New York City Department of Education, Impartial Hearing Decision

CASE NUMBER:579644 – NYC:231647

FINDINGS OF FACT AND DECISION

Case Number: 231647

Student’s Name: [Redacted]

School District: Service District # [REDACTED], Home District #

[REDACTED]

Impartial Hearing Officer: Michelle S. Babbitt

Date of Filing: 9.6.22

Hearing Requested by: Parent

Date of Hearing: 4.25.23, 4.27.23 and 5.4.23

Record Close Date: 7.28.23

Date of Post Hearing Written 6.22.23 Summations: Case No. 238655

NAMES AND TITLES OF PERSONS WHO APPEARED ON 4.25.2023:

[Redacted], Esq. (hereinafter referred to as “Parent’s Representative”) — Student

[Redacted], Esq. (hereinafter referred to as “Parent’s Representative #2) — Student

[Redacted], SEIT Provider (hereinafter referred to as “Witness #1”) (affidavit in lieu of direct — Student testimony and cross-examination) — Student

[Redacted], OT Provider, testimony by affidavit in lieu of direct examination and cross-examination — Student

(hereinafter referred to as “Witness #3”) — Student

[Redacted], Clinical Psychologist (hereinafter referred to as “Witness #5”) — Student

Witnesses from the [Redacted] (hereinafter “Private Hospital”) appearing on behalf of Parent pursuant to subpoena

[Redacted], attorneys for the witnesses from the Private Hospital [Redacted], Occupational Therapist, Private Hospital (hereinafter Witness # 2) [Redacted], Physical Therapist at Private Hospital (hereinafter referred to as “Witness #4”)

For the Department of Education (“DOE”):

[Redacted], Esq., Agency Attorney (hereinafter referred to as “District’s Representative”)

[Redacted], Esq., Impartial Hearing Consultant (hereinafter referred to as “District’s Representative #2”)

NAMES AND TITLES OF PERSONS WHO APPEARED ON 4.27.2023:

[Redacted], Esq. (hereinafter referred to as “Parent’s Representative”) — Student

[Redacted], Teacher, testimony by affidavit in lieu of direct examination and cross-examination — Student

(hereinafter referred to as “Witness #6”) — Student

[Redacted], Speech and Language Provider (hereinafter referred to as Witness #7) — Student

[Redacted]., Agency Providing Special Education Services (Witness #8) — Student

(“DOE”): — DOE

[Redacted], Esq., Agency Attorney (hereinafter referred to as “District’s Representative) — DOE

[Redacted], Esq., Impartial Hearing Consultant (hereinafter referred to as “District’s Representative — DOE

#2”) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON 5.4.2023:

[Redacted], Esq. (hereinafter referred to as “Parent’s Representative”) — Student

[Redacted], Parent (Witness #9) — Student

(“DOE”): — DOE

[Redacted], Esq., Agency Attorney (hereinafter referred to as “District’s Representative”) — DOE

Date of Decision: 7.28.23 — DOE

BACKGROUND AND PROCEDURAL HISTORY

Petitioner filed a Due Process Complaint on 9.6.22 (#231647) (Complaint #1). I was initially appointed to preside over this case on 9.14.22. Then on 10.19.22, Parent filed a second DPC under Case #240577 (Complaint #2) against the New York City Department of Education (“NYC DOE” or “DOE” or “District”) pursuant to the Individuals with Disabilities Education Act (“IDEA”). The two matters were consolidated on 11.14.22 under Case #231647.

On 3.2.23, I was appointed as the impartial hearing officer for Case # 246340, in which a due process complaint was filed on 3.1.23 concerning the Student’s special education program for the 2022-2023 school year (“Complaint #3”) because it involved the same student and parties. Complaint #3 was consolidated with the prior two DPCs on 3.6.23 under Case # 231647(together, the three complaints are collectively referred to as “Complaint” or “DPC”).

On 10.12.22, a prehearing conference (partial) was held on the above matter virtually via WebEx. I sent an email to the parties on that date stating:

Good afternoon: A synopsis of today’s PHC, which was subject to an early termination due to technological difficulties. Parent is withdrawing its proposed amended DPC, will file a second DPC and move to consolidate the two matters.

Ms. [Redacted] anticipates that the parent’s second filing will take place in 2 to 3 days and that she will be adding one to two more issues. Ms. [Redacted] was cautioned that recitations as to email exchanges between and among DOE and the IHO that transpired after the filing of the first DPC likely are not appropriate matters for the

DPC.

Pendency: it appears that [Redacted], a managing attorney at DOE who heads up the pendency unit, has approved Parent’s request for pendency. Mr. [Redacted] will apprise Ms. [Redacted] and the IHO of DOE’s definitive position regarding pendency on or before the close of business on October 17th. DOE was directed to file a DPR to Parent’s DPC on or before the close of business on October 19th. Case No. 238655

DOE fulfilled that obligation today, October 12th. If a pendency hearing is necessary, parent anticipates calling two witnesses, although its pendency position is based in an IEP dated 6.27.22. Mr. [Redacted] questioned the necessity of having a witness appear who would testify as to the difference between SEIT and SETSS. As pendency is based in an IEP, such testimony does in fact seem unnecessary, and if Parent maintains that such witness testimony is necessary for a pendency hearing Ms.

[Redacted] shall submit legal support for her position in a legal memorandum of no more than three pages. DOE is extended the same opportunity in support of its position. Ms. [Redacted] also stated that the parent would testify, but again, it is not clear what information the parent would add that would speak to pendency.

Pendency is not a hearing on the underlying merits where indeed such testimony is likely to be germane to the underlying issues.

The PHC will be continued on 10.21.22 from 3:30 p.m.-4:30 p.m.

Thank you for your cooperation. (IHO Exhibit 1).

On 10.21.22, the prehearing conference was continued in this matter. Parents’ counsel advised that there is no need for a Pendency Hearing as DOE has represented that it will be signing the proposed Pendency Order submitted by Parent. Parent elected not to move the case along and did not want this tribunal to set a hearing date, stating that she recently filed Complaint # 2, which she requested be consolidated with this matter, and she wants both DPCs to be heard together. The second DPC had not yet been processed. The case was scheduled for a status conference on 11.14.22 (IHO Exhibit 2).

The parties appeared for a Status Conference on 11.14.22. The DOE advised that the matter had been recommended for settlement. The Parent did not wish to schedule a hearing date in light of a good faith belief that settlement would occur. The parties agreed to hold a status conference on 12.12.22 (IHO Exhibit 3). The pendency agreement provided that the Student was entitled to receive the following educational services on a 10-month basis: The parties agreed that, from the time of the filing of the initial DPC, the Student had been entitled to receive the following educational services on a 10-month basis:

• Special Education Itinerant Teacher (“SEIT”) services, 10 hours per week, provided by [Redacted].;

• Occupational Therapy (“OT”) (3x30x1); Case No. 238655

• Physical Therapy (“PT”) (3x30x1) (Exhibit C).

On 12.12.23, another Status Conference was held. The parties requested additional time to work on the settlement. The case was scheduled to proceed to go to a hearing on 2.2.23 (IHO Exhibit 4).

On 1.23.23, the parties appeared for yet another Status Conference. The parties requested an adjournment of the hearing date. The District’s Representative stated that he would use his best efforts to prepare the comptroller memo as soon as possible. Based on this representation, the hearing was rescheduled to 3.7.23 from 12:30 p.m. to 4:30 p.m. Parent’s Representative #2 stated that Parent intends to call six witnesses and will be presenting all witnesses by direct testimony. The six witnesses are the SEIT provider; SEIT supervisor; OT provider; S/L provider; Parent, and a representative from the school. Parent’s Representative #2 stated that the SEIT supervisor will testify to the educational program administered by the SEIT teacher. I asked why the SEIT provider couldn’t testify to the program she/he is providing. Parent’s Representative # 2 was unable to provide an answer and stated that Parent’s Representative was trying the case.

I directed that on or before the close of business (5:00 p.m.) on 1.30.23 Parent’s Representative is to advise in writing why the testimony of the SEIT Supervisor is necessary because it appears to be duplicative and will unnecessarily protract the hearing. This tribunal was advised that Parent is not seeking tuition reimbursement as the same is being paid by the employer of one of the Parents. District Representative asked for an offer or proof as to the testimony of the representative from the preschool. Parent’s Representative # 2 stated that the individual would discuss the Student and his progress. Parent’s Representative was directed, on or before 1.30.23, to advise why this testimony is necessary as no relief is sought with respect to the Private Preschool. It appears that such testimony will unnecessarily protract the hearing. This is especially true as Parent is unwilling to submit any testimony by affidavit in lieu of direct testimony (IHO Exhibit 5). ^[1]

The matter thereafter was scheduled to proceed to hearing on 3.7.23 but considering the filing of Complaint # 3, the conference was converted into a status conference. On 3/6/2023, I emailed the parties advising:

Good evening: untimely forwarding of documents to this tribunal after the close of business the day prior to hearing is contrary to the PHC dated 10.21.22 issued in this proceeding. This is not Parent’s first failure to comply with orders and directives.

The parties are directed to appear tomorrow at 12:30 p.m.as scheduled. Parent shall be prepared to succinctly put on the record the issues raised in the third DPC, as consolidated and the relief sought. The DOE shall be prepared to report on the settlement and its position with respect to Parent’s allegations. Each side is to advise of how many witnesses it will be presenting (and whether by affidavit or direct testimony) the length of time it anticipates it will take to present its case and have the availability of your witnesses known, as we will be selecting a hearing date, which shall bear a final marking. Thank you.

At the 3.7.23 Status Conference, it was reported that although the matter had been recommended for settlement approximately two months ago, it appears that the matter will not settle. Therefore, the case, as consolidated, will proceed to a hearing. The matter was scheduled for hearing on 4.25.23 from 11:00 a.m. to 3:00 p.m., and if necessary, the hearing will continue on 4.27.23 from 11:00 a.m. to 3:00 p.m. Parents are expected to proceed with their case and have all witnesses available on 4.25.23 after the DOE concludes its case in chief. The parties were advised that considering the numerous adjournments to date, the hearing dates are final, and this tribunal will not entertain any further adjournments of the hearing date. Parent’s Representative # 1 stated that Parent intends on calling eight witnesses: (1) SEIT: [Redacted], (2) Counseling/Playtime: [Redacted], (3) SL: [Redacted], (4) neuropsychologist- [Redacted]’s office, (5) OT: [Redacted] or other therapist, but only one, (6) physical therapist: [Redacted], (7) [Redacted] from the preschool, and (8) one of the Parents (to be identified). Parent will be presenting all but three witnesses by direct testimony. Affidavits in lieu of direct testimony will be submitted for Ms. [Redacted], Ms. [Redacted], and the OT provider. Parent’s Representative added two additional witnesses.

do not raise an inference of bias or lack of impartiality. On 3.1.23, I issued a written Decision and Order denying Petitioner’s Motion for recusal (IHO Exhibit 7). Case No. 238655

On 1.23.23, Parent’s Representative #2 stated that the Parent would call six witnesses- the SEIT provider; SEIT supervisor; OT provider; S/L provider; Parent and a representative from the school. On 1.23.23, this tribunal was again advised that Parent is not seeking tuition reimbursement as the same is being paid by the employer of one of the parents. Parent’s Representative stated that the Parent is seeking tuition reimbursement as they do not know how much they will be reimbursed by their employer. Parent’s Representative represented that Parent will in fact seek reimbursement from their employer.

At the 3.7.23 status conference Parent’s Representative identified the issues Parent will be presenting to this tribunal: (1) Failure to timely meet for the Turning 5 IEP meeting which took place in November 2022; (2) services recommended were not provided; (3) evaluations were not completed or not thorough; (3) failure to recommend 1:1 support. The relief sought by Parent is

(1) 20 hours SEIT per week, (2) 2 hours per week SL, (3) 90 minutes OT 3 X 30 minutes per week and reimbursement of $20 co-pay; (3) PT-3 X30; and reimbursement of $20 co-pay; and

(4) $28,250.00 reimbursement of tuition for the Private Preschool (subject to reimbursement by employer). The DOE was directed to advise Parent and this tribunal if it was going to put on a case and if so, the number of witnesses and what they will be testifying to (i.e., somebody from IEP team and placement). DOE was to provide this information in an email to Parent’s Representative #1 and this tribunal no later than the close of business (5:00 p.m.) on 3.16.23 (IHO Exhibit 6).

On 4.25.23, 4.27.23 and 5.4.23 a hearing was held in the above matter virtually via WebEx. Participating in the hearing on the merits were Petitioner’s Representatives and the District’s Representatives.

HEARING

At the beginning of the 4.25.23 hearing, I confirmed the District’s position: On 3.16.23, the District Representative sent an email stating the District was not defending the November IEP. On 4.19.23, the District Representative sent another e-mail stating that the DOE was not presenting a Prong 1 case at the hearing. On 4.21.23 I received an e-mail stating that the DOE would crossexamine all witnesses (Tr.7-8, 10). 2 The District confirmed that it was not presenting a case proving

References to transcripts from 4.25.23, 4.27.23 and 5.4.23 hearing. Case No. 238655

FAPE under Prong 1 case (Tr. 10). However, it was challenging the appropriateness of the Parent’s placement, contending that the placement did not meet the Student’s educational needs and the Parent could not seek compensatory relief (Tr. 11-14). Parent made an opening statement arguing that tuition reimbursement and compensatory services were appropriate, and case law supported that position. “And there is case law that says when a pre-K program is determined to be appropriate for a kindergarten age student, and SEIT services are going to be provided, and related services are going to be provided, we look at whether there is a need for those services to be implemented in conjunction with the pre-K program. And if so, it is a reimbursable expense. And at our closing, we will provide the necessary case law and support” (Tr.14-19).

