New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 577944 - NYC: 230153

FINDINGS OF FACT AND DECISION

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

Date of Birth: [REDACTED]

School District: [REDACTED]

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

Request Date/Date Complaint Filed: August 25, 2022

Date(s) of Hearing: January 5, 2023

January 23, 2023

Actual Record Closed Date: February 6, 2023

Date of Decision: February 15, 2023

Date of Distribution if Different than Decision Date: n/a Hearing Officer: Rachel Gibbons, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

JANUARY 5, 2023

For the Student:

[REDACTED] Attorney (Via videoconference platform)

[REDACTED] Advocate (Via videoconference platform)

For the Department of Education:

[REDACTED] Attorney (Via videoconference platform)

NAMES AND TITLES OF PERSONS WHO APPEARED

JANUARY 23, 2023

For the Student:

[REDACTED] Attorney (Via videoconference platform)

Parent Parent (Via videoconference platform)

[REDACTED] Director (Via videoconference platform)

For the Department of Education:

[REDACTED] Attorney (Via videoconference platform)

[REDACTED] Attorney (Via videoconference platform)

INTRODUCTION AND PROCEDURAL HISTORY

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parent’s Due Process Complaint (“DPC") filed against the New York City Department of Education (“DOE” or “District”) on or about August 25, 2022 (P-Ex. A) ^[2]. The DPC alleged, inter alia, that the District failed to provide the Student with a free appropriate public education (“FAPE”) for the 2022-2023 school year. (P-Ex. A). The District asserted that the unilateral placement of the Student for the 2022-2023 extended school year was inappropriate. (Tr 135-136).

This IHO was appointed on August 29, 2022. The resolution period ended on September 24, 2022 On September 30, 2022 a prehearing conference was held. Status conferences were held on October 21, 2022, December 6, 2022 and December 20, 2022. A closed hearing on the merits commenced on January 5, 2023 and continued on January 23, 2023. Parent was represented by [REDACTED]. The Parent presented two witnesses at hearing: the Parent herself and [REDACTED], the Director (“Director”) of [REDACTED], the Student’s unilateral placement (“NPS”). The Parent entered into evidence nine exhibits. (P-Exs. A-I).^[3] The DOE was represented by [REDACTED] and [REDACTED]. The DOE entered into evidence seven exhibits. (D-Exs. 1-7). The DOE presented no witnesses. This IHO entered into evidence two exhibits. (IHO-Exs. I-II). The compliance date was extended four times to allow for settlement discussions, due to witness availability and finally to allow time for additional disclosure requested by this IHO. The record was closed on February 6, 2023.

JURISDICTION

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

BACKGROUND

The Student is [REDACTED] years old and is in the eighth grade. (P-Ex. A). He has attended the NPS for four years. (Tr 110). On March 16, 2022, the Committee on Special Education (“CSE”) convened and developed an Individualized Education Program (“the IEP”) with a classification of Other Health Impaired (“OHI”), which recommended, inter alia, a 12:1 special class in a DOE community school with the related services of occupational therapy (“OT”), physical therapy (“PT”), speech-language therapy (“SLT”), counseling, and parent counseling. (DOE Ex. 1 pp. 18-19). On August 25, 2022, the Parent filed a joint ten-day letter and due process complaint. (P-Ex. A) ^[4]

ISSUES

The DPC alleged that the DOE failed to provide a FAPE for the Student for the 2022-2023 extended school year. The DPC alleged, inter alia, that the CSE team was improperly composed and denied the Parent a meaningful opportunity for participation; the CSE failed to properly source, review and/or discuss all necessary and appropriate documentation and information; the CSE failed to comply with applicable timelines in the preparation and development of its triennial evaluations, observations, testing, assessments and/or other documentation; the CSE did not properly evaluate the Student in all areas of suspected disability; and the CSE did not prepare a Functional Behavioral Analysis (“FBA”) and Behavioral Intervention Plan (“BIP”). (P-Ex. A). The DPC also asserted that the IEP was inappropriate, as it failed to include any up-to-date testing; the IEP program was predetermined; the IEP evaluation results section did not reference any empirical data; the IEP management needs section was inadequate and generic and failed to include necessary supports; the IEP goals were inappropriate as they were too high, too low or too vague to produce meaningful progress; the IEP improperly held the Student to “standard” promotion criteria; and the pertinent information in the IEP was drawn from the Student’s performance in a far more supportive special education program. (Id.) The Parent alleged that the recommended classroom program and related services were not appropriate and that the Student had not received a placement letter for the 2022-2023 school year. (Id.)^[5] The Parent provided documentary evidence and witness testimony to support her claims.

