provide a FAPE as of June 2021, and the contract for the 2021-22 SY was entered into on April 14, 2022 for school year commencing on April 25, 2022, and the Student began attendance shortly thereafter in mid-May, 2022, I do not find that the tuition cost should be offset because of this slight delay.

C. Parents’ Request for An Independent Educational Evaluation The Parents make an initial request for an independent neuropsychological evaluation in their DPC. Ex. P-A The Parents requested as part of the final relief an order directing funding of an independent neuropsychological evaluation. Ex.P-A. The IDEA and State and federal regulations guarantee parents the right to obtain an IEE (see 20 U.S.C. § 1415[b][1]; 34 CFR 300.502; 8 NYCRR 200.5[g]), which is 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]; see 34 CFR 300.502[a][3][i]). Parents have the right to have an IEE conducted at public expense if the parent expresses disagreement with an evaluation conducted by the district and requests that an IEE be conducted at public expense (34 CFR 300.502[b]; 8 NYCRR 200.5[g][1]; see K.B. v Pearl Riv. Union Free Sch. Dist., 2012 WL 234392, at *5 (S.D.N.Y. Jan. 13, 2012) (noting that "a prerequisite for an IEE is a disagreement with a specific evaluation conducted by the district"); R.L. v. Plainville Bd. of Educ., 363 F. Supp. 2d. 222, 234-35 (D. Conn. 2005) (finding parental failure to disagree with an evaluation obtained by a public agency defeated a parent's claim for an IEE at public expense).5

If a parent requests an IEE at public expense, the school district must, without unnecessary delay, either (1) ensure that an IEE is provided at public expense; or (2) initiate an impartial hearing to establish that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria (34 CFR 300.502[b][2][i]-[ii]; 8 NYCRR 200.5[g][1][iv). If a school district's evaluation is determined to be appropriate by an IHO, the parent may still obtain an IEE, although not at public expense (34 CFR 300.502[b][3]; 8 NYCRR 200.5[g][1][v]). Additionally, both federal and State regulations provide that "[a] parent is entitled to only one [IEE] at public expense each time the public agency conducts an evaluation with 5 Guidance from the United States Department of Education's Office of Special Education Programs (OSEP) indicates that if a parent disagrees with an evaluation because a child was not assessed in a particular area, "the parent has the right to request an IEE to assess the child in that area to determine whether the child has a disability and the nature and extent of the special education and related services that child needs" (Letter to Baus, 65 IDELR 81 [OSEP 2015]; see Letter to Carroll, 68 IDELR 279 [OSEP 2016]). which the parent disagrees" (34 CFR 300.502[b][5]; 8 NYCRR 200.5[g][1]). It is also generally within an IHO's authority to order an IEE at public expense as part of an impartial hearing (34 CFR 300.502[d]; 8 NYCRR 200.5[g][2]; [j][3][viii]; Luo v. Roberts, 2016 WL 6831122, at *7 (E.D. Pa. Oct. 27, 2016) (noting that an IHO "is permitted, and in some cases required, to order an [IEE] at public expense"), on reconsideration in part, Luo v. Owen J. Roberts Sch. Dist., 2016 WL 6962547 (E.D. Pa. Nov. 28, 2016), aff'd, 2018 WL 2944340 (3d Cir. June 11, 2018); Lyons v. Lower Merrion Sch. Dist., 2010 WL 8913276, at *3 (E.D. Pa. Dec. 14, 2010) (noting that the regulation "allows a hearing officer to order an IEE 'as part of' a larger process"); see also S. Kingstown Sch. Comm. v. Joanna S., 2014 WL 197859, at *9 n.9 (D.R.I. Jan. 14, 2014) (acknowledging opinion that the regulation empowers hearing officers to solicit independent expert opinions but disagreeing that the regulation gives an IHO "the inherent power to make up remedies out of whole cloth"), aff'd, 773 F.3d 344 [1st Cir. 2014]).

In this case, the Parents state in their closing brief that the District failed to initiate a due process complaint to defend their evaluations. However, the District cannot be held at fault because there was no evidence put forth that the Parents requested an independent neuropsychological evaluation or articulated any disagreement with a district evaluation prior to demanding the independent neuropsychological evaluation in the due process complaint notice. Additionally, there was no mention of an independent neuropsychological evaluation during the actual hearing. As mentioned the independent neuropsychological evaluation was requested in the DPC for the first time, was never addressed by the Parents in the merits hearing, nor is there evidence of any nature in the hearing record to indicate that one is necessary. This is not the process contemplated by the IDEA and its implementing regulations. See 34 CFR 300.502[b]; 8 NYCRR 200.5[g][1]); (see Application of a Student with a Disability, Appeal No. 22-150) As the Second Circuit observed, at no point does a parent need to file a due process complaint to obtain an IEE at public expense; rather they only need to demand it of the school district or disagree with the district’s neuropsychological evaluation – neither of which occurred here. See D.S. v. Trumbull Bd. of Educ., 975 F.3d 152, 168-69 (2d Cir. 2020).^[6] Based on the above, I am denying the Parent’s request to order the District to publicly fund an independent neuropsychological evaluation.