I confirmed with Parent’s Representative the relief being sought, as detailed in an email from her dated 3.12.23: the parents seek SEIT 20 sessions per week for 60 minutes for each session. Speech and language, two sessions per week for 60 minutes for each session provided in the SLP's office. I inquired if the services were to be provided after school. Parent’s Representative could not state if the SL therapy was provided after school (Tr. 19). Parent also requested:

• Occupational Therapy, reimbursement of the copays for the private OT secured by the Parents from the [Redacted] for one 45-minute session weekly

• OT in the gym

• OT: one session per week in school ^[3]

• PT: three 30-minute sessions each week (Parent providing one 45-minute session per week at the [Redacted])

• Counseling: one 60-minute session in Private Preschool each week ^[4]

• Tuition at Private Preschool (Tr. 20-21). Parent’s requested relief was not supported by the testimony and documents.

Parent’s Representative stated that no relief was being sought for compensatory services and confirmed that the relief sought was as stated in her 3.12.23 email (Tr. 19-21). The District introduced Exhibits 1-7 evidence without objection from the Parent (Tr. 23-24). Although some of Parent’s exhibits were disclosed in an untimely manner, the District did not interpose any objection based on timeliness (Tr. 24). The District objected to the admission of Exhibits D, E, G, H, FF, and TT (Tr. 27). This tribunal asked Parent’s Representative to state how the email exchanges comprising Exhibit F were germane to the proceeding. Parent’s Representative #1 initially failed to answer the question but finally stated they went to the motion to recuse submitted to this tribunal. Early in the case, Parent’s Representative contemplated appealing any decision that might be rendered after a hearing. I do not believe Exhibit F is germane to the issues set before this tribunal and so stated. Notwithstanding, the Exhibit was admitted into evidence to meet the request by Parent’s Representative for a complete record. Exhibits A-C, F, I-EE, GG-SS, and UU-XX were admitted into evidence (Tr. 31-34).

Exhibit D was an email exchange between the parties as to accepting an amended complaint. Parent’s Representative argued that the email chain shows what the parties went through to get services, even for pendency purposes. I reminded Parent’s Representative that what she states in an email is not evidence, but rather, it is the Parent’s words or actions, through letters, emails, or other correspondence, that constitute evidence. Over the District’s objection, the document was admitted into evidence. Parent’s Representative was forewarned: “Of course, it's the parent's responsibility to tie all exhibits in at the end to show me how they are germane to this proceeding. But again, what you say is not testimony” (Tr. 34-36). The District made the same objection to Exhibit E as to Exhibit D as it went to the same subject matter. The Parent’s Representative stated the same response concerning the import of Exhibit E as she did for Exhibit D. Exhibit E was admitted into evidence with this tribunal stating: “I think I have made it clear that these e-mail chains are not evidentiary in nature and are not germane to the issues, which we have identified. Nonetheless, based upon [Parent’s Representative’s] prior e-mails about fairness and recusal, in an abundance of caution, and because the parent has said how they're going to be germane to the issues, I will admit them over the objection of the DOE” (Tr. 36).

The District objected to Exhibit G, another email correspondence between counsel regarding pendency. The District noted that it did agree to pendency, and the resultant pendency agreement was in evidence at Exhibit C, so the emails preceding the pendency agreement were not “germane to the ultimate fact issues for Your Honor to determine.” Parent’s Representative argued: “The Department of Education is required to implement pendency as soon as the parent files a hearing request. Parents had to seek a hearing and jump through multiple hoops with various Department of Education representatives. Agreeing to pendency on November 13th is not the same as implementing pendency on the day the parent filed, which is September 6th, or within a reasonable time therein.” Over the DOE’s objection, Exhibit G was admitted into evidence, with Case No. 238655 my noting: “this is not germane to the issues presented today, nor has there been, you know, any showing that it is. But in light of parent's representations about recusal and fairness, I'm going to let it in, in an abundance of caution. Of course, it is the parent's obligation to show how a particular exhibit is germane to the proceeding” (Tr. 37-38).

Exhibit H is email exchanges addressing Parent’s application for recusal. The District argued that Parent’s Representative’s “dispute for a variety of issues with, Your Honor, presiding over this case, it is not relevant to any determination of fact in this case.” Parent’s Representative argued: “Parents believe that prior history of the hearing officer with respect to one of the parties is entirely relevant and grounds for recusal if this matter has to go up on appeal. Those issues need to have been raised below. Therefore, we're asking that the e-mail go in or we have to make the whole argument on the record, which would seem to be an obscene waste of time and unnecessary at this point” (Tr. 38-39). Exhibit H was admitted into evidence with this tribunal stating: “some of these emails are being used to color the proceeding, aren't germane to the issues here, which are tuition and related services, but again, I'm going to admit Exhibit H over the DOE's objection. [Parent’s Representative] has made it clear she's going to appeal almost regardless. And so I think that certain of this is used, as I said, to color or perhaps even intimidate this tribunal, which will not be had” (Tr. 38-39). This tribunal’s admission of documents was to afford Parent a complete record, as requested.

The District objected to Exhibit FF since it addressed settlement discussions, and Parent was attempting to use certain statements therein to show a referral was necessary. Parent’s Representative stated that a witness would not be testifying to Exhibit FF, but the Parent will testify to the contents therein. The statement by Parent’s Representative supported the District’s contention that such testimony was the best evidence, not the recitation by Parent’s Representative by email exchange. I reserved decision to afford myself the opportunity to review the document during a recess in the hearing (Tr. 39-43). On 4.27.23, the second day of the hearing, I determined that Exhibit FF was a summary by Parent’s Representative of certain documents that were in evidence, and as such, Exhibit FF was not the best evidence and would not be admitted into evidence (4.27.23 Tr. 160).

Exhibit TT was also not admitted into evidence at this juncture in the hearing. The District was not clear as to whether the document was complete or a photograph of a portion of a document. Since Parent’s Representative stated that a witness would be testifying as to the meaning Case No. 238655 of the document, I reserved decision on the admissibility of the document to afford the District an opportunity to voir dire the witness concerning the document (Tr. 43-44). Exhibit TT was thereafter not admitted into evidence.

I admitted into evidence the Prehearing Conference Summary and Order, status conference summaries and order, and two emails from Parent’s Representative as IHO Exhibits 1-6, with no objection from either the Parent or the District (Tr. 44-45). On 4.27.23, to complete the record, (specifically as to those documents comprising Exhibit H), I added emails from Parent’s Representative and the District’s Representative concerning Parent’s request to recuse myself from this proceeding. I also included the written Decision and Order regarding recusal and all attendant exhibits, collectively as IHO Exhibit 7. There was no objection from either party to my including these documents in the record (4.27.23 Tr.159-163).

The DOE and Parent submitted written closing summations and briefs on 6.22.23 (IHO Exhibits 8 and 9). Parent submitted a corrected exhibit list and exhibits on 7.28.23

FINDINGS OF FACT AND DECISION

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

[Redacted]’s testimony (direct testimony by affidavit VV) (SEIT Provider) (Witness # 1):

Witness # 1 is a special education itinerate teacher (“SEIT”) employed by the [Redacted] Team (Exhibit VV-1). She is with the Student for 8 hours weekly, two hours daily, Monday through Thursday. Witness # 1 is with the Student from 12:30 p.m. to 2:30 p.m. from Tuesday to Thursday. On Monday, she sees the Student from 11:30 a.m. to 1:30 p.m. The information in her affidavit at VV-1 paragraph 6 is incorrect, according to Witness # 1 (4.25.23 Tr. 50-52). The other SEIT provider is with the Student for three (3) hours each week, for a total of 11 hours of SEIT services each week. The purpose of the SEIT is to assist a student in the classroom with academics (4.25.23 Tr. 52).

Both Witness # 1 and the other SEIT provider contributed to the progress report. Their individual contributions are not identified as such in the report (4.25.23 Tr. 56-58; Exhibit Q). Case No. 238655

Witness #1 described her role as follows: “As [a] SEIT, I come in, I do work with him on academics, and completing tasks and assignments. And I am there to support him with behavioral, that can be transitions, that can be focusing on a task, that can be even how to interact with other children, socialization, appropriate -- teaching appropriate interactions. So yes, as [a] SEIT, I do work on behavioral -- the behavioral aspect, as well as the academic aspect” (4.25.23 Tr. 148-149). According to Witness #1, the Student’s behavioral issues center around avoidance behavior.

So when presented with a task, a lot of academic tasks, he will try to avoid. And so his behavior may look like, specifically him crawling away, him ignoring teacher directives, him hiding behind like an easel board. It's, it's really speaks to like avoidance. He wants to avoid the task or completing the task at hand. Also, there have been trouble, and it's not every day, but there is sometimes trouble transitioning from preferred activities to a non-preferred activity. So for instance, if we're playing on the playground and it's time you have a five-minute warning, it's time to get ready to clean up and transition back inside, back to the classroom in five minutes. When it's time to leave, he may resist or cry. That can also be seen throughout the day, like if he has to transition from reading a book or -- and going to the art room or the art classroom.

He does sometimes struggle with transitions from preferred tasks to non-preferred tasks. Even with the kind of verbal timed warnings, he does still at times struggle.

(4.25.23 Tr. 149-150). The Student’s preferred activity is the playground and socializing with other students (4.23.23 Tr. 150).

One teacher, one assistant, and seven students are in the Student’s classroom. No other student in the classroom has a one-to-one paraprofessional or a SEIT (4.25.23 Tr. 151). The Student “often loses focus on a given task, and if he is unable to work independently without receiving 1:1 support. He struggles to take initiative and follow through when trying to completer an ageappropriate task” (Exhibit VV-2). Witness # 1 breaks tasks into simpler step-by-step instructions to assist the Student in completing an assignment. She repeats the teacher’s instructions when necessary and provides modifications of material. Witness #1 works with the Student in the hallway, where she works with him for about thirty minutes on the skills that he requires the most support with. After the 1:1 session, she returns to the classroom with the Student (Exhibit VV-2). Witness #1 testified that when she or the other SEIT are not in the classroom, the teachers told her that the Student “gets very distracted he does not know what to do next. It’s very difficult for him to work Case No. 238655 independently, as he needs someone to sit with him and provide significant 1:1 support and modifications when necessary” (Exhibit VV-3).

[Redacted]’s testimony, OT at Private Hospital (appearing by subpoena served by Parent-represented by counsel) (Witness #2)

On June 27, 2022, Witness #2, an occupational therapist, evaluated the Student, whom she referred to as a “patient,” but for consistency in this decision, shall be referred to as the Student. Witness #2 prepared a written evaluation with recommendations. That document is not in evidence as no request was made by Parents or their counsel for such evaluation (4.25.23 Tr. 69-70). Thereafter, Witness #2 saw the Student one time each week for 45 minutes at the Private Hospital’s [[Redacted]] Rehab and [[Redacted]] Center. According to Witness #2 the Student has significant fine motor and visual motor integration deficits as far as for his age, being able to imitate and copy simple shapes, letters, fine motor wise, trying to elicit a three fingered grasp. He's still sort of using all of his fingers as opposed to -- opposing his thumb, rather than a more refined tripod grasp, which, you know, he should be having emerging or, or mastered at this point. Sensory wise, he has a really difficult time attending. He seems to do better following sensory input, such as, you know, vestibular proprioceptive. It seems to help him have better body awareness, calming and attention to task. Those are our primary goals. (4.25.23 Tr. 63)

Witness #2 uses “creative, playful, age-appropriate things to, to work on those skills in all different ways.” As the Student benefits from vestibular proprioceptive input, Witness #2 engages the Student in an obstacle course, swing hookups, and climbing and sliding exercises moving up and down a wedge (4.25.23 Tr. 64). The Student has made progress from a writing perspective. In the initial evaluation, the copying and imitating shapes were scribble. Now the Student “is able to do vertical horizontal, improving with intersecting lines, much better with tracing and imitating, starting to do letters of his name. We're working towards diagonal lines so that he can better form his R and his N” (4.25.23 Tr. 68). Witness #2 makes notes after every session with the Student. She was not asked by either the Parents or their counsel to provide those session notes. She is not familiar with, nor has she spoken with, any other OT provider for the Student (4.25.23 Tr. 70). Witness #2 stated that the Parents of the Student have access to all records created for the patient [Student] (4.25.23 Tr.71). Case No. 238655

Witness #2 was very clear that she could not “speak to his school-based service. I only provide medically based outpatient services” (4.25.23 Tr. 72). The evaluation/report provided to the insurance company is based on data, a variety of tests administered to the Student and her personal evaluations (4.25.23 Tr. 72). The Private Hospital only schedules 45-minute visits for their developmental patients, such as the Student. It is the Private Hospital’s general policy not to schedule two 45-minute sessions, back-to-back (4.25.23 Tr. 72-75).

[Redacted]’s testimony, OT Provider, testimony by affidavit in lieu of direct examination) (Exhibit XX) (Witness #3)

Witness #3 is a self-employed occupational therapist who worked with the Student in February and March 2023 (4.25.23 Tr. 81, Exhibit XX-1). Witness #3 received an evaluation (Exhibit 1) and IEP for the Student from the Parents. Witness #3 has not evaluated the Student. She has conducted clinical observations from her sessions but no standardized assessment. Witness #3 has not made any recommendations. She follows the IEP’s recommendations (Exhibit

6) and sees the Student three times each week, once in the gym and two times each week at the Private School. Her schedule with the Student “has been inconsistent and based upon [her]current availability.” Witness #3 has not communicated with the other OT Provider (Witness # 2) nor has she reviewed an evaluation from the Private Hospital. Witness #3 provides OT services to the Student pursuant to what she believes he needs, according to her observations. (4.25.23 Tr. 83-85, 87-88; Exhibit XX-1).