The Parent requests as relief: tuition reimbursement and/or prospective funding of the Student’s tuition at the NPS; award and implementation of specialized transportation; reimbursement for private transportation costs; attorney fees and any additional relief this IHO may determine is appropriate.^[6] The District did not make a case for its provision of FAPE and argued that the NPS was not an appropriate placement for the Student. (Tr 136-137). The DOE submitted documentary evidence but presented no witnesses to support its assertions. (Id.)

FINDINGS OF FACT

1. The IEP dated March 16, 2023 has a disability classification of OHI and recommended a 12:1 special classroom for the core subjects of math, ELA, science and social studies to be provided in a community school. (D-Ex. 1 pp. 18-20). Related services were recommended as follows:

counseling, individual service, once weekly for a 30-minute session; counseling, group service, once weekly for a 30-minute session; OT, individual service, twice weekly for 30-minute sessions; PT, individual service, twice weekly for 30-minute sessions; SLT, individual service, once weekly for a 30-minute session; SLT, group service, once weekly for a 30-minute session; and parent counseling, individual service, once per month for one hour. (Id.) The IEP contained numerous recommendations in the management needs section including 1:1 support, writing outlines and prompts, movement breaks, repetition, and extended processing time. (Id. p. 6). The IEP provided that the Student would participate in general education for classes other than math, science, ELA, social studies and time spent in related services. (Id. p. 23). The IEP did not provide for special education transportation. (Id. p. 25)

2. The IEP reflected that as per the teacher observation and assessments at the NPS, the Student was on a sixth-grade level for reading, decoding, comprehension, speaking, listening, and executive functioning; a fifth grade level for written language and spelling; and a third grade level for math calculations and problem solving, and writing. (Id. pp. 1-2). The IEP cites almost exclusively to the NPS teacher and related service reports as to the Student’s then-present levels of performance and needs. (D-Ex. 1).

3. The District issued prior written notice (“PWN”) on March 25, 2022. (D-Ex. 3). There is no school location letter (“SLL”) in the record.

4. The Student has a diagnosis of scoliosis and he recently began to wear a brace 18 hours per day. (Tr 109).

5. The Director of the NPS testified that the school helps “students who have not been successful elsewhere.” (Tr 67). The students have a variety of disabilities which may include ADHD, emotional challenges, behavioral issues and/or sensory defensiveness. (Tr 68). Most of the students have difficulty with pragmatic language. (Tr 68-69). The classes have no more than six students, with a lead teacher and at least one staff support provider. (Tr 70). There are a total of 19 students in the school, ranging from second to eighth grade. (Tr 69-70).

6. The NPS utilizes a number of standardized behavioral supports that are used in every classroom and include daily report cards, “glows and grows,” a token economy, and a “helpful/hurtful meter.” (Tr 73). The program is applied “across the board” to help shape the students behaviors and allow them to get through the school day successfully. (Tr 73, 79). The teachers and staff help the students to regulate and express themselves. (Tr 74). The teachers and staff are trained to use CPI, a type of physical restraint which might be used if a student becomes dysregulated and “unsafe with their body.” (Tr 72). The lead teachers “adjust and differentiate” the Common Core math and ELA to meet the needs of their students. (Tr 75). The curriculum is differentiated for each individual student. (Tr 80). The students are grouped according to their academic levels. (Tr 91).

