Impartial Hearing Decision

FINDINGS OF FACT & DECISION

IHRS Case Number: 580008

Student Name: [REDACTED]

(hereinafter referred to as “Student”)

Date of Birth: [REDACTED]

School District: [REDACTED]

(hereinafter referred to as “District”)

Hearing Requested By: Parent

Dates of Hearings: February 13, 2023

February 27, 2023

March 7, 2023

March 9, 2023

March 10, 2023

March 13, 2023

March 24, 2023

April 13, 2023

Actual Record Close Date: April 14, 2023

Hearing Officer: Jeffrey J. Schiro, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 13, 2023

For the Student:

[REDACTED], ESQ., Parent, pro se

For the District:

[REDACTED], ESQ., Attorney

[REDACTED], Ed.D., Director of Pupil Personnel Services

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 27, 2023

For the Student:

[REDACTED], ESQ., Parent, pro se

For the District:

[REDACTED], ESQ., Attorney

[REDACTED], Ed.D., Director of Pupil Personnel Services

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 7, 2023

For the Student:

[REDACTED], ESQ., Parent, pro se

[REDACTED], Parent

For the District:

[REDACTED], ESQ., Attorney

[REDACTED], Superintendent of Schools

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 9, 2023

For the Student:

[REDACTED], ESQ., Parent, pro se

[REDACTED], Parent

For the District:

[REDACTED], ESQ., Attorney

[REDACTED], Superintendent of Schools

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 10, 2023

For the Student:

[REDACTED], ESQ., Parent, pro se

For the District:

[REDACTED], ESQ., Attorney

[REDACTED], Ed.D., Director of Pupil Personnel Services

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 13, 2023

For the Student:

[REDACTED], ESQ., Parent, pro se

[REDACTED], MS Ed., Educational Consultant

[REDACTED], Ph.D., LBA, Parent Trainer & Transition Coordinator

For the District:

[REDACTED], ESQ., Attorney

[REDACTED], Ed.D., Director of Pupil Personnel Services

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 24, 2023

For the Student:

[REDACTED], ESQ., Parent, pro se

[REDACTED], Parent

For the District:

[REDACTED], ESQ., Attorney

[REDACTED], Ed.D., Director of Pupil Personnel Services

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 13, 2023

For the Student:

[REDACTED], ESQ., Parent, pro se

For the District:

[REDACTED], ESQ., Attorney

I. JURISDICTION - OVERVIEW OF ADMINISTRATIVE PROCEDURES

This impartial due process proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482, and Article 89 of the New York State Education Law. This hearing was initially requested by the parent of the student in a due process complaint received by the District on September 15, 2022. In dispute in this consolidated matter is whether the District offered the student a free appropriate public education (“FAPE”) for the 2022/23 school year in the least restrictive environment (“LRE”) and whether the District breached the parties’ 2019 Pendency Agreement (Exs. SD-2, SD-3, SD-4, SD-5, SD-6).^[1]

When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (“IEP”), which is delegated to a local committee on special education (“CSE”) that includes, but is not limited to, parents, teachers, at least one psychologist, and school district representatives. See N.Y. Educ. Law § 4402; see also 20 U.S.C. §§ 1414(d)(1)(A)-(B); 34 C.F.R. §§ 300.320, 300.321; 8 NYCRR §§ 200.3, 200.4(d)(2). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing. See 20 U.S.C. §§ 1221e-3, 1415(e)-(f); 34 C.F.R. §§ 300.151 - 300.152, 300.506, 300.511; N.Y. Educ. Law § 4404(1); 8 NYCRR §§ 200.5(h)-(l).

New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding “any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student.” See 8 NYCRR § 200.5(i)(1); see also 20 U.S.C. §§ 1415(b)(6)-(7); 34 C.F.R.

§§ 300.503(a)(1)-(2), 300.507(a)(1).

An impartial hearing officer (“IHO”) typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five (5) business days before the hearing; and obtain a verbatim record of the proceeding. See 20 U.S.C. §§ 1415(f)(2)(A), (h)(1)-(3); 34 C.F.R.

§§ 300.521(a)(1)-(4); 8 NYCRR §§ 200.5(j)(3)(v), (vii), (xii).

The IHO must render and transmit a final written decision in the matter to the parties not later than forty-five (45) days after the expiration of the resolution session period. See 34 C.F.R. §§ 300.510(b)(2), (c), 300.515(a); 8 NYCRR § 200.5(j)(5). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with State and federal regulations. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). The decision of the IHO is binding upon both parties unless appealed. See N.Y. Educ. Law § 4404(1). A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (“SRO”). See N.Y. Educ. Law § 4402(2); see also 20 U.S.C. § 1415(g)(1); 34 C.F.R. § 300.514(b)(1); 8 NYCRR

§ 200.5(k).