Witness #3 believes that the OT at the Private Hospital is more sensory based than fine motor based (4.25.23 Tr. 85-86). The Student comes to Witness #3’s OT’s sensory gym on Tuesdays after School and works with the Student in the Private School on Wednesdays and Fridays from 9:00 a.m. to 9:30 a.m. Once the Student engages in physical activities, he is more able to focus on fine motor activities, like handwriting, which usually comes at the end of Witness #3’s 30-minute session with the Student, for approximately 10 minutes of the 30 minutes session. The Student requires play time before he can settle down to engage in the fine motor activity (4.25.23 Tr. 89-92).

Witness #3 opined that the Student “has made fair progress. [The Student] is able to recognize all the upper-case letters. He is attempting to write all the straight-lined letters and O and Q with minimal cues. [The Student] is now able to write a few upper-case letters E, F, L, T, H, I and Case No. 238655

O and Q with significant cues and encouragement and sensory input to participate in the activity” (Exhibit XX-2).

[Redacted]’s testimony, Physical Therapist at Private Hospital (appearing by subpoena issued by Parent-represented by counsel) (Witness #4)

Witness #4 evaluated the Student in 6.22 and provided her assessment of the Student. The Student is her patient whom she sees one time each week on Thursdays from 3:15 p.m. to 4:00 p.m. for a 45-minute session at the Private Hospital (4.25.23 Tr. 95-96, 98-99). Witness #4 can only speak to the Student’s needs from the medical model. Witness #4 testified as to what constitutes the medical model: “often a child receiving PT under an educational model is working towards function within the school setting, the classroom setting and, and things of that nature, where in a medical model, we're working towards specific goals to improve function in his daily routine, as well as the community setting.” The medical model may or may not overlap with the educational model. The medical model may exceed or may enhance that which is within the educational model Witness #4 could not speak to her patient’s [the Student’s] needs under the educational model. The providers at the Private Hospital only provide services under the medical model (4.25.23 Tr.101-103).

She has not seen the Student’s IEP (4.25.23 Tr.99-100). Witness #4 works with the Student “on his coordination. So particularly, jumping mechanics, jumping forward, jumping down, jumping over objects, reciprocal negotiation of stairs, up and down, single leg balance and transitioning on and off the floor.” A session generally proceeds as follows:

usually start with a warmup activity that will engage his core, some proprioceptive work, whether that's on a physio ball, a scooter board, and then transition, it depends on which of his goals we're working on in that session. Transition, if we're working on stair negotiation, then we would then transition to a reciprocal task, such as something on the bicycle, tricycle or a reciprocal negotiation of a scooter board, and then incorporate his goal functionally into a play activity, such as an obstacle course that includes stairs, et cetera. (4.25.23 Tr. 96). The Student’s progress from his PT sessions at the Private Hospital with Witness #4 is as follows:

He's begun transitioning from the floor through half kneel position without using his arms for support. He's begun walking down the stairs, switching feet with minimal to moderate queuing. He has, you know, greatly improved his jumping mechanics, able to jump Case No. 238655 forward 75% of the time with two-foot takeoff and land and beginning to jump over one to two intervals. (4.25.23 Tr.98).

Witness #4 takes notes of each session with the Student. She was not asked to provide those notes for this hearing (4.25.23 Tr.100).

[Redacted]’s testimony, Clinical Psychologist (Witness # 5)

Witness #5 is a clinical psychologist licensed by the State of New York in 2015 (4.25.23 Tr. 107). She assessed the Student and wrote the report but did not provide the results to Parents as she was on leave. Her colleague spoke with Parents, relayed her findings, and signed off on the evaluation (4.25.23 Tr. 108-109). Witness #5 did not speak directly with the Student’s teacher regarding his functioning in the classroom, but the teacher did complete a questionnaire (4.25.23 Tr.110). The evaluation and various cognitive tests were conducted in January and February 2022. Testing and assessments were modified due to Covid restrictions (4.25.23 Tr. 111-112). Witness # 5 explained the nature of the tests:

So these particular tests, what I'm looking for with something like the WPPSI, the Wechsler Preschool &

Primary Scale of Intelligence, would be used to determine, you know, whether a child has a cognitive deficit or not.

Something like the Woodcock-Johnson would be used to determine if there is a learning disability present or not.

The ADOS, when administered in a standardized fashion, can help, among other measures, determine whether there is an autism diagnosis or not. The NEPSY would help us determine child's level of executive functioning, their capacity for attention. And the Vineland, similarly, would give us information about adaptive skills. (4.25.23 Tr. 113-114).

Witness #5 testified that the Student’s level of cognitive functioning was impaired due to the Student’s inability to focus and answer questions. She opined that his inability to focus demonstrated his need “to have redirection, to have a higher level of support, to help him sustain his attention, to help him understand what is expected of him” (4.25.23 Tr. 114-115). Witness #5’s observance of the Student’s academic skills “was that some of his skills were on par with his peers” (4.25.23 Tr.115). Case No. 238655

Repeatably, the Student tried to engage in play with Witness #5. The Student’s “level of language for his age was fairly typical.” The Student had “a higher level of activity and difficulty staying seated for structured tasks” (4.25.23 Tr. 115). The Student “is very self-directed so he is less likely to attend to something if it's not something that that he's interested in” (4.25.23 Tr.116). The Student has inconsistent regulation and attention. He has the need to get up and move. (4.25.23 Tr. 118). Witness #5 stated:

So I did not have sufficient evidence for an autism diagnosis, although there were a few symptoms of autism that were noted.

Similarly, despite the very low cognitive scores, there was insufficient evidence to make diagnosis related to an intellectual disability. As I said, per clinical judgment, it seems that his performance was negatively impacted by his attention, his lack of understanding, his regulation weaknesses and his fine motor weaknesses. There was no evidence at this time of a learning disability. The recurring theme throughout a lot of these tests that were administered and I think, you know, very much supported by the Vineland assessment was that the motor skills are a significant area of weakness here. So the diagnosis that best matches [the Student’s] profile at the time of this assessment was developmental coordination disorder. (4.25.23 Tr. 119). Witness #5 recommended that the Student have speech and language, and physical therapy evaluations. She also recommended psychotherapy and occupational therapy for the Student (4.25.23 Tr.120-121, 125). In addition, Witness #5 testified that “DIR/Floortime is recommended because that intervention specifically targets those social communication skills. So I've recommended that as an additional source of support for [the Student] to help bring him up to an age-appropriate level as far as his difficulties with reciprocity, his rigidity, and play” (4.25.23 Tr. 125).

Witness #5 opined that the Student’s “educational program should have focused on providing the foundational developmental skills related to attention, related to socialization, also giving him fine motor support with hands-on activities, and also giving him a chance to connect with others to really foster positive, supportive relationships with his peers” (4.25.23 Tr.120). According to the Witness, the Student was not ready to enter kindergarten in September 2022. She stated that the Student should be placed in “a preschool setting seemed most appropriate, again, with frequent SEIT services and then pending results of his physical therapy and speech evaluations, potentially adding those services on if warranted.” (4.25.23 Tr.124). Witness #5 did not see the need Case No. 238655 for a program outside the ten-month school year, except for psychotherapy (4.25.23 Tr. 127-128). Witness #5 conceded that to make recommendations for the 2022-2023 school year as to SEIT services, she would need updated information. “I don't know that I'd be able to speak to the level of support in September, again, without having an update on his progress between February and September” (4.25.23 Tr. 129-131).

The recommendation made by Witness #5 was to bring out the maximum potential of the Student. Witness #5 did not recommend a class size but opined that support in the classroom to redirect the Student was the more important factor (“It’s more important that he gets the one-onone support from a SEIT and that there's enough staff members in the room to be able to redirect him when needed” (4.25.23 Tr. 134). Witness #5 stated that the Student could be a model for other students in the class by exhibiting polite behavior (4.25.23 Tr. 137, 140). The Student’s delays are neurodevelopmental, but his diagnosis, according to Witness #5, was developmental coordination disorder, a disorder of motor skills. “So weaknesses in running, in fine motor skills, being able to just integrate your movements and to not be clumsy” (4.25.23 Tr. 137).

[Redacted]’s testimony, Teacher at Private Preschool, (affidavit in lieu of direct testimony-teacher) (Exhibit WW) (Witness # 6)

The Student is pulled out of the classroom for 30 minutes of the two hours per day SEIT services (4.27.23 Tr. 165-166). The Private Preschool does not provide SEIT services nor any related services (4.27.23 Tr. 166, 168-169). The Student leaves the Private Preschool one hour prior to the end of the school day every Monday (4.27.23 Tr. 168). There are 24 hours and 45 minutes to each school week, Monday through Friday. The Student has a SEIT for 11 hours each week, less than 50% of the school week. Witness #6 testified that the Student can “function throughout the day, but he needs a SEIT to help him complete tasks, educational academic tasks throughout the day” (4.27.23 Tr. 169-171). The assistant teacher in the classroom assists the Student when the SEIT is not with the Student, but the assistant teacher also helps the other six students in the classroom (4.27.23 Tr. 171-173).

Witness #6 stated that the Student loses focus and requires reminders and prompts from herself and the assistant without the support of the SEIT. The progress noted by Witness #6 was the Student “attempting to write more letters and is continuing to work on writing his name Case No. 238655 consistently. His letter identification at the beginning of the school year was around 4 letters and now it is at 18. [the Student] can now identify the numbers 1-10 with accuracy, consistently” (Exhibit WW-3).

[Redacted]’s testimony, Speech and Language Provider (Witness # 7)

Witness #7 is a self-employed speech and language pathologist (4.27.23 Tr. 177). Her undergraduate major was Russian language, not education. She received a master’s in speech and language pathology (4.27.23 Tr. 233-234). She met the Student in June 2022 and worked with him over the summer of 2022 for “just a limited number of sessions due to the family’s travel” (4.27.23 Tr. 178). Witness #7 started working with the Student regularly twice a week for 60 minutes each session starting in September 2022 and sees the Student on Mondays at 2:00 p.m. and on Fridays at 1:30 p.m. in her office (4.27.23 Tr. 178-179). When Witness #7 first met the Student in June 2022, she felt that he needed a speech and language evaluation (4.27.23 Tr.179). Witness # 7 participated in the IEP meeting and reviewed the Speech and language evaluation prior to the IEP meeting.

With respect to the Speech and language evaluation report Witness #7 had “several concerns both with the choice of assessment tools and the way that they were utilized for the evaluation.” The preschool language scale is one of the assessments used for the evaluation, a “valid option,” according to Witness # 7 (4.27.23 Tr. 180-181; 188, Exhibit GG). Witness #7 took issue with the findings in the speech and language evaluation and the test used by the evaluator. She created a document to explain why she disagreed with the evaluation. That document, created for litigation purposes, was intended to support the testimony of Witness #7. It was an incomplete document. The District objected to the admission of the document. I sustained the objection and Exhibit TT was not admitted into evidence. Notably, Witness #7 did not, at any time, conduct her own evaluation (4.27.23 Tr. 186-198, 223). Witness #7 prepared a “Speech-Language and Literacy Progress Report” dated January 2023 (4.27.23 Tr.185). She found the Student:

• “presented with both restrictions in the thematic content of and delays in the organization of his play schema”

• “presented with decreased ability to use language for an age-appropriate variety of communicative functions during play” Case No. 238655

• “demonstrated marked difficulty relating personal narratives and asking/answering questions to sustain on‐topic, back and forth conversational exchanges”

• “demonstrated significant difficulty during structured preacademic/literacy assessment”

• “difficulty remaining seated and attending to/carrying out verbal directives”

• “unable to identify or label any uppercase or lowercase letters, was unable to identify/label or attempt to draw a variety of simple shapes, unable to produce a recognizable representational drawing, and unable to write, copy or trace any letters” (Exhibit V-1). Witness #7’s report speaks to the IEP meeting, which she attended on behalf of the Student just two weeks (6.27.23) after having met the Student for one 60-minute session (6.13.23)(“it wasn't an evaluation, it was just an informal assessment, it was a meeting”) Witness #7 stated she voiced concerns concerning the Student’s speech and language needs to the team at the IEP meeting (4.27.23 Tr. 180, 199-200, 209-210, 212, Exhibit X-1 and V-1). She noted that the Parents elected to privately provide the Student with speech-language and literacy intervention before the IEP meeting (Exhibit V-1).

Witness #7 attended the Turning 5 CSE meeting on 11.15.22 and expressed her concerns to the team as to the Student’s speech and language deficits. Witness #7 does not know if she recommended a level of speech-language service for the Student at the 11.15.22 meeting (4.27.23 Tr. 215-216).

Witness #7 stated that the Student required an extended period of play each session on initiation of therapy. The Student “could tolerate clinician-directed activities only briefly and would disengage with the clinician and instead engage in self-directed, fantasy talk/play if more demands than he could tolerate were placed” (Exhibit V-2). As therapy progressed, the Student participated in “book reading, a play extension, and journaling activity each session.” The Student was “encouraged to engage with a variety of manipulatives/sensory media during play extensions including various types of blocks, Legos, Magna tiles, wiki sticks, play doh, foam, and shaving cream.” During Speech therapy the Student engaged in journaling during which he was “encouraged to draw a picture related to the story or play extension activity, given models and specific cues. [The Student] has begun to trace and copy lines and curves more readily and even to trace the letters in his name or a thematically associated word” (Exhibit V-2). Case No. 238655

Witness #7 stated the Student:

• “improved significantly in his ability to answer comprehension questions related to selected storybooks”

• “ability to understand/use the personal pronouns he/she has been an ongoing target in therapy and improvements have been noted particularly during dramatic re‐enactment of stories using props. [The Student] is not yet using these pronouns accurately spontaneously.”