While I am denying the Parents’ request that the District fund the neuropsychological evaluation, this does not preclude the Parent from requesting that the District conduct this evaluation. Upon receipt of such request, the District must consider whether it would be appropriate to conduct the evaluations to assess the student's special education needs and, after due consideration, provide the Parent with prior written notice describing, if applicable, its reasons for concluding that additional evaluative data of the student was unnecessary (8 NYCRR 200.5[a]; see 34 CFR 300.503, 300.305[d]). If the Parent is dissatisfied with the District's response or evaluation, the Parent may then submit a request to the District that it fund an IEE in the manner contemplated by the IDEA, as discussed above.

D. Parents’ Request for Compensatory Education/Prospective Relief The Parents did not request compensatory education relief in the Parent’s Due Process Complaint dated July 22, 2022. Ex. P-A. The Parents are requesting, for the first time, in their closing brief, an award of compensatory education because District failed to provide an FAPE for the period from July 2021 to April 24, 2022. IHO- Ex. I-Parent Brief pg.26-27. Specifically, the Parents request this IHO to direct the “DOE to fully fund two additional years of the Student’s educational program at the Attending School, with no date of expiration, or in the alternative an order directing the DOE to fund a bank of hours, to be determined by the hearing officer, to be used by the Parent to obtain occupational therapy, physical therapy, speech and language therapy, or assistive technology services by independent provider at those providers’ customary rates.” The Parent stated, in their closing brief, that an award of nine (9) months of related services totaling 60 hours each of OT, PT, and SL would an appropriate compensatory award. Ex. IHO- I-Parents’ Brief, at 24, 26-27.

State regulations provide that a parent or district may file a due process complaint notice "with respect to any matter relating to the identification, evaluation or educational placement of a student with a disability, … or the provision of a free appropriate public education to such student" (8 NYCRR 200.5[i][1]; see 20 U.S.C. § 1415[b][7][A][ii]; 34 CFR 300.508[b]). Specifically, a due process complaint notice must contain, at a minimum, (i) the name of the student; (ii) the address of the residence of the student; (iii) the name of the school the student is attending; (iv) a description of the nature of the problem of the student relating to such proposed or refused initiation or change, including facts relating to such problem; and (v) a proposed resolution of the problem to the extent known and available to the party at the time (id.) (emphasis added).

The IDEA regulations require a due process complaint to include a proposed resolution to the extent known and available when the DPC is filed. It is difficult to accept that the availability of the requested remedy/relief of compensatory education or the request for prospective relief of two years of funding at the Private School, was not known and available when the DPC was filed. The District was not informed, at the time the DPC was filed, nor during the hearing, that the Parent would be seeking compensatory education. The District and this hearing officer became aware, for the first time in the Parent’s closing brief, that the Parent would be seeking compensatory education, as described above. There is no mention in the DPC of the compensatory relief now being sought in the closing brief. While Hearing Officers may have the inherent authority to order any equitable relief that’s appropriate, I believe a request for compensatory education is of a sufficiently material nature (particularly given the level of services to the Student) that it should have been requested in the DPC, at a minimum. There was no mention of the relief of compensatory education in the DPC, again, at the very least it should have at least been requested.

If compensatory education relief had been requested in the DPC (which it was not), the determination and type of compensatory education may have been sufficiently flushed out during the hearing allowing a consideration of compensatory education. However, that is not what occurred here. In this case, the Parents did not elicit any testimony regarding compensatory education in any documentary or testimonial evidence during the hearing. Merely requesting compensatory relief for the first time in their closing brief, without presenting evidence at the hearing to support the specific relief requested, is insufficient. On this basis, I am denying the Parent’s requested relief directing this IHO to order the “DOE to fully fund two additional years of the Student’s educational program at the Attending School, with no date of expiration, or in the alternative an order directing the DOE to fund a bank of hours, to be determined by the hearing officer, to be used by the Parent to obtain occupational therapy , physical therapy, speech and language therapy, or assistive technology services by independent provider at those providers’ customary rates.”