7. The Director has known the student since 2019. (Tr 76). The Student has difficulty working on assignments that he finds challenging or less desirable, he “escapes” from schoolwork by drawing instead of working, and has difficulties with his confidence and his relationships with others. (Tr

76-77). He struggles to engaged in difficult math concepts. (P-Ex. H p. 2). At the start of the school year he struggled to “follow directions, sit at his seat properly, or complete a task without adult prompts.” (P-Ex. G p. 7). The Student has a hard time sitting for a long period of time, thus he is encouraged to take movement breaks. (Tr 81; P-Ex. G p. 6). He is also given social scaffolding to help him communicate with others, time to transition, graphic organizers, step-by-step instructions both written and verbal, checklists, on-task prompts and chunked assignments. (Tr 81; P-Ex. H p. 2). The Student receives counseling twice weekly, once 1:1 and once in a group. (Tr 78). He receives 1:1 occupational therapy twice weekly. (Id.)

8. The Student has made progress in the following areas: self-advocacy; asking for breaks; communicating with adults, participating in structured conversations with several back-and-forth exchanges; utilizing the token economy; and asking for help instead of sitting and “not working.” (Tr 81-83; P-Ex. H). His math scores have improved. (Tr 82). He is more engaged in Science class. (P-Ex. H p. 6-7). The Student’s writing skills have improved. (P-Ex. H p. 9). He can better follow individualized checklists to help him tackle complicated tasks more effectively. (Tr 82).

He participates in an independent study which focuses on executive functioning. (Tr 84). The Student participated in several enrichment activities, including book club, STEAM, and cooking. (P-Ex. H pp. 10-12). The Parent testified that the Student has made progress. (Tr 123).

9. The Parent attended the March 16, 2022 IEP meeting. (Tr 113; Ex-D 2 p. 1). The Parent sent a combination ten-day notice letter and due process complaint on August 25, 2022, more than ten days prior to the start of the 2022-2023 school year. (P-Ex. A). She testified that if the District had offered an appropriate program and placement for the Student, she would have been open to sending him there. (Tr 124).

10. The Parent testified that she is liable under the terms of the NPS enrollment contract. (Tr 125; P-Ex. B). She has paid $6,000.00 to the NPS towards the 2022-2023 tuition.^[7] (Tr 125; P-Ex. C).

She testified that she was unable to pay for the entire NPS tuition 2022-2023 up front, as she does not have the funds. (Tr 126). She provided a tax return that further substantiates this testimony. (P-Ex. I).

CONCLUSIONS OF LAW

IDEA and FAPE

The IDEA was enacted primarily (1) to ensure that students with disabilities have available to them a free appropriate public education which is designed to meet their individual needs and prepare them for further education, employment, and independent living; and (2) to protect the rights of students with disabilities and the parents of such students. (20 U.S.C. § 1400(d)(1)(A)-(B); see generally, Forest Grove v. T.A., 557 U.S. 230, 239 (2009); Board of Educ. v. Rowley, 458 U.S. 176, 206-207 (1982)). A FAPE consists of special education and related services designed to meet a student’s unique needs which are provided in conformity with a written individualized education program. (See 20 U.S.C. § 1401(9)). A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits or the IEP is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” (See Rowley, at 192).

The Supreme Court recently clarified the substantive standard for determining whether a child’s IEP offered a FAPE. The Court held that “[t]o meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances.” (Endrew F. ex rel. Student F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988, 1001 (2017)). The Court emphasized the text of the IDEA itself and stated:

A focus on the particular child is at the core of the IDEA. The instruction offered must be “specially designed” to meet a child’s “unique needs” though an “[i]ndividualized education program” §§1401(29), (14) (emphasis added). An IEP is not a form document. It is constructed only after careful consideration of the child’s present level of achievement, disability and potential for growth. (Endrew F. at 999).

The Court continued “[A child’s] IEP need not aim for grade-level advancement. But his educational program must be appropriately ambitious in light of his circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives.” (Endrew F. at 1000).