• “is encouraged to engage with a variety of manipulatives/sensory media during play extensions, including various types of blocks, Legos, Magna tiles, wiki sticks, play doh, foam, and shaving cream. Using these types of manipulatives/media in a purposefully symbolic manner is a challenge for [the Student] from both visual‐motor and symbolic standpoints, but he is improving in his ability to do so briefly with repeated opportunities, models/cues and encouragement/reinforcement as needed.”

• “has begun to trace and copy lines and curves more readily and even to trace the letters in his name or a thematically associated word”

• “will frequently ignore or engage in unrelated conversation to avoid questions about personal experiences, although he is beginning to say, “I don’t want to talk about it” with encouragement and models. Engaging in conversation on a variety of topics will remain an ongoing target and will eventually serve as a foundation from which to participate in group discussions, make self-to-text connections, etc.”

• “letter/number knowledge has likewise been addressed each session. His school based SEIT has provided regular reports regarding letters being worked on as well as [the Student’s]

response to these activities in the classroom”

• “able to count with 1:1 correspondence through at least 5, if items are spaced adequately apart; however, he does not yet ID/label these numerals consistently during thematic or calendar math activities. [The Student] will continue to require an intensive regimen of individual academic instruction in order to stabilize foundational skills in the areas of preliteracy and math” (Exhibit V-2-3; See also 4.27.23 Tr. 216-217).

Witness # 7’s recommendations for the Student were:

• “continue to receive the support of a 1:1 SEIT in the classroom to address his needs in the areas of behavior, participation, and socialization. Recent reports from [the Student’s]

classroom and SEIT teachers suggest that [the Student] is having greater difficulty participating in and transitioning between activities as demands in the classroom continue to increase.

• ‘continues to require intensive 1:1 support to stabilize basic letter knowledge and number concepts. An increase in SEIT services to 20 hours per week is recommended.”

• “continue to receive ST a minimum of 2X60 minutes weekly.”

• “continue to receive OT/PT per his current provider’s recommendations.” Case No. 238655

• “participate in counseling/play therapy weekly.”

• “should have an updated speech‐language and literacy evaluation prior to his transition into

Kindergarten and an updated neuropsychological evaluation to rule out a learning disability/literacy disorder if indicated.” (Exhibit V-3). Witness #7 was not asked to provide a recommendation as to SEIT services. She gratuitously provided the information (4.27.23 Tr. 221). Witness #7 stated she is a teacher of a “speech and hearing handicapped.” She would need to be employed by a school to be a teacher (4.27.23 Tr. 224-225, 230).

Witness #7 invoiced the Parents for Speech-Language therapy (Exhibit X-1-7). Witness # 7 stated that she charges $200 per hour for her services and has charged the same amount for the last ten years (4.27.23 Tr. 217-218).

Witness #7 testified that the “sessions had a predictable format. We would start each session at my table. [The Student] would often have some snack or finish part of his lunch, because he often doesn't eat his lunch at school and while he would eat something, we would participate in conversation” (4.27.23 Tr. 204).

Witness #7 stated that the session “would always incorporate use of some manipulatives, for example, blocks or Magna-Tiles or plus-plus blocks, because [the Student] struggled to use any fine motor or manipulatives during his play and so I would make sure to give him some practice with that, and then we would work on symbolic play related to the formatic content that I had introduced. And at the end of each session, we would make an entry into his journal, where he would either draw or, in the early stages, contribute to a drawing related to the lesson and where he would begin to trace a letter related to the content that we had worked on” (4.27.23 Tr. 204-205). Witness #7 stated that the Student “struggled with graphical motor tasks, and so we would work on, either tracing or eventually drawing just a circle to add to a picture or drawing just a line to connect two dots, which was sort of the precursor to being able to trace the lines and the curves that make a letter.” The Witness did not testify how these various activities were within the ambit of speech and language therapy (4.27.23 Tr. 206-207). Case No. 238655

[Redacted]’s testimony. Director of [Redacted] Team Inc., Agency Providing Special Education Services (Witness #8)

Witness #8 is the owner of an agency providing special education services. She is a “school psychologist certified in New York State as a school psychologist and a building's principal.” Witness #8 has been supervising SEIT teachers for almost 20 years (4.27.23 Tr. 244-245). In March 2022, the Director of the Private Preschool referred the Parents to Witness #8. Witness #8 has a relationship with the Private Preschool based on her prior experiences and services rendered to students in that school (4.27.23 Tr. 285). The Private Preschool “was requesting some support for [the Student] in the classroom as he was having some difficulty in the classroom with his behavior, socializing, and meeting some academic expectations” (4.27.23 Tr. 245-246). Witness #8 is certified in DIR therapeutic intervention (individual differences relationship-based model) “[I]t's basically a therapeutic approach that joins the child, and it's based on relationships. So, assisting the child to establish relationships, meet their needs, coach families, provide support to children within the classroom setting that involves more wooing the child to the environment as opposed to trying to change the child or directly teach in a way that doesn't have meaning. So, if, if the teacher-, -- you know, teaching things that are more meaningful to the child. So, if the child has a particular interest, trying to get them to understand information through that interest as opposed to eliminating the interest” (4.27.23 Tr. 246-247).

Witness #8 assisted the Parent by (i) contacting the DOE to request a meeting with the CPSE, (ii) referring the Parents to Witness #5 for an evaluation of the Student; (iii) referring the Parent to a SEIT provider; (iv) providing SEIT providers for the Student from her agency; and (iv) working directly with the Student (4.27.23 Tr. 227-228).

A second SEIT was provided to the Student to work with him on a one-to-one basis in Witness #8’s office. Witness #8 testified that the additional SEIT was provided to the Student “based on the classroom teacher's concerns and the fact that he wasn't maintaining certain information in order to level the playing field within the classroom environment. He needed some one-to-one support in order to even participate in some of the activities that weren't able to be provided within the classroom setting at that time without removing him from the group too much” (4.27.23 Tr. 228-229). This SEIT works with the Student on Monday and Friday at 3:00 p.m.

Witness #8 sees the Student for floor time therapy on Friday before the Student sees the SEIT. The Student also receives speech therapy prior to one of the sessions with the SEIT. The SEIT rendering services in Witness #8’s office provides “pre-academics, like I wouldn't call it math, but it's, you know, counting, one-to-one correspondence, things that he's interested in, like insects Case No. 238655 and being able to write letters, you know, so, there's letter writing, there's letter identification, sound correspondence, rhyming, pre-math skills when it comes to counting things. Witness #8 testified that the afterschool SEIT services are “like remediation, I guess it could be called. Like it's, it's filling in his skills, it's providing -- because he has difficulty at times learning in a group setting. So, giving him the opportunity to, to, to learn something in a one-to-one and then apply it to the group has been beneficial with his neurobiological profile.” Witness #8 conceded that it would have been beneficial to the Student for the SEIT to push into the Private Preschool to administer the services, but her agency didn’t have the manpower to do so. She testified that there was a shortage of SEIT providers. The afterschool SEIT provision was in large part to accommodate a lack of personnel during the school day. “I would say that because there wasn't somebody available during the school day and he needed the support, the school would've been okay with us providing it within the school session, but I didn't have somebody during those hours, yes” (4.27.23 Tr. 287-289). The services provided by the afterschool SEIT provider are similar to the services provided by the inschool SEIT providers (4.27.23 Tr. 291-292).

In November 2022, Witness # 8 performed an observation of the Student due to concerns with his inability to maintain or he would be taught something and then he'd either lose the skill or not be able to maintain it. He had some behavioral eloping, like walking out of the classroom. Having really difficulty maintaining attention to tasks. His fine motor skills were extremely delayed as well. He couldn't participate in journals, so I was asked to come do an observation and provide some consultation to the classroom as well, like any modifications that they could make within the classroom environment. And then my recommendation was to increase some of his one-to-one support and his schedule was changed as well from being seen first thing in the morning to later in the day because as the day increased, the time he got more behavioral and less available towards the early afternoons. Witness #8 did not make a written report of her observation and findings. (4.27.23 Tr. 248). Witness #8 asked that the Private Preschool decrease their expectations of the Students so that he would not have to perform on the level of the other students in his classroom. Witness #8 then conferred with Witness #7 to have her do some of the classroom work with the Student (4.27.23 Tr. 250). Case No. 238655

Witness #8 testified how the Private Preschool additionally was not meeting the Students’ needs because the Student had some anxiety with some of the expectations due to his developmental delays. In addition, he was having difficulty lining up. He was talking to himself pretty frequently and scripting movie scenes... So, he was like scripting some movie scenes and he was having difficulty keeping his hands to himself. He's very polite, but he would politely try to touch other children, politely kind of poke, politely roll around on the floor, walk around. So, I, I provided them with recommendations about where he should stand, what he should have. As for transitional objects, the teacher asked me to observe a gym class because they had some difficulty with him in gym and the waiting expectations. So, I consulted with the gym teacher for a while and they said that that really improved my recommendations where, where he should stand, which -- when he should go, how he should be warned beforehand about what the expectation is. I asked -- I recommended they break up the children into two groups. Same with he would like walk out of the classroom, just walk out, providing them with a system that if he needed to go somewhere to check in with the teacher, that it was okay, that he needed a break or needed like a walk, but he needed to check in with the teacher first. So, to try to ask him what the problem was. That was my biggest advice (4.27.23 Tr. 251).

The Student continued to have difficulties in the Private Preschool, demonstrating oppositional behavior. Witness #8 recommended bringing a SEIT into the Private Preschool in December 2022 for additional hours with the Student (4.27.23 Tr. 252-253). The Student’s progress at the Private Preschool was inconsistent. I note that Witness #8’s recounting of the Student’s performance had to be relayed by third parties as she was not employed by the Private Preschool, nor did she observe him in the Private Preschool, except for the observation in November 2022. The lack of direct knowledge makes the testimony less reliable. Parent Representative’s question to Witness #8 confirms this fact: “Can you give me examples of some of the progress that's been reported or noted?” (4.27.23 Tr. 261-263). Witness #8 testified that the “progress that I told you about was more towards the spring. But essentially, [the Student] does require more support in the classroom. That's why I added additional hours for him. So, he receives 15 hours a week, and we're recommending 20 due to the fact that he still has some delays and areas that need intervention. And he has multiple areas with multiple delays that it's not possible to provide all that support and intervention and remediation within the ten hours that are allotted per week” (4.27.23 Tr. 265). When Case No. 238655 the Student is interested in the subject matter being taught, he is more attentive and engaged (4.27.23 Tr. 284).

Witness #8 provided DIR therapy to the Student in a group of no more than three (3) students “due to his rigidity, his lack of reciprocity, meaning that, you know, he's more in his own world. He doesn't allow opportunities for a back-and-forth conversation. His play was really restricted where it was more, you know, he would play with objects or collect and hoard them, but not actually have any play schemas or do anything with the objects. And he objected to the fact that you might, you know, have an idea or insert yourself in the play schema. Lots of, you know, anxiety and it, it included coaching to the family” (4.27.23 Tr. 266). According to Witness #8, the Parents “kind of just let him do what he wanted and didn't push him to provide more reciprocity in that play” (4.27.23 Tr. 266).

When the Student was observed by one of the SEIT providers from Witness #8’s agency in April 2023, the Student still was functioning at a preschool level. (4.27.23 Tr. 290-291).

[Redacted]’s testimony (Parent) (Witness #9)

At the first parent-teacher conference in the Private School in 11.2021, the teachers expressed concern regarding the Student’s:

• difficulty in transitioning from preferred to non-preferred activities

• sensory issues

• difficulty focusing on tasks

• difficulty completing tasks without teacher assistance

• difficulty in following two and three step instructions

• fine motor delays

• difficulty in grasping a pen or pencil or crayon

• little or no interest in drawing or tracing letters

• no pre-academic skills Case No. 238655

The Private School recommended that Parents have a neuropsychological report conducted, which report was conducted in 2.2022. The individual who conducted the evaluation did not discuss the results with the parents, but rather a colleague of the evaluator did so in or around 4.2022 (5.4.23 Tr. 10-12, 14; Exhibit I). Witness #9 stated that the evaluator’s colleague suggested the Parents “get him evaluated by the CPS[E] to see if he could qualify for services, including a SEIT, which she believed he would need if he were to enter kindergarten” (5.4.23 Tr. 13-14). Witness #9 wrote to the CPSE requesting an evaluation for the Student. She did not receive a response and went back to the Private School’s director for assistance, who referred her to a private provider, who said she could provide services to the Student, Witness #8. Witness #8 reached out to the CPSE on behalf of the Parent. The CPSE responded to Witness#8 (5.4.22 Tr.14-18; Exhibits BB, DD).