Alternatively, I would have denied the Parent’s request that the IHO order the “DOE to fully fund two additional years of the Student’s education program at the Attending School.” The prospective placement of a student in a particular type of program and placement, such as the order sought by the Parents in this matter directing the specific contents of a future IEP and nonpublic school placement, under certain circumstances, have the effect of circumventing the statutory process, pursuant to which the CSE is tasked with reviewing information about the student's progress under current educational programming and periodically assessing the student's needs (see Adams v. Dist. of Columbia, 285 F. Supp. 3d 381, 393, 396-97 (D.D.C. 2018) (noting with approval the hearing officer's finding "that the directives of IDEA would be best effectuated by ordering an IEP review and revision, rather than prospective placement in a private school"); see also Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *16 (E.D.N.Y. Oct. 30, 2008)([noting that "services found to be appropriate for a student during one school year are not necessarily appropriate for the student during a subsequent school year"]). The CSE should convene to develop an IEP for the future school years. If the Parents remain displeased with the CSE's recommendations for the Student in some subsequent IEP(s), the Parents may obtain appropriate relief by challenging the IEP(s) in a separate proceeding (see Eley v. Dist. of Columbia, 2012 WL 3656471, at *11 (D.D.C. Aug. 24, 2012) (noting that prospective placement is not an appropriate remedy until the IEP for the school year for which such placement is sought has been developed and the parent challenges that IEP).

OTHER CONTENTIONS

Other than the relief set out in my Order below, and my findings detailed in this section of “Other Considerations,” I find the Parties’ remaining contentions to be unnecessary to this decision, without merit, beyond my jurisdiction, or without sufficient basis in the record for a finding. Accordingly, any relief not specifically discussed in this decision is denied, and all of the Parent’s remaining claims not discussed herein are dismissed with prejudice.

ORDER

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

1. ORDERED, that the DOE failed to provide a FAPE to the Student for the 2021-2022; and 2022-2023 school years.

2. ORDERED, that the DOE shall fund the Student’s tuition to Private School for the 2021-

22 school year (i.e., $44,713.61 as indicated in Ex. G) and for the 2022-23 school year (ie., $281,814.40 as indicated in Ex. H).

3. ORDERED, that the DOE shall provide or fund appropriate door-to-door transportation to including wheelchair accessible bus and 1:1 paraprofessional to and from Student’s home and the Private School to the extent it is not included in the tuition costs of the Private School.

4. ORDERED, that the DOE reconvene a new IEP meeting to address changes if necessary.

SO ORDERED.

DATED: March 3, 2023

Mercedes Cesaratto (signed electronically)

Mercedes Cesaratto

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

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

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

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

APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD

PARENT EXHIBITS

PARENT DATE DESCRIPTION NUMBER OF

EXHIBIT PAGES

B. 07/22/2022 Due Process Complaint IH A # 229415 7 2021 - 2022 & 2022- 2023 School Years 06/14/2019 Preschool Student Evaluation Summary Report 06/01/2021 NYC DOE IEP C 26 06/09/2021 Prior Written Notice D 3 04/15/2022 Ten Day Notice 2021- 3 pages

E. School Year 04/15/2022 Transportation Agreement 2022 2 pages

F. School Year 05/11/2022 [REDACTED] Enrollment 2021-2022 5 pages

G. Contract School Year 06/14/2022 [REDACTED] Enrollment 2021-2022 10 pages

H. Contract School Year 06/15/2022 Transportation Agreement 2022-2023 6 pages

I. School Year 06/17/2022 Ten Day Notice 2022- 2022-2023 5 pages

J. School Year 07/12/2022 Determination Report K 1 10/06/2022 Affidavit of [REDACTED] L 3 10/05/2022 [REDACTED] IEP 2023 2 pages

M. School Year 10/06/2022 Affidavit of [REDACTED] N 4 2022-2023 56 pages

DOE’S EXHIBITS

1. # Document Date Pages Individualized Education Program 2021 - 2022 6/1/2021 31 pages DOE

2. Turning Five Social History Assessment Update 4/5/2021 5 pages DOE

3. Speech and Language Turning Report 12/20/2020 2 pages DOE

4. Speech and Language Turning 5 Report 1/11/2021 2 pages DOE

5. Occupational Therapy Turning Five Report 11/17/2020 2 pages DOE

6. Physical Therapy Report Turning Five 12/10/2020 3 pages DOE

7. Turning Five Report 12/20/2020 3 pages DOE

8. T5 School Location Letter – 2021-2022 6/15/2021 6 pages DOE

9. Prior Written Notice 6/9/2021 5 pages DOE

IHO EXHIBITS

# Document Date Pages

IHO-1 Parent’s Closing Brief January 27

5, 2023

IHO-2 District’s Closing Brief January 9

5, 2023

Footnotes

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

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

[6] The court in Trumbull speculated that a "hypothetical scenario in which a parent might need to file a due process complaint for a hearing to seek an IEE at public expense is if the school unnecessarily withheld a requested IEE or failed to file its own due process complaint to defend its challenged evaluation as appropriate. (Trumbull, 975 F.3d at 169). However, as stated above, this is not the case here.