II. PROCEDURAL HISTORY

On September 15, 2022, the District appointed the undersigned to serve as the IHO in IHRS No. 580008. See 8 NYCRR § 200.5(j)(3)(i). My appointment was done off the rotational list established by the New York State Education Department (“NYSED”) given my appointment to other (then) on-going matters involving the same student with a disability. See 8 NYCRR § 200.5(j)(3)(ii)(a)(1). In that complaint, the parent alleged that the student was excluded by the District from activities and services available to non-disabled students and sought an order compelling the District to provide the student with access to such activities and services, along with compensatory education (Exs. SD-1 at ¶ 3, SD-2). On September 23, 2022, the District served the parent with a combined answer and motion to dismiss (Ex. SD-37). See 8 NYCRR §§ 200.5(i)(4)-(5). On September 25, 2022, the parent served the District with an affirmation in opposition to its motion to dismiss (Ex. P-C).

On September 28, 2022, the District appointed me to serve as the IHO in IHRS No. 582248 (Ex. SD-3). See 8 NYCRR § 200.5(j)(3)(i). In that complaint, the parent alleged that the District deliberately and maliciously delayed completion of the student’s annual review, so that it could submit an age-variance application for a new younger student in its existing 12:1+1 special class. As relief, the parent sought an order compelling the District to file an age-variance application for the student for the 2022/23 school year, along with compensatory education (Exs. SD-1 at ¶ 3, SD-3). On October 7, 2022, the District served the parent with a combined answer and motion to dismiss (Ex. SD-38). See 8 NYCRR §§ 200.5(i)(4)-(5).

On October 14, 2022, the District appointed me to serve as the IHO in IHRS No. 585749. See 8 NYCRR § 200.5(j)(3)(i). In that complaint, the parent alleged that the CSE’s annual review of the student’s educational program was untimely and that its recommended program for the student at the [REDACTED] High School denied the student a FAPE in the LRE. The parent sought an order compelling the District to educate the student within one of its existing classes, along with compensatory education (Exs. SD-1 at ¶ 3, SD-4). On October 24, 2022, the District served the parent with a combined answer and motion to dismiss (Ex. SD-39). See 8 NYCRR §§ 200.5(i)(4)-(5).

On October 31, 2022, the District appointed me to serve as the IHO in IHRS No. 588788. See 8 NYCRR § 200.5(j)(3)(i). In that complaint, the parent alleged that the District breached the terms of the operative pendency agreement between the parties by failing to arrange for a certified special education teacher to provide the student with instruction. Again, the parent’s stated relief was for the provision of compensatory education to the student (Exs. SD-1 at ¶ 3; SD-5). On November 9, 2022, the District served the parent with a combined answer and motion to dismiss (Ex. SD-40). See 8 NYCRR §§ 200.5(i)(4)-(5). On November 11, 2022, the parent served the District with an affirmation in opposition to its motion to dismiss (Ex. SD-41).

On December 19, 2022, the District appointed me to serve as the IHO in IHRS No. 593648. See 8 NYCRR § 200.5(j)(3)(i). In that complaint, the parent alleged that the District unilaterally changed the student’s pendency placement, by changing the location of the student academic instruction from the local library to the high school and requested compensatory education as a remedy (Exs. SD-1 at ¶ 3, SD-6). On January 3, 2023, the District served the parent with a combined answer and motion to dismiss (Ex. SD-42). See 8 NYCRR §§ 200.5(i)(4)-(5).

An on-the-record pre-hearing conference was held with the parties on December 14, 2022 to clarify the hearing issues and discuss potential consolidation of pending matters involving the same student with a disability (R. 1-53). See 8 NYCRR § 200.5(j)(3)(xi). Decision on the District’s various motions to dismiss was reserved pending a full hearing and the parent’s due process complaints in IHRS Nos. 582248, 585749, and 588788 were consolidated with IHRS No. 580008 (R. 49-51; Exs. IHO-VIII – IHO-XI).^[2] See 8 NYCRR §§ 200.5(j)(3)(ii)(a)(2)-(4).

On January 13, 2023, the parent sought to subpoena several District officers, employees, and contractors to give testimony at the hearing (R. 131-132; Exs. IHO-I). The District opposed the parent’s proposed subpoenas (R. 131-132; Ex. IHO-II). In an Interim Order dated February 26, 2023, the parent’s request to subpoena several District contractors was granted, but his request to subpoena officers and employees of the District was denied (Exs. IHO-IV – IHO-VII). See 8 NYCRR § 200.5(j)(3)(iv).

Hearings on the merits of the consolidated matter were thereafter held on: February 13, 2023; February 27, 2023; March 7, 2023; March 9, 2023; March 10; 2023; March 13, 2023; March 24, 2023; and April 13, 2023 (R. 1, 431, 464, 612, 736, 982, 1108; Ex. IHO-I). Appended to this decision are: a statement of appeal rights; a list of the persons in attendance at the hearings; and a list of the documents received into evidence.^[3] See 8 NYCRR § 200.5(j)(5)(v).

III. FACTUAL BACKGROUND

The student is now [REDACTED] years old and has a medical diagnosis of Down Syndrome which has an impact on his motor and sensory development and performance in the education environment. The student's eligibility for special education and related services as a student with an intellectual disability is not in dispute in this hearing (Exs. SD-2, SD-3, SD-4, SD-5, SD-6).^[4] See 8 NYCRR § 200.1(zz)(7).