An appropriate IEP must include: (a) a statement of the child’s present level of academic achievement and functional performance and how the child’s disability affects the child’s involvement and progress in the general education curriculum; (b) a statement of measurable annual academic and functional goals; (c) how a child’s progress towards those goals will be measured; (d) a statement of the special education and related services to be provided to the child; (e) an explanation of the extent to which the child will participate with nondisabled students in school; and (f) the projected date for the start of services and the duration. (34 CFR § 300.320(a); 8 NYCRR 200.4(d)(2)). An IEP must be developed collaboratively, by a team that includes the child’s parents, specific teachers, a school district representative and someone who can interpret evaluations. (34 CFR § 300.321, Educ. Law §4402(a)). The “core of the statute . . . is the cooperative process that [IDEA] establishes between parents and schools.” (Schaffer v. Weast, 546 U.S. 49, 53 (2005)). The Second Circuit has stated that a district “must produce, in writing, an [IEP] that ‘describes the specially designed instruction and services that will enable the child to meet’ stated educational objectives and is reasonably calculated to give educational benefits to the child.” (M.W. ex rel S.W. v. NYC Dept. of Educ., 775 F.3d 131, 135 (2d Cir. 2013) (Quoting R.E. v. NYC Dept. of Ed., 694 F.3d 167 (2d Cir. 2012)).

“The importance Congress attached to the procedural safeguards [in IDEA] cannot be gainsaid.” (See R.E. at 189-190). A procedural violation of the IDEA entitles a parent to relief only if it: “(I) impeded the child’s right to a [FAPE]; (II) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a [FAPE] to the parents’ child; or (III) caused a deprivation of educational benefits.” (20 U.S.C. § 1415(f)(3)(E)(ii); see P. v. West Hartford Bd of Educ., 885 F.3d 735, 748-749 (2d Cir. 2018); citing A.M. v. N.Y. City Dep't of Educ., 845 F.3d 523, 535 (2d Cir. 2017). “Multiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not.” (See R.E., 694 F.3d at 190. It is important to note that school districts are not required to "maximize" the potential of students with disabilities. (Rowley, 458 U.S. at 199; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003)). The IDEA ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents." (Walczak, 142 F.3d at 132 (quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989)). In addition, a child with a disability is entitled to a FAPE in the least restrictive environment (“LRE”). (20 U.S.C. §1401(9) and 34 CFR §300.17. See Mr. and Mrs. P. v. Newington Bd. of Educ., 546 F.3d 111, 114 (2d Cir. 2008); Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119 (2d Cir. 1998)). Children with disabilities must be educated with children who do not have disabilities to the maximum appropriate extent. The LRE mandate requires the determination of “whether education in the regular classroom, with the use of supplemental aids and services, can be achieved satisfactorily for a given child, and, if not, then whether the school has mainstreamed the child to the maximum extent possible.” (Mr. and Mrs. P. at 114). Burden of Proof The District bears the burden of proof during an impartial hearing, except in a tuition reimbursement case, where the Petitioner bears the burden of proof regarding the appropriateness of a unilateral placement. (Educ. Law §4404(c)(1)). The burden of proof in this matter shall be met upon a fair preponderance of the evidence, which requires that the trier of fact find that the existence of a fact is more probable than its nonexistence. If the evidence is evenly balanced, the party with the burden of persuasion must lose. Tuition Reimbursement In Burlington School Comm. v. Dept. of Education, 471 U.S. 359 (1985), the Court determined that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA. In cases where the relief sought is tuition reimbursement, the applicable three-prong analysis is contained in Burlington and its progeny. (See Florence County School Dist. Four v. Carter, 510 U.S. 7 (1993)). When applying a Burlington/Carter analysis it is necessary to determine if (1) the school district failed to offer and/or provide a FAPE to the Student; (2) the services selected by the Parents were appropriate; and (3) the equitable considerations support the parents’ claim.