The CPSE convened a meeting on 6.27.22 attended by Witness #9, the Student’s father, and the Student’s speech and language therapist, Witness #7. Witness #9 provided the CPSE with the neuropsychological report. Witness #9 stated that she felt the speech and language evaluation conducted by the District did not fully reflect the Student’s difficulties with speech. Witness #9 testified that the CPSE team listened to the Parents’ concerns and agreed to a new SL evaluation (5.5.23 Tr. 19-20; Exhibit I). When Witness #9 was asked whether the DOE provided services during the summer, she replied no and added, “he was not eligible for services” (5.4.23 Tr.21; see also Exhibits II, 6 and 7). The Student went to camp during the summer, and the parents employed the same SEIT provider who had started to work with the Student in 5.2022 (during the 21-22 school year). Witness #9 changed her testimony to state that the SEIT provider first worked with the Student in 6.2022 (5.4.23 Tr. 21). Witness #7 has not conducted an evaluation of the Student nor have the Parents retained anyone else to conduct a speech-language evaluation although the psychologist, Witness #5, had recommended that such an evaluation be conducted (5.4.23 Tr. 4547).

Witness #9 enrolled the Student in kindergarten at their zoned school but thereafter, in 8.2022, signed a contract to enroll the Student in the Private Preschool he had attended the year before. Witness #9 testified that the Private Preschool “had really been very willing to work with us with services that [the Student] needed, without many questions about [the Student’s] behavior and the CPSE and the CSE process, which we were, of course, very unfamiliar with. So, we felt that that was a very appropriate program for [the Student] to be in at the time” (5.4.23 Tr.24-25; Exhibit M). Case No. 238655

Witness #9 can receive tuition reimbursement from her employer once the tuition is paid in full, which according to Witness #9 testimony, occurred on 5.3.23 (5.4.23 Tr. 25-27). Witness #9 did not know the specifics of the tuition reimbursement program but admitted that having the source of funding from her employer available to her made it an easier decision to enroll the Student in the Private Preschool 5.4.23 Tr. 39-43, 59-60). Witness #9’ s employer may also have a program that reimburses a parent for the cost of related services. Witness #9 did not have details but testified she will also look into that program (5.4.23 Tr. 63-64).

Witness #9 testified that after a pendency agreement was entered into with the DOE, the agreed-upon services were not implemented by the DOE, so she selected providers from the Private Hospital to provide PT and OT to the Student. Her insurance company paid the cost of the therapy; Parents were responsible for the co-pay (5.4.23 Tr. 27-30: Exhibit C). PT is provided only by the Private Hospital (5.4.23 Tr. 45). The Pendency order provided for the following services based upon an IEP dated 6.27.22 (Exhibit 5): (i) SEIT-10 hours each week for 10 months by [[Redacted]] [[Redacted]] Team, Inc.; (ii) OT-3 x 30 x 1 for 10 months; and (iii) PT-3 x 30 x1 for 10 months. Witness #8 found another OT provider who started working with the Student in 2.2023 and billed the District directly for her services. That OT provider (Witness #3) did not administer services as per the Pendency Order (5.4.23 Tr. 30-31). Some OT sessions are in the provider’s office and some are in the Private Preschool (5.4.23 Tr. 44). Witness #9 was not sure of the session length when the OT provider goes to the school to see the Student. The OT provider may be at the Private Preschool one day or two days each week, and the OT Provider may work with the Student in the classroom or outside of the classroom (5.4.23 Tr. 60-61).

Witness #9 also retained Witness #8, who “oversees the SEIT and team of therapists, working with [the Student] and provides us with the regular information, but she actually also sees [the Student] herself for one hour per week for play services play, play therapy, which is individual or in groups” (5.4.23 Tr. 32). Witness #9 stated that play therapy was recommended in the psychological evaluation (5.4.23 Tr. 34; Exhibit I).

SL Therapy is provided only out of school, in the provider’s office (5.4.23 Tr. 44-45). The Student is the only one in the classroom with a SEIT. The Private School does not offer OT, PT, and SL therapies. Nor does it have SEIT providers on staff (5.4.23 Tr. 61-62). Case No. 238655

Parents sought PT and OT services at the Private Hospital in or around 3.2022 or 4.2022 but those services did not begin until the summer as the Student was put on a waiting list. A SEIT who could provide 10 hours of service was found through Witness #8’s office (5.4.23 Tr.18).

Witness #9 stated that the Turning 5 IEP meeting was held for the Student on 11.15.22. Parents expressed their concern over the Student’s need for SL therapy and that the DOE should evaluate the Student in this area of suspected disability. Witness #9 testified that she disagreed with the recommendation made by the DOE in its IEP because “we could also see from [the Student’s] behaviors and aversion to picking up a pencil or drawing or writing or recognizing letters or counting, and the difficulty in transitions that he wasn’t ready for a kindergarten program that he would, it would not be appropriate for him he would not be able to learn. And that he really needed a classroom of a small size. And with one-on-one support.” The Parent opined that the Student needs a 12-month program because he “regresses in his behavior and what he learned when there is even a short break.” (5.4.23 Tr. 36).

Despite the Student being enrolled in the Private Preschool for another year, the Student is “still very much behind children of his age, both in terms of his ability to focus, his ability to complete tasks, his ability to, to dress himself to put things away in the classroom, to follow the two and three step directions, and that he still needs that really one-on-one full-on individual attention often to complete art projects or journaling or writing” (5.4.23 Tr.37). The Providers who are not in the classroom with the Student opined that he needed additional SEIT support in the classroom “to enable him to be in the classroom, and to learn in the, in the equivalent way that his other students were learning.” The SL and play time providers recommended that the Student have 20 hours of SEIT per week (5.4.23 Tr. 38).

Witness #9 testified that the OT and PT recommendations made on the IEP are appropriate for the Student. She does not know, however, if the services should be 30 minutes or 45 minutes (5.4.23 Tr. 49). Witness #9 said at the time of the IEP meeting in 11.2022, the teachers at the Private Preschool, the Student’s SEIT and Witness # 8 said the Student was not ready to enter kindergarten. As of 5.2022, the issue about his kindergarten readiness is “still to be determined” (5.4.23 Tr. 50-51, 54-55).

Witness #9 did not recollect how she found the neuropsychologist (5.4.23 Tr. 57-58). The Student attended summer camp at the Private School, which is within blocks of where the family Case No. 238655 resides, as is the Private Hospital where the Student receives PT and OT. The proximity in distance is also true for the playtime therapist and the SL therapist (5.4.23 Tr. 58). Witness #9 takes the Student out of school early on Mondays to go to his appointment with providers (5.4.23 Tr.59). During the summer because the family was traveling, the Student was not here in NYC for 2 ½ to 3 weeks and was not available to receive services. The Parent’s election to remove the Student from the summer program resulted in him regressing in certain areas (5.4.23 Tr. 62).

Considering the foregoing and as more fully discussed below, I find that a) the DOE conceded that it did not offer the Student a FAPE for the 2022-2023 school year; b) the Private School does not offer Student specially designed instruction sufficient to meet Student’s needs and c) the SEIT and certain related services, as discussed below, are appropriate components of the Student’s educational program.

Burden

School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in a parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement. ^[5]

Prong I

The IDEA provides that children with disabilities are entitled to a Free Appropriate Public Education ("FAPE").^[6] A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written Individualized Education Program (“IEP”).^[7] A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits.^[8] In order 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.” ^[9]

As to Prong I of the Burlington/Carter standard, the DOE failed to meet its burden at the hearing. Rather, the DOE Representative indicated on the record that DOE was not introducing any documents or presenting any witnesses. The District representative affirmatively conceded Prong 1 (Tr. 5, 7). Therefore, I am constrained to find that the DOE failed to offer the Student FAPE for the 2022-2023 school year.

Prong II

A private school placement must be "proper under the Act."^[10] This means that the private school must offer an educational program that meets the student's special education needs.^[11] Parents seeking reimbursement “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate.”^[12] Subject to certain limited exceptions, “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.” ^[13]

Parents need not show that the placement provides every special service necessary to maximize the student's potential.^[14] When determining whether a unilateral placement is appropriate, “[u]ltimately, the issue turns on” whether the placement is “reasonably calculated to enable the child to receive educational benefits.”^[15] A private placement is appropriate if it provides instruction specially designed to meet a student’s unique needs. ^[16]

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement. 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 benefits, 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. ^[17]

In the Parent’s closing brief, the Parent’s Representative requests “the following constellation of services for the 2021-2022 and 2022-2023 school years (including during the summer of 2022):

- Tuition at [Redacted] Preschool for the 10-month 2022-2023 school year (totaling

$28,500.00, with the total amount to be reimbursed to the parents, less any amounts otherwise reimbursed by the parent’s employer);

- 20 hours, per week, of 1:1 SEIT services, provided by [Redacted] Team, Inc., at a rate of

$185.00/hour (with all payments made directly to the provider);

- Speech-Language Therapy (“SLT”) (2x60, 1:1), provided by [Redacted] at a rate of $200.00 hour (with $5,000 to be reimbursed to the parents, and the balance paid directly to the provider)

- OT (3x30, 1:1), provided by [Redacted] at a rate of $110.00 per 30-minute session (with all payments made directly to the provider);

- OT (1x45, 1:1) and PT (1x45, 1:1), provided by [Redacted] and [Redacted], respectively, of the [Redacted], at a rate of $20.00/per session (i.e.: reimbursement for the copay required by the parents’ medical insurance, totaling $1,380.00).

- Counseling/ Play Therapy utilizing the DIR/Floortime methodology (1x60, 1:1), provided by [Redacted] at a rate of $200/hour (with $765.00 to be reimbursed to the parents, and the balance paid directly to the provider). (IHO Exhibit 9-3).

Parent’s Representative argues that “[t[he services arranged for by his parents thus differed from those mandated under pendency, to best meet [the Student’s] current needs” (IHO Exhibit 9-2-3). It is Parent’s burden to show that the educational program selected by the Parent is appropriate to meet the Student’s needs.

Relief not requested in DPC

Parent’s Representative filed three DPCs in this matter requesting relief for the 22-23 school year (Exhibits A-1,3-4, B-1,4, and AA-1,6). The relief sought by Parent was confirmed in emails and at conferences (IHO Exhibits 1, 2,3, 4, 5, and 6). Parent’s relief was confirmed at the beginning of the hearing (4.25.23 Tr.7-8,10, 19-21). Notwithstanding these protracted efforts for clarity, in Parent’s Closing Statement and Memorandum of Law, Parent’s Representative states that Parent “seeks an order mandating that the DOE continue to provide and/or reimburse the amounts paid by the family for the following constellation of services for the 2021-2022 and 2022-2023 school years (including during the summer of 2022” (IHO Exhibit 9-3). Notably, Parent fails to allege and address, in either its three complaints at the hearing or in its closing summation, how the DOE denied the Student FAPE for the 21-22 school year. In addition, Parent fails to identify what specific relief is sought for the 21-22 school year (IHO Exhibit 9-7, 27). This lack of clarity has been pervasive throughout the proceeding, making this case unnecessarily protracted. I note that the Parent’s Representative stated: “Well, this hearing is about the 2022 to 2023 school year. It's not another school year” (4.25.23 Tr. 131).

The scope of the impartial hearing is limited to the issues raised in the DPC. Any issues or allegations not contained within the four corners of this complaint are not to be considered. 18

Legal issues not addressed by Parent and the District

Several legal issues regarding a kindergarten-age child attending preschool were raised at the hearing, and a directive was to brief these issues. It appears the parties elected not to comply with the directive of this tribunal (IHO Exhibits 8 and 9).

This is being presented as a prekindergarten program when the student is -- isn't -- is at kindergarten age. And I -- while many, many cases do involve students that are somewhat below grade level, I, I do think that when it comes to the 8 NYCRR 200.5 (j)(l)(ii), 20 U.S.C. 1415 (F) (3)(b), B.P. v. New York City Dep’t of Educ., 841 F. Supp. 2d 605, 611 (E.D.N.Y. 2012); R.C. ex rel. M.C. v. Byram Hills School Dist., No. 11 Civ. 3938, 2012 WL 5862736, p. 11 (S.D.N.Y. Nov. 2012). Case No. 238655 difference between prekindergarten and kindergarten, I, I think that that is something that we need to hear as a part of the parent's burden in this case, in terms of the student being enrolled for prekindergarten during, during his kindergarten year (4.25.23 Tr.11)(District Representative).

And there is case law that says when a pre-K program is determined to be appropriate for a kindergarten age student, and SEIT services are going to be provided, and related services are going to be provided, we look at whether there is a need for those services to be implemented in conjunction with the pre-K program. And if so, it is a reimbursable expense. And at our closing, we will provide the necessary case law and support

(4.25.23 Tr. 16) (Parent’s Representative).

I don't think the parents can be faulted for that, and I think the case will support what the parents have done in this instance (Tr.4.25.23 Tr.18)

(Parent’s Representative).

“There are number of legal issues, one was raised initially by Parent’s Representative on the first day of the hearing about a pre-K program not being appropriate. A pre -- a pre-K program being appropriate for a student who is of kindergarten age. So certainly, I want you to brief that give me case law in that [Parent’s representative] because I understand that’s part of your argument, as you stated on the first day (Tr. 5.4.23 65-66).

No showing that a 12-month program was warranted for the 2022-2023 school year Parent’s Representative states that “parents further seek an order requiring the DOE to be responsible for the costs of [the Student’s] twelve-month (extended school year) educational program” (IHO Exhibit 9-2). Parent’s Representative did not cite any law to support the request. ^[19] The Student turned five on 10.5.22, and a Turning-5 meeting was held on 11.15.22. The CSE team recommended that the Student attend kindergarten in an ICT class with support from SETTS and related services (Exhibit 7-18-19). During the hearing, Witness #9 was asked whether the DOE provided services during the summer. She replied no and added, “he was not eligible for services” (5.4.23 Tr.21; see also Exhibits II-1-2 and 6 and 7).