The student resides within the [REDACTED] (hereinafter referred to as the “Home District”). The Home District is an elementary school district which ends as grade six. When children finish sixth grade at [REDACTED], they have a choice between attending middle school and high school in the District of the [REDACRTED] (hereinafter referred to as the “Neighboring District”). For all times relevant to this hearing, the parents have elected for the student to receive instruction from the District. See Appeal No. 22-010 at 10 n. 13.

The student in this case has been the subject of eighteen (18) prior State-level administrative appeals.^[5] Accordingly, the parties’ familiarity with the student’s educational history is presumed and will not be restated here.

The CSE developed an IEP for the student for the 2022/23 school year over two separate meetings held on August 1, 2022 and October 13, 2022 (Exs. SD-7, SD-1 at ¶¶ 15, 18, SD-30). For the 2022/23 school year, the CSE recommended that the student receive the majority of his instruction in a 12:1+1 special class at the [REDACTED] (hereinafter referred to as the “Recommended District”), along with a 1:1 aide to navigate the building safely. The CSE also recommended that the student receive related services of: individual occupational therapy, two (2) times per week for thirty (30) minutes per session; individual physical therapy, two (2) times per week for thirty (30) minutes per session; individual speech/language therapy, three (3) times per week for thirty (30) minutes per session; small group (5:1) speech/language therapy, once weekly for thirty (30) minutes per session; individual special instruction, four (4) times per week for ninety (90) minutes per session at home and in the community; and individual parent counseling and training, two (2) times per month for sixty (60) minutes per session (Exs. SD-1 at ¶ 38, SD-30, SD-31 at 18, 24).

Due to the nearly continuous nature of the administrative due process proceedings and State-level appeals – and related federal district court proceedings – involving this student, he has been receiving his special education program under various pendency placements since approximately the 2015/16 school year. See generally Application of a Student was a Disability, Appeal No. 22-102. On September 20, 2019, the parties entered into a pendency agreement which, in sum and substance, provided that the student would receive related services in the District’s high school in the morning, including speech/language therapy, physical therapy, occupational therapy, and adaptive physical education. Thereafter, the student was to receive special education instruction in the local library, accompanied by an aide (Exs. SD-1 at ¶ 30; SD-15). See Application of a Student with a Disability, Appeal No. 23-022 at 3.

When the 2022/23 school year commenced in September, a contractual teacher who had been the student’s special education teacher since January of 2022, provided him with instruction called for under the 2019 Pendency Agreement (Ex. SD-1 at ¶ 31). The contractual teacher was employed by an agency which possessed a contract with the student’s Home District (Ex. SD-1 at ¶ 32). On Friday, September 16, 2022, the contractual teacher resigned, and the District began efforts to secure a replacement teacher (Exs. SD-1 at ¶ 33, SD-16). Those efforts included posting a vacancy on the District’s website for a special education teacher to provide the student with pendency instruction, as well as canvasing thirteen agencies to fill the vacancy (Exs. SD-1 at ¶¶ 57-58, 60, SD-16). Given the contractual teacher’s sudden resignation and the District’s inability to locate a replacement teacher on short notice, the District arranged for a permanent substitute teacher to provide instruction to the student (Ex. SD-1 at ¶ 34).

On October 20, 2022, the parent wrote to the District to express his objection to the student’s instruction by a substitute teacher who was not certified in special education (Ex. SD-1 at ¶ 41). In letters dated October 21, 2022 and October 24, 2022, the District informed the parent that given its inability to secure a replacement teacher, and the parent’s objection to the substitute teacher, it would cease providing the student with instruction at the local library and, effective October 24, 2022, it would transport the student home after receiving related services at the high school (Exs. SD-1 at ¶¶ 42, 45, SD-17).

On October 25, 2022, the parent filed a complaint and order to show cause in federal district court (Exs. SD-1 at ¶ 50, SD-20). On October 28, 2022, the Hon. Joanna Seybert, U.S.D.J., conducted a telephone hearing on the order to show cause (Exs. SD-1 at ¶ 51, SD-21). During that hearing, the parent stated that he was willing to have the substitute teacher provide the student with instruction until a certified special education teacher could be found (Exs. SD-1 at ¶ 52, SD-21 at 17). Thereafter, on October 31, 2022, the student resumed instruction at the local library provided by a substitute teacher on the District’s staff (Ex. SD-1 at ¶ 52).

On December 8, 2022, the District advised the parent in writing that it had appointed a certified special education teacher to provide instruction to the student for the remainder of the 2022/23 school year (Exs. SD-1 at ¶ 62, SD-23). The newly hired teacher began instructing the student in the local library on December 15, 2022 (Ex. SD-1 at ¶ 62).^[6]

On December 15, 2022, the District advised the parent in writing that as of December 19, 2022, the student’s ten (10) hours of weekly special education instruction and six (6) hours per