The first part of the Burlington/Carter analysis considers whether the District has demonstrated that it provided a FAPE. The second prong of Burlington/Carter shifts the burden of proof and persuasion to the Parent, who must demonstrate that their unilateral placement of the Student is appropriate. (Educ. Law. 4404(1)(c)). The private placement selected by the parent does not have to be an approved special education school, (See Carter, 510 US 7 (1993)), nor does it have to meet the strict requirements of a special education placement by a public school district. However, a private placement must be tailored to meet the student’s individual needs. “A unilateral private placement is only appropriate if it provides education instruction specifically designed to meet the unique needs of a handicapped child.” (Gagliardo v. Arlington Central School District, 489 F3d 105 (2d Cir. 2007); Frank G. v. Board of Education, 459 F3d 356, 365 (2d Cir. 2006) (quoting Rowley, 458 U.S. at 188-89). The final part of the Burlington/Carter analysis determines whether equitable considerations support the award of tuition reimbursement. The IDEA permits a court to limit or deny reimbursement if the parents fail to provide notice of the student's private school enrollment in a timely manner, fail to make the student available for an evaluation, or act unreasonably in the course of the IEP's development. (See 34 CFR 300.148(d)); E.M. v. New York City Dep’t of Educ. 758 F.3d 442, 461 (2d Cir. 2014). In determining whether equitable considerations support a request for reimbursement, the courts will consider whether the parents have cooperated with the school district throughout the process to ensure that their child receives a FAPE. Bettinger v. New York City Bd. Of Educ., 2007 WL 4208560 (S.D.N.Y. November 20, 2007); Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656 (S.D.N.Y. 2005); see also S.W. v. New York City Dept of Educ., 646 F. Supp. 2d 346, 361-63 (S.D.N.Y. 2009). Excessive tuition or frequency of services may underpin a reduction in public reimbursement or payment for unilaterally obtained special education. (E.M. at 461). Direct Payment of Tuition The Parent has requested a remedy of retroactive direct payment in this matter. The Second Circuit has held that an IHO, SRO or court may order a school district to directly pay retroactive tuition when the parent has signed a contract and is legally obligated to pay the private tuition but is unable to do so due to lack of financial resources. (E.M. v. New York City Dep’t of Educ., 758 F.3d 442, 453 (2d Cir. 2014); See also Mr. and Mrs. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 406 (S.D.N.Y. 2011)). E.M. v. Dep’t Educ. states “Indeed, where the equities call for it, direct payment fits comfortably within the Burlington-Carter framework.” (758 F. Supp. 2d at 453). These direct funding cases are often referred to as “Connors” cases after Connors v. Mills, 34 F. Supp. 2d 795 (N.D.N.Y.).

ANALYSIS

The threshold issue in this case is whether or not the District provided or offered a FAPE for this student during for the 2022-2023 extended school year. The District conceded the matter of FAPE. (Tr 37). This IHO notes that there is no School Location Letter (“SLL”) in the record. The Parent testified that she never received notice of the school building where the Student’s March 2022 IEP would be implemented. (Tr 118-119). Had the District not conceded the issue of FAPE, the failure to provide the Parent with the school location would have precluded a finding for the District on the issue of FAPE. The District has failed to carry its burden of proof and persuasion that it provided a FAPE to the Student for the 2022-2023 school year. The Parent has satisfied Prong I of the Burlington/Carter analysis.

The Parent has demonstrated that the NPS was appropriate. The unilateral placement has implemented a program for the Student which provides him with small group lessons, individualized instruction, tailored behavioral supports, and accommodations that have enabled him to make progress. (Findings ¶¶ 6-8). The District argued that the NPS was not appropriate because it does not offer physical therapy (“PT”) as is recommended in the IEP. (Tr 135-136). The District also pointed out that the Student currently wears a back brace to treat scoliosis. (Id.) This argument is unpersuasive. There is no evidence that PT is required to enable the Student to make progress in school, nor does a unilateral placement have to satisfy the stricter requirements of a public placement to be deemed “appropriate” under Burlington/Carter. The Parent has satisfied Prong II.

The equitable considerations support the Parent. She attended the March 2022 IEP meeting and submitted a ten-day notice. (Findings ¶ 9; P-Ex. A). The District has not made assertions nor presented any evidence that the Parent acted in manner that would undercut the equitable considerations in her favor. The Parent prevails on Prong III of Burlington/Carter.