The facts of the case do not support a twelve-month program. Both IEPs for the Student recommended a ten-month program (Exhibits 6-13 and 7-20). The Parent agreed with the 6.22 IEP (Exhibit 6). The Student went to camp during the summer, and the Parents employed the same SEIT provider who had started to work with the Student on 6.27.22 (5.4.23 Tr. 21). The Parent opined that the Student needs a 12-month program because he “regresses in his behavior and what he learned when there is even a short break.” (5.4.23 Tr. 36). However, Parent did not enroll him in an educational program for the summer in 2022. In addition, as testified to by the providers, the Student did not receive services during a significant part of the summer because the Parents chose to travel with the Student [12-month special services and/or programs in accordance with their need to prevent substantial regression. Requires July/August programs to operate for at least 30 days Approved July and August programs must operate for six weeks and shall be funded for 30 days of service. See Ed L§§4402(2)(a), 4403(17); 4410(5)(h). 8 NYCRR §200.1(aaa); 200.1(eee); 200.6(k); 200.16(i)(3)(v) Ed. L. §4408(1)].

Extended school year services are defined as:

"special education and related services that (1) [a]re provided to a child with a disability . . . [b]eyond the normal school year of the public agency; . . . [i]n accordance with the child's IEP; and . . . [a]t no cost to the parents of the child; and

(2) [m]eet the standards of the [state education agency]."

34 C.F.R. § 300.106. [*49] Students are entitled to ESY services if "because of their disabilities, [they] exhibit the need for a 12-month service and/or program provided in a structured learning environment of up to 12 months duration in order to prevent substantial regression." 8 N.Y.C.C.R.R. 200.6(k)(1)(v) . Substantial regression is defined as: a student's inability to maintain developmental levels due to a loss of skill or knowledge during the months of July and August of such severity as to require an inordinate period of review at the beginning of the school year to reestablish and maintain IEP goals and objectives mastered at the end of the previous school year. 8 N.Y.C.C.R.R. 200.1(aaa) (emphasis added).” ^[20]

While Parent has produced some evidence of regression, she has failed to produce any evidence that the Student’s regression was atypical—that his academic skills would regress after summer vacation or another extended break to the point that they could not be recouped in twentyto-forty school days. (Extended School Year Programs and Services Questions and Answers,"http://www.p12.nysed.gov/specialed/finance/2011QA.pdf (emphasis added); see also Application of a Child with a Disability, Appeal No. 08-078, at 21-22; Application of a Child with a Disability, Appeal No. 07-089, at 8 n.3. Id.)

The burden of production rests with the parent of the child seeking the extended school year. 21 Parent’s Representative provides no legal support for Parent’s request for an extended school year (See Exhibit AA-2 and IHO Exhibit 9).

The Parent agreed with the recommendations in the 6.27.22 IEP, which recommended a 10month program (“The parents assert pendency in the CPSE IEP dated 6/27/2022, in which the DOE agrees that the student is a student with a disability and recommends a level of service to address those needs.”) (Exhibit G-17).

Witness #5 did not see the need for a program outside the ten-month school year, except for psychotherapy (4.25.23 Tr. 127-128).

Accordingly, neither the facts nor the law support Parent’s request for a twelve-month program for the Student.

Private Pre-School was not an appropriate educational program for the Student

In September 2021, the Student began attending the Private Preschool, where he was placed in a classroom with a 13:2 student-to-teacher ratio. Although the Parent’s psychologist recommended that the Student be placed in a small classroom he remained in the 13-2 classroom throughout the 2021-2022 school year (Exhibit I-3).

The Private Preschool’s curriculum is not geared toward a student with special needs. The description of the program the Student was in was described as follows:

Our Fours program prepares children for kindergarten by incorporating critical thinking, creativity, socialization, early

See Brennan v. Reg'l Sch. Dist. No.1 Bd. of Educ., 531 F. Supp. 2d 245, 273 (D. Conn. 2008) Case No. 238655 literacy, math and science concepts. Children continue to develop a sense of identity and self-image, while navigating their classroom environment and social interactions.

Children gain pre-literacy skills through a wide variety of books, narration, and storytelling. Creativity and fine motor skills are fostered as children use writing utensils, scissors and easels for drawing and dictating their thoughts.

Concrete, developmentally appropriate activities further develop skills in numbers and operations. Science experiments are planned to assist children in developing critical thinking skills.

Workshop provides opportunities for analysis and communication within a framework of cooperation and socialization. Teachers support each child's development while promoting opportunities for both independence and collaboration. (Exhibit J).

The Student is the only one in the class with a SEIT. No other student has a one-to-one paraprofessional nor a SEIT (4.25.23 Tr. 150). The Student’s head teacher is not a special education teacher (Exhibit WW-1). The Private Preschool does not have any related service providers or SEITs on its staff. Witness #5 recommended that the Student “be grouped with peers both of whom are developmentally similar to him, as well as peers who display generally age-appropriate developmental levels” (IHO Exhibit I-15). Parent did not submit any evidence showing that the Student’s classroom in the Private Preschool had peers of the Student who were developmentally like him.

The Student leaves the Private Preschool one hour prior to the end of the school day every Monday to attend a therapy session (4.27.23 Tr. 168). This early departure, a voluntary election by Parent, compromises the integrity of the Private Preschool program and highlights that it does not meet the Student’s needs. It appears that Parent selected the Private Preschool because of familiarity and comfort. Witness #9 testified that the Private Preschool “had really been very willing to work with us with services that [the Student] need, without many questions about [the Student’s] behavior and the CPSE and the CSE process, which we were, of course, very unfamiliar with. So, we felt that that was a very appropriate program for [the Student] to be in at the time” (5.4.23 Tr.24-25; Exhibit M). Case No. 238655

Witness #1 testified that when she or the other SEIT is not in the classroom, the teachers have told her that the Student “gets very distracted and her does not know what to do next. It’s very difficult for him to work independently, as he needs someone to sit with him and provide significant 1:1 support and modifications when necessary” (Exhibit VV-3). Parent was aware of the Student’s challenges since 2.2022, when she had the Student evaluated. The Student’s “level of language for his age was fairly typical.” The Student had “a higher level of activity and difficulty staying seated for structured tasks” (4.25.23 Tr. 115). The Student “is very self-directed so he is less likely to attend to something if it's not something that that he's interested in” (4.25.23 Tr.116). The Student has inconsistent regulation and attention. He has the need to get up and move. (4.25.23 Tr. 118). Witness # 5 recommended that the Student have a speech and language and physical therapy evaluations. She also recommended psychotherapy and occupational therapy for the Student (4.25.23 Tr.120-121, 125).

In addition, Witness #5 recommended “DIR/Floortime. The recommendation made by Witness #5 was to bring out the maximum potential of the Student. Witness #5 did not recommend a class size but opined that support in the classroom to redirect the Student was the more important factor (“it's more important that he gets the one-on-one support from a SEIT and that there's enough staff members in the room to be able to redirect him when needed. The Student’s delays are neurodevelopmental, but his diagnosis, according to Witness #5, was developmental coordination disorder, a disorder of motor skills. “So weaknesses in running, in fine motor skills, being able to just integrate your movements and to not be clumsy.”) (4.25.23 Tr. 138). These delays were noted in the PT and OT evaluations dated 6.3.22 and 6.13.22 conducted by a third-party provider on behalf of the DOE (Exhibits 1 and 2). The Student's progress is relatively stagnant when reviewing these reports regarding the Student’s capabilities alongside the reports from the Private Preschool and related service providers.

In March 2022, the Director of the Private Preschool referred the Parents to Witness #8. Witness #8 has a relationship with the Private Preschool based on her prior experiences and services rendered to students in that school (4.27.23 Tr. 285). Witness # 8 testified that the Private Preschool “was requesting some support for [the Student] in the classroom as he was having some difficulty in the classroom with his behavior, socializing and meeting some academic expectations” (4.27.23 Tr. 245-246). Case No. 238655

When the Student was observed by one of the SEIT providers from Witness #8’s agency in April 2023 the Student still was functioning at a preschool level. (4.27.23 Tr. 290-291).

Witness #7 opined that the Student was not ready to enter kindergarten and provided the following conclusions as the Student’s speech and language pathologist:

I would expect him to be able to be in classroom and participate in a group activity -- many different kinds of group activities, a group play activity, a group story, a group project, a group discussion. I would expect him to be able to answer comprehension questions about a story that the teacher reads aloud to the class. I would expect him to be able to be in a back-and-forth conversation with his teachers and his peers about personally, relevant experiences. For example, if he went on holiday with his parents, I would expect him to be able to say where he went or what he did after an experience like that. I would expect him to be able to transition between activities when I expected, without behavioral issues, tantrums. I would expect him to be able to demonstrate that he is in the process of learning some letters. So, he would not need to know all of the letters in the alphabet necessarily, but he should be steadily gaining skills in the area of pre-literacy. I would expect him to be able to generate words that rhyme with other words. I would expect him to be able to know the sound that certain consonant letters make. I would expect him to be able to draw a symbolic drawing, draw a picture of a person that is recognizable. I would expect him to participate in simple table-based projects, where he might have to cut and glue or color.

Witness #7 also testified that the Student had none of these skills (4.27.23 Tr. 207-208). There was no testimony by any of the nine witnesses presented by Parent that at the end of the 2022-2023 school year, the Student had mastered these skills, despite being in the same Private Preschool for two years.

In November of 2022 Witness #8 performed an observation of the Student in the Private Preschool. After that observation, Witness #8 asked that the Private Preschool decrease their expectations of the Students so that he would not have to perform on the level of the other students in his classroom (4.27.23 Tr. 250). Witness #8 testified that the Private Preschool was not meeting the Student’s needs (4.27.23 Tr.251). Clearly, the Private Preschool did not have the personnel to identify and address the Student’s challenges. Case No. 238655

The District argues that the Private Pre-School is not appropriate:

[T]he Parent is seeking a combination of remedies that seem to contradict the need for one another. A unilateral placement is intended to be appropriate to meet the needs of a Student. As such, the Parent should be seeking either tuition at the [Private Pre-School] or a combination of supplementary supports, but not at the same time. If [the Private Pre-School] is appropriate, outside OT and PT services should not be necessary. Similarly, if these services are needed by the Student, [the Private Pre-School] does not meet the standard of appropriateness (IHO Exhibit 8-

3-4).

The District further argues that Parent’s representative, “in her opening, actually argued against [the Private Pre-School’s] appropriateness on her own:

“The parents are not like the Department of Education. They do not have the ability to start a school, staff a school, and create a school that will meet their child’s needs.

They have to acquire what they can in the marketplace. In the particular matter at hand, as late as July, the parents were hoping that the Committee on Special Education would be offering some sort of program. They didn’t. On August 7th, they signed a contract for the preschool program, and they did what they had to do to create a program for their child.”

Tr. 4/25/23 at 18 (IHO Exhibit 8-10).

Parent’s Representative argues that the “constellation of educational services” provided by the Parent “appropriately addresses his needs, by providing him with the special education instruction and supports necessary to allow [the Student] to learn in the least restrictive environment, on a 12-month basis. When parents unilaterally place their child in a private program and seek funding and/or reimbursement for that program, they must demonstrate that the program they have selected is appropriate to meet their child’s needs (IHO Exhibit 9-9-10).

The Private Pre-School did not meet the needs of the Student. He needed support from the SEITs to access the curriculum and make progress (Exhibit VV, 4.25.23 Tr. 146-149, 172-173). On 11.1.22, the Student’s teacher filled out a progress report for the DOE. That report included the following possible annual goals for the Student: (1) Know the alphabet, (2) Count to 20, and

(3) Follow multi-step directions (Exhibit 4-3). Witness #6’s testimony demonstrates that the Student did not meet these goals.

Witness #6 stated that without the support of SEIT, the Student loses focus and requires reminders and prompts from herself and the assistant. The progress noted by Witness #6 was due to the Student “attempting to write more letters and is continuing to work on writing his name Case No. 238655 consistently. His letter identification at the beginning of the school year was around four letters and now it is at 18. [the Student] can now identify the numbers 1-10 with accuracy, consistently” (Exhibit WW-3).

The Student had attended the Private Preschool during the 2021-2022 school year. The Director of the Private Preschool determined that the Student was not ready to enter kindergarten. The Parent’s decision to repeat a non-specialized program that had not (i) advanced the Student’s education/skills to make him kindergarten ready; and (ii) been able to provide him with SEIT support or address his related services needs in OT and PT, cannot be countenanced by this tribunal as appropriate. Simply stated, the Private-Preschool was not an appropriate educational program for the Student. As 05.4.22 when Parent testified at the hearing, she stated that the issue about his kindergarten readiness is “still to be determined” (5.4.23 Tr. 50-51, 54-55).

Indeed, some courts have recognized that while evidence of the general educational milieu in a unilateral placement can be relevant for purposes of awarding tuition reimbursement, and in some cases may constitute special education, that such considerations nonetheless do not abrogate the requirement that the appropriateness of a unilateral placement continues to rest on a finding of specialized instruction which addresses a student's unique needs. ^[22]

As set forth above, the elements of the program at the Private Preschool did not align with the Student's needs. Parent is not entitled to reimbursement for the cost of the tuition for the Private Preschool.

Related Services

The District argues “the Parent should be seeking either tuition at [the Private Preschool] or a combination of supplementary supports, but not at the same time. If [the Private Preschool] is appropriate, outside OT and PT services should not be necessary. Similarly, if these services are needed by the Student, [the Private Preschool] does not meet the standard of appropriateness” (IHO Exhibit 8-3-4).

In reaching the below determinations I have considered the testimony referenced above and note the Student’s sensory seeking behaviors, requiring a higher level of movement and difficulty staying seated for structured tasks (4.25.23 Tr. 116). I also considered the age of the Student, Parent’s decision to take the Student out of the Private Preschool early one day each week to accommodate the Student having related services, and the consequential extended day of Student’s educational program by virtue of the Private Preschool not providing any related services.

The following related services, except as otherwise noted, were appropriate for the Student to make meaningful progress.

Speech and Language Therapy

The psychologist retained by Parent, Witness #5, did not recommend the Student for speech and language therapy. Witness #5 recommended that a speech and language evaluation be conducted. Thereafter, the DOE conducted a speech and language evaluation on 6.1.22 (IHO Exhibit GG). The SL evaluator had the Parent fill out a question and she had an informational interview with her by telephone. The evaluator also conducted formal assessments, a clinical observation, and a play assessment of the Student (Exhibit GG-1). The SL evaluator made the following findings:

• Auditory Comprehension: Based on the PLS-5, the Student presented with average receptive language skills. Based on formal evaluation, parent report, evaluator observation, and informed clinical opinion, he does not present with delays in this area.

• Expressive Language: Based on the formal assessment of the PLS-5, parent report, evaluator observation, and informed clinical opinion the Student presents with average skills in his expressive language. He is functioning at an age-appropriate level compared to students of the same age.

• Articulation/Phonology: It is judged that his phonological development is average for production of English speech sounds in words and in connected speech relative to his same age peers.

• Pragmatic Language: Based on the Speech and Language Development Chart (2nd Edition), parent report, evaluator observation, and informed clinical opinion, the Student presented with age-appropriate pragmatic language skills. Case No. 238655

• Voice/fluency: The Student produced consistent vocalizations throughout the evaluation in which it was determined that his voice and fluency were within normal limits for his age. The parameters of pitch, loudness, and rate of forward flow of speech are judged to be within normal limits.

• Oral Peripheral Speech Mechanism: Gross examination of the oral-peripheral speech mechanism revealed all structures to be within typical limits in symmetry, size, shape, and function.

• Hearing: There are no reported concerns with hearing skills. His last hearing test was conducted at his annual check-up, which revealed that his hearing is within normal limits.

• Results of the speech and language assessment using formal testing, observation, parent report, and informed clinical opinion indicate that [the Student] presents with average speech and language skills (Exhibit GG-4-7).

Witness #7 provided the Student with what she labels speech and language therapy for two hours each week. It appears that the Student had to leave the Private Preschool early to avail himself of SL therapy once each week. Witness #7’s testimony and report showed she was engaging in services beyond speech and language (Exhibit V-1). There was no showing, other than Witness #7’s testimony that her services were warranted. It is also unclear how much time of the two hours each week was devoted to speech and language therapy.

Witness #7 testified that the “sessions had a predictable format. We would start each session at my table. [The Student] would often have some snack or finish part of his lunch, because he often doesn't eat his lunch at school and while he would eat something, we would participate in conversation” (4.27.23 Tr. 204). Witness #7 stated that the Student required an extended period of play each session on initiation of therapy. The Student “could tolerate clinician-directed activities only briefly and would disengage with the clinician and instead engage in self-directed, fantasy talk/play if more demands than he could tolerate were placed” (Exhibit V-2).

Witness #7 stated that the session “would always incorporate use of some manipulatives, for example, blocks or Magna-Tiles or plus-plus blocks, because [the Student] struggled to use any fine motor or manipulatives during his play and so I would make sure to give him some practice with that and then we would work on symbolic play related to the formatic content that I had introduced. And at the end of each session, we would make an entry into his journal, where he would either, draw or in the early stages, contribute to a drawing related to the lesson and where he would begin to trace a letter, related to the content that we had worked on” (4.27.23 Tr. 204-205). Witness #7 stated that the Student “struggled with graphical motor tasks and so we would work on, either Case No. 238655 tracing or eventually drawing just a circle to add to a picture or drawing just a line to connect two dots, which was sort of the precursor to being able to trace the lines and the curves that make a letter.” The Witness did not testify how these various activities were within the ambit of speech and language therapy (4.27.23 Tr. 206-207, Exhibit V-2).

Witness #7 was providing services duplicative to those provided by the two SEIT providers and the PT and OT providers. It also appears that she was engaging in play therapy, the service provided by Witness #8. 23

Parent’s Representative asked Witness #7 questions outside her area of expertise and that service for which she was retained. For example, Parent’s representative asked Witness #7, a fact witness, not qualified by Parent’s Representative as an expert in any field, whether she had an opinion on whether the Student was ready to enter kindergarten for the fall of 2022. Witness #7 opined that the Student was not ready to enter kindergarten and provided the conclusions as the Student’s speech and language pathologist that the Student did not have the skills one would expect of a preschooler who is turning five and about to enter kindergarten.

I found that Witness #7’s testimony was often exaggerated, and her demeanor exhibited a certain arrogance.^[24] Although on direct examination Witness #7 testified extensively about what she perceived as the deficiencies of the speech evaluation (Exhibit GG) when asked on crossexamination if she answered questions regarding her “opinion about that evaluation,” she responded “when?” (4.27.23 Tr. 222). During the hearing, I expressed my frustration with Witness #7’s inability to answer the question asked. ^[25]

23 Among the factors that may warrant a reduction based on equitable considerations is whether the frequency of the services or the cost for the services was excessive (M.C., 226 F.3d at 68; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]; L.K., 674 Fed. App'x at 101; E.M., 758 F.3d at 461 [noting that whether the amount of the private school tuition was reasonable is one factor relevant to equitable considerations]). The IHO may consider evidence regarding whether the rate charged by the private school or agency was unreasonable or regarding any segregable costs charged by the private school or agency that exceed the level that the student required to receive a FAPE (see L.K. v. New York City Dep't of Educ., 2016 WL 899321, at *7 [S.D.N.Y. Mar. 1, 2016], aff'd in part, 674 Fed. App'x 100). Case No. 238655

Witness #7 testified that as a general practice she does not make recommendations for a student in “areas that [she is] not instructing the student, specifically, PT, OT and SEIT” (4.27.23 Tr. 237). Yet, she deviated from her general practice and did so in her report here dated 1.15.23. There was no updated progress report for the second semester (Exhibit V). Witness #7 criticized that the DOE did not perform an updated speech and language evaluation (Exhibit GG) yet she did not conduct her own evaluation, despite the recommendation of the Parent’s psychologist in February 22 (Exhibit I-17).

Based on the foregoing, the services rendered by Witness #7 were not an appropriate component of the Student’s educational program and are not compensable.

SEIT

I find that the services rendered by the SEIT, Witness #1, for 8 hours each week, as described at pages 11 and 12 of this FOFD was an appropriate component of the Student’s educational program. The Student’s need for 1:1 support was well documented and Witness #1’s testimony was fully credible. Witness #1 addressed the Student’s academic and behavioral challenges (Exhibit VV; 4.25.23 Tr. 50-58,149-151). There is a second SEIT who comes to the Private Preschool for three hours each week for a total of 11 hours per week of in classroom SEIT services.

The individual providing three hours of SEIT services under the auspices of Witness #8 after school on Monday and Friday did not testify. It appears that additional SEIT services may have been required for the Student in the Private Preschool but because the SEIT did not have time during the school day she provided services to the Student at 3:00 p.m. on two days in the office of Witness # 8. This unnecessarily extended the school day for the 5-year-old Student and deprived him of the one-to-one support needed in the classroom to participate in academics and activities (4.27.23 Tr. 228-229). The testimony showed that support was critical in the classroom. This additional SEIT was provided to the Student to work with him on a one-to-one basis in Witness # 8’s office. Witness #8 testified that the additional SEIT was provided to the Student “based on the classroom teacher's concerns and the fact that he wasn't maintaining certain information in order to level the playing field within the classroom environment. He needed some one-to-one support in order to even participate in some of the activities that weren't able to be provided within the Case No. 238655 classroom setting at that time without removing him from the group too much” (4.27.23 Tr. 228229).

The SEIT services were not delivered in the classroom at the Private Preschool, the venue where needed, but after school at the provider’s availability. These additional hours of after-school SEIT services were not an appropriate component of the Student’s educational program.

Notably, Witness #5 conceded that to make recommendations for the 2022-2023 school year as to SEIT services she would need updated information. “I don't know that I'd be able to speak to the level of support in September, again, without having an update on his progress between February and September” (4.25.23 Tr. 129-131).

Physical Therapy

As the Private Preschool did not have an PT Provider to address the Student’s needs I find that the services provided by Witness #3, the PT therapist, both in the Private Preschool and at her sensory gym were an appropriate component of the Student’s educational program (Exhibit XX and 4.25.23 Tr.81-92). Witness #3 provided services based on the IEP and her clinical observations (4.25.23 Tr. 83-85, 87-88; Exhibit XX-1). Witness #3 opined: the Student “has made fair progress. [The Student] is able to recognize all the upper-case letters. He is attempting to write all the straightlined letters and O and Q with minimal cues. [The Student] is now able to write a few upper-case letters E, F, L, T, H, I and O and Q with significant cues and encouragement and sensory input to participate in the activity” (Exhibit XX-2).

Counseling/Playtime Therapeutic Services

The counseling/DIR/Floortime therapeutic services provided by Witness #8 for the Student are once weekly for 30 minutes, in a 1:1 setting and a 30-minute group session with another student for a total of one hour, per week. (4/27/23 T. 268-270) Sessions focus on addressing the Student’s “rigidity, his lack of reciprocity,” his restricted play, and his anxiety. (4/27/23 T. 266) The Student is now more interested in other children and less self-directed than before. (4/27/23 T. 263). The therapy targets the Student’s deficits in social communication, attention, and regulation (4.25.23 Tr.137). Therefore, I find these services to be compensable. Case No. 238655

Relief for services administered at the Private Hospital is Denied

The testimony from the two providers from the Private Hospital was unequivocal that the services were medically based out-patient services. The testimony did not provide any connection to the educational process or the issues being addressed in the Private Pre-School. Witness #2 was not familiar with, nor had she spoken with any other OT provider for the Student (4.25.23 Tr. 70). Witness #2 was very clear that she could not “speak to his school-based service. I only provide medically based outpatient services” (4.25.23 Tr. 72).

Witness #4 sees the Student as a patient one time each week on Thursdays from 3:15 p.m.4:00 p.m. for a 45-minute session at the Private Hospital (4.25.23 Tr. 95-96, 98-99). Witness #4 can only speak to the Student’s need from the medical model. Witness #4 testified as to what constitutes the medical model: “often a child receiving PT under an educational model is working towards function within the school setting, the classroom setting and, and things of that nature, where in a medical model, we're working towards specific goals to improve function in his daily routine, as well as the community setting.” The medical model may or may not overlap with the educational model. The medical model may exceed or may enhance that which is within the educational model Witness #4 could not speak to her patient’s [the Student’s] needs under the educational model. The providers at the Private Hospital only provide services under the medical model (4.25.23 Tr.101103). Witness # 4 had not seen the Student’s IEP (4.25.23 Tr.99-100).

Generally speaking, the provision of FAPE itself does not require a school district to design an educational program intended to address a student's difficulties in generalizing skills to other environments outside of the school environment, particularly in cases in which it is determined that the student is otherwise likely to make progress in the classroom.^[26] Otherwise, such programming must offer an educational benefit as provided in Frank. G. ^[27]

The Parent’s request to reimburse the co-pays for medical services provided at the Private Hospital is beyond the obligation of the DOE; such relief is more than that required under FAPE. In L.K., the Second Circuit, when considering the appropriateness of reimbursement for at-home services, held that the school district does not have an obligation to provide for such services as a result of any failure to provide FAPE.^[28] Otherwise, well established precedent has held that the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP."^[29] The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents."^[30] The IDEA provides for a “program that provides a basic floor of opportunity” rather than one that provides an “optimal programmatic alternative.” 31 Additionally, school districts are not required to "maximize" the potential of students with disabilities. 32

Accordingly, Parent’s request for the reimbursement of co-pays paid under its insurance plan for those services rendered by the Private Hospital’s providers (Witnesses #2 and #4) is denied.

Equities

Even if a parent establishes a right to reimbursement under the IDEA, “courts retain discretion to reduce the amount of a reimbursement award if the equities so warrant.” 33 In making that equitable determination, a hearing officer may consider many factors, including, inter alia, whether a parent’s unilateral withdrawal of her child from the public school was justified, whether the parent provided the Department with adequate notice of the withdrawal, whether the amount of private-school tuition was reasonable, whether the parent should have availed herself of need-based scholarships or other financial aid from the private school, and whether there was any fraud or collusion in generating (or inflating) the tuition to be charged to the Department, or whether the arrangement with the school was fraudulent or collusive in any other respect. 34

There is no evidence that the Parent obstructed or was uncooperative in the District’s efforts to meet its obligations under the IDEA. The DOE did not present evidence that the Parent hindered its efforts to provide the Student a FAPE. At all times, the Parent’s efforts appeared genuine, even if they did not result in putting together an educational program appropriate to meet the Student’s needs.

Parents contacted two different representatives at the CPSE three times in the spring of 2022 (on 3.23.22, 3.30.22, and 4.7.22). The CPSE failed to respond to the Parent (Exhibits BB, CC, DD; 5.4.23 Tr.15-17). It was not until Witness #6 contacted the CPSE on Parents’ behalf that any response was provided (Exhibits EE; 5.4.23 Tr.18) The CPSE thereafter convened an IEP meeting for the Student on 6.27.22 (Exhibit 6-1). The Student aged out of preschool aged special education services on 6.27.22 and the Parents were notified of such (Exhibit II-1-2). The school aged CSE then convened on 11.12.22 (Exhibit 7). Parent disagreed with those recommendations and filed a DPC.