The Parent testified that she is liable under the enrollment contract with the NPS which states that she has the financial responsibility to pay the NPS tuition for the 2022-2023 school year. (Findings ¶ 10). She submitted a page from her 2021 tax return to demonstrate she does not have means to pay up front for the entire tuition of the NPS. (P-Ex. I). Direct payment of tuition and transportation is permissible.

ORDER

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

1. The District failed to provide a FAPE to this Student for the 2022-2023 school year;

2. The District is directed to reimburse the Parent the sum of $6,000.00, representing her partial payment to the NPS of the Student’s tuition for the 2022-2023 school year, upon receipt of a corrected affidavit of payment provided by the NPS and proof of payment provided by the Parent for same;

3. The District is directed to pay $89,000.00 to the NPS, for the outstanding tuition due for the Student’s enrollment during the 2022-2023 school year, upon receipt of a corrected affidavit of payment and updated proof of attendance; and

4. The District shall directly provide and/or fund round trip special education transportation for the Student during the 2022-2023 school year, upon presentation of proper invoices and proof of delivery of transportation services to the Student.

SO ORDERED.

DATED: February 15, 2023

Rachel Gibbons

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 A – REDACTION IDENTIFICATION PAGE

Student’s Name: [REDACTED]

Date of Birth: [REDACTED]

School District: NYC DOE [REDACTED]

Parent’s Name: [REDACTED] Enter additional text as needed to identify witness titles and names using above format. Press “enter” after each entry.

SUBMIT THIS PAGE TO THE PARENT AND SCHOOL DISTRICT ONLY. DO NOT SUBMIT

TO THE NYSED.

APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD

PARENT EXHIBITS

A. Ten-day notice/Due process complaint 8/15/2022 4 pages

B. Tuition contract 7/11/2022 4 pages

C. Affidavit of payment 10/14/2022 1 page

D. Class schedule undated 1 page

E. Attendance records undated 1 page

F. FOFD for DOE case number 188924 6/07/2020 5 pages

G. progress report undated Spring 2022 13 pages

H. progress report undated Fall 2022 14 pages

I. Tax return 2021 1 page

DOE’S EXHIBITS

1. Individualized Education Program 3/16/2022 26 pages DOE

2. Individualized Education Program attendance page 3/17/2022 1 page DOE

3. Prior notice package for placement 6/23/2022 4 pages DOE

4. Individualized Education Program meeting notes 3/16/2022 3 pages DOE

5. Student report card, winter 2022 undated 11 pages DOE

6. Level I vocational interview 3/09/2022 2 pages DOE

7. Teacher report undated 15 pages DOE

IHO’S EXHIBITS

I. Due process complaint dated 8/15/2022 with cover email dated 8/25/2022 8/25/2022 5 pages

II. Teacher report undated 27 pages ^[8]

Footnotes

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

[2] Exhibits shall be referred to as follows: “P” for Parents’ Exhibit; “P-Pend” for Parent’s exhibits from the pendency hearing; “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. Citation to the findings of fact contained infra will be referred to as “Findings” followed by the paragraph number.

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

[4] This IHO notes that the DPC is dated August 15, 2022; however, the email receipt attached to the Impartial Hearing Office copy reflects that the DPC was filed on August 25, 2022. (Compare P-Ex. A and IHO-Ex. I).

[5] This IHO notes that a number of the DPC allegations were inapplicable to this Student. (See P-Ex. A p. 2).

[6] This IHO notes that the DPC also requests as relief compensatory services in addition to reimbursement for related services and independent evaluations and/or assessments. These items are mentioned nowhere else in the record.

[7] There is an inconsistency in the NPS affidavit of payment. (P-Ex. C; Tr 128-132). The document substantiates the payment of $6,000.00 in tuition by the Parent toward the Student’s enrollment at the NPS from September 8, 2022 through and including June 27, 2023. (P-Ex. C). The affidavit, however, states that the 2021-2022 tuition is $95,000. (emphasis added).

[8] The teacher report included as IHO-Ex. II was produced by the Parent at the request of this IHO. IHO-Ex. II is a black and white copy of D-Ex. 7 with the addition of a number of blank pages.