It does not appear that Parent provided timely notice to the CSE of her intent to enroll the Student at the Private Preschool and seek payment of the tuition from the DOE for the 2022-2023 school year. Parent’s Representative does not make such claim in the closing summation and brief (IHO Exhibit 9). Notwithstanding, the relief awarded to the Parent shall not be reduced.

The undersigned has reviewed the parent’s remaining contentions and find them to be either unnecessary to this decision, without merit, beyond my jurisdiction, too vague to be of use, or without sufficient basis in the record for a finding and award of relief. Accordingly, any relief not specifically discussed in this decision is denied, and all the Parent’s remaining claims not discussed herein are dismissed.

I do note that although not awarded, tuition may be reimbursed, in part or full, by the Parent’s employer (5.4.23 Tr. 2527, 39-43). Case No. 238655

ORDER

NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS

HEREBY ORDERED THAT:

(1) Parent’s claim for tuition funding for the Private Preschool for the 10-month 2022- 2023 school year in the amount of $28,500.00 for the Student’s unilateral placement, is DENIED.

(2) Parent’s claim for funding/reimbursement of occupational therapy (3 x 30, 1:1)

provided by Witness #3 at a rate of $110.00 per 30-minute session is GRANTED for the 2022-2023 ten-month school year (minus any payments made through pendency);

(3) Parent’s claim for funding of speech and language therapy (2 x 60, 1:1) is DENIED.

(4) Parent’s claim for reimbursement of co-pays for medical therapies in the amount of

$1,380.00, administered by Witness #2 and Witness # 4 at the Private Hospital is

DENIED.

(5) Parent’s claim for funding/reimbursement of counseling/play therapy utilizing the DIR/Floortime methodology (1 x 60) at a rate of $200.00 per hour is GRANTED for the 10-month 2022-2023 school year (minus any payments made through pendency) and Parent is to be reimbursed $765.00 upon submission of proof of said payment to the DOE for such services.

(6) Parent’s claim for funding/reimbursement of SEIT services for the Student administered in the classroom for the ten-month 2022-2023 school year at the Private Preschool totaling 11 hours each week at the rate of $185.00 per hour is GRANTED (minus any payments made through pendency). Case No. 238655

(7) Parent’s claim for funding/reimbursement of SEIT services provided afterschool for the Student is DENIED.

Dated: July 28, 2023

_____________________

Michelle S. Babbitt

Impartial Hearing Officer Case No. 238655

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. Case No. 238655

DISTRICT EVIDENCE

Exhibit Title Date Pages

1 Occupational Therapy Evaluation 6.13.22 6

2 Physical Therapy Evaluation 6.3.22 4

3 Classroom Observation 5.31.22 3

4 Teacher’s Progress Report 11.1.22 3

5 Social history Evaluation 5.21.22 3

6 Individualized Education Program 6.7.22 15

7 Individualized Education Program 11.15.22 26

PARENT EVIDENCE

Exhibit Title Date Pages

A Due Process Complaint 9.6.22 5

B Second Due Process Complaint 10.19.22 7

C Pendency Implementation Form 11.13.22 2

D Requested Impartial Hearing Request - Not Accepted 10.10.22 6

E Requested DPC Amendment Email Thread Misc. 5

F Additional Relief Email Thread Misc. 18

G Pendency Email Thread Misc. 21

H Recusal Email Thread Misc. 9 Case No. 238655

I Psychological Evaluation 1.25.22, 20

1.28.22,

2.1.22,.2.5.22

J [Redacted] Preschool Program Description Undated 1

K [Redacted] Preschool Schedule Undated 1

L [Redacted] Preschool Progress Report 11.1.22 3 M [Redacted] Preschool Enrollment Contract 8.7.22 2 N [Redacted] Preschool Tuition Affidavit and Statement 1.11.23 2

O [Redacted] Resume Undated 10

P Withdrawn

Q SEIT Progress Report 1.6.23 6

R SEIT Out of Pocket Invoices Misc.2022- 6

2023

S SEIT Direct-Billed Invoices Misc.2022- 11

2023

T [Redacted] Resume Undated 2

U Withdrawn

V Speech-Language Progress Report 1.15.23 3

W Withdrawn

X Speech-Language Invoices Misc. 2022- 7

2023

Y OT/PT Bills Misc. 12

Z Proof of Payments Misc. 2022- 31

2023

AA Due Process Complaint originally case #246340 3.1.23 8

BB Parent Email Correspondence with CPSE 3.4.22 1

CC Parent Follow-Up Email re: Referral Letter 3.30.23 2 Case No. 238655

DD Parent Email to CPSE Requesting Evaluation 4.7.22 1

EE Parent Email with CPSE Misc. 3

FF Email from [Redacted] to Mr. [Redacted] with Parent 9.29.22 3

Referral Emails [not admitted into evidence]

GG Speech and Language Evaluation Report 6.21.22 8

HH [Redacted] Resume Undated 7

II Letter from CPSE 7.5.23 2

JJ Parents' Response to the CPSE 7.11.22 1

KK Speech Language Chart Undated 14

LL School Observation 4.11.23 2

MM WITHDRAWN

NN WITHDRAWN

OO WITHDRAWN

PP WITHDRAWN

QQ WITHDRAWN

RR WITHDRAWN

SS WITHDRAWN

TT Pre-school Language Scales [not admitted into evidence] 12

UU [Redacted] Invoices 2.7.23-3.21.23 2

VV Affidavit of [Redacted] 4.20.23 4

WW Affidavit of [Redacted] 4.20.23 3

XX Affidavit of [Redacted] 4.20.23 2 Case No. 238655

IHO EXHIBITS

Exhibit Title Date Pages

1 Email from IHO to Parties re Prehearing Conference 10.12.22 2

2 Prehearing Conference Summary and Order 10.21.22 10

3 Status Conference Summary and Order 11.14.22 3 4 Status Conference Summary and Order 12.12.22 3 5 Status Conference Summary and Order 1.23.23 3 6 Status Conference Summary and Order 3.7.23 4

7 Email Exchange with Parties re Recusal, Recusal Decision 9.24.22- 50

9.30.22,

and Order with Exhibits

2.24.23,3.1.23

8 Closing Brief of the DOE 6.22.23 15

9 Closing Statement and Memorandum of Law of Parent 6.22.23 28

APPENDIX

Information Term Used In FOFD

[Redacted] Student

[Redacted], Esq Parent

Attorney/Representative

[Redacted, Esq. District

Attorney/Representative

[[Redacted] Preschool Private School

[Redacted], SEIT Provider Witness # 1

[Redacted]-Pediatric, Witness # 2

Occupational Therapist,

Private Hospital

[Redacted], OT Provider Witness #3

[Redacted], Physical Therapist Witness #4

at Private Hospital

[Redacted], Clinical Witness #5

Psychologist

[Redacted], Teacher Witness #6

[Redacted], Speech and Witness #7

Language Provider

[Redacted], Agency Providing Witness #8

Special Education Services

[Redacted], Parent Witness #9

---

Footnotes

[1] On 2.24.23, Petitioner, by its attorneys, sent an email requesting, for the second time, that I recuse myself from the above-captioned matter. On 9.29.22, Parent’s representative sent her first email requesting recusal. On 9.30.22, I advised the parties that I would not be recusing myself from the proceeding. Since that time, I have held a Prehearing Conference on 10.21.22 and Status Conferences on 11.14.22, 12.22.22, and 1.23.22. I issued written summaries and orders after each of these conferences. Similarly, I had the transcripts from each of these conferences transcribed, and upon receipt of the transcript, my understanding is that my office sent the transcripts to the parties, as evidenced by emails The DOE stated that the email request should not be considered a motion and the allegations listed by Petitioner

[3] Testimony was that the OT provided two sessions in school and one at the sensory gym (4.25.23 Tr. 89-92).

[4] The sole counseling provided to the Student was afterschool (4.27.23 Tr. 266).

[5] See NYS Educ. Law § 4404(1)(c); R.E. v. N.Y.C. Dept. of Educ., 694 F.3d 167, 184-185 (2d Cir. 2012), C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 835-836 (2d Cir. 2014).

[6] See 20 U.S.C. § 1400 (d)(1) (A)

[7] See 34 C.F.R. § 300.13

[8] See Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).

[9] Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2017).

[10] Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 12, 15 (1993); see also Sch. Comm. Of Burlington v. Dept. of Educ., 471 U.S. 359, 370 (1985).

[11] See Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112, 115 (2d Cir. 2007); Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998).

[12] Gagliardo, 489 F.3d at 112

[13] Gagliardo, 489 F.3d at 112, quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006)

[14] See Frank G., 459 F.3d at 364-65.

[15] Frank G., 459 F.3d at 364; see also Gagliardo, 489 F.3d at 115.

[16] See 20 U.S.C. § 1401(29); Educ. Law § 4401(1); 34 CFR 300.39(a)(1); 8 NYCRR 200.1(ww); Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 (2d Cir. 2014).

[17] See Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65.

[19] “Are children who are age eligible (age 5 years by December 1) whose parents enroll them for an additional year in a preschool or nursery school program eligible for special education services pursuant to section 3602-c of Education Law? No. Section 3602-c of Education Law pertains only to parental placements in nonpublic elementary and secondary schools. It does not apply to a child who is less than compulsory school age continuing in a preschool program, even if the preschool program is located in the same building as a kindergarten or other elementary grade classroom.” See Chapter 378 of the Laws of 2007 - Guidance on Parentally Placed Nonpublic Elementary and Secondary School Students with Disabilities Pursuant to the Individuals with Disabilities Education Act (IDEA) 2004 and New York State (NYS) Education Law Section 3602-c. See also, 8 NYCRR 200.16[h][3][i]; see 8 NYCRR 200.5[m]; Ed L §4410 (1)(i); 8 NYCRR §200.1(mm) (Definition of preschool child makes children who turn age 5 on or before December 1 ineligible for preschool services and continues preschool eligibility through August of the year in which the student is first eligible to attend kindergarten. Establishes criteria for the identification of a preschool child with a disability).

[20] D.D-S. v. Southold Union Free Sch. Dist., No. 09-CV-5026, 2011 WL 3919040 (E.D.N.Y. Sept. 2, 2011)

[22] See W.A. v. Hendrick Hudson Cent. School Dist., 927 F.3d 126, 148-49 [2d Cir. 2019] [indicating that "a resource that benefits an entire student population can constitute special education in certain circumstances" but cautioning that features such as small class size might be the sort of feature that might be preferred by parents of any child, disabled or not], cert denied, 140 S. Ct. 934 [2020]; T.K. v. New York City Dep't of Educ., 810 F.3d 869, 878 [2d Cir. 2017]); see also Bd. of Educ. of Wappingers Cent. School Dist. v D.M., 831 Fed. App'x 29, 31 [2d Cir. 2020] [acknowledging an SRO's statement that the standard for an appropriate unilateral placement had become less demanding but reiterating that the appropriate analysis is the "totality of the circumstances" standard]).

[24] For example, when this tribunal asked Witness # 7 if she reviewed a certain IEP she responded: “I've reviewed all of the documents in evidence.” (4.27.23 Tr. 203). Yet, Parent’s representative #1 stated at this hearing to Witness # 7, when referring to the disclosure, that “For yours, we only sent you one package with speech documents” (4.27.23 Tr. 187).

[25] “Ms., Ms. [Witness #7], I'll tell you, alright, it's really very frustrating. I'm happy to have you say, I'm sorry, IHO, I don't understand your question, but continuously you fail to answer the questions asked, you answer the question you want to answer, that's not appropriate. I'm happy to rephrase my question, if you don't understand, but you're doing this continuously” (4.27.23 Tr. 236-237).

[26] See, e.g., F.L. v. New York City Dep't of Educ., 2016 WL 3211969, at *11 (S.D.N.Y. June 8, 2016); L.K. v. New York City Dep't of Educ., 2016 WL 899321, at *8-*10 (S.D.N.Y. Mar. 1, 2016), aff'd in part, 674 Fed. App'x 100 (2d Cir. Jan. 19, 2017); P.S. v. New York City Dep't of Educ., 2014 WL 3673603, at *13-*14 (S.D.N.Y. Jul. 24, 2014); M.L. v. New York City Dep't of Educ., 2014 WL 1301957, at *11 (S.D.N.Y. Mar. 31, 2014); see also Thompson R2-J Sch. Dist. v. Luke P., 540 F.3d 1143, 1152-53 (10th Cir. 2008); Gonzalez v. Puerto Rico Dep’t of Educ., 254 F.3d 350, 353 (1st Cir. 2001); Devine v. Indian River County Sch. Bd., 249 F.3d 1289, 1293 (11th Cir. 2001); JSK v. Hendry County Sch. Bd., 941 F.2d 1563, 1573 (11th Cir 1991)).

[27] 459 F.3d at 364-65.

[28] L.K., 674 Fed. App'x at 101.

[29] Walczak, 142 F.3d at 130, Rowley, 458 U.S. at 189.

[30] Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted], Grim, 346 F.3d at 379. 31 See C.F. ex rel R.F. v. New York City Dep’t of Educ., 746 F.3d 68, 72 (2d. Cir. 2014). 32 Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379, Walczak, 142 F.3d at 132. 33 Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 246-47, 129 S. Ct. 2484, 174 L. Ed. 2d 168 (2009). 34 See E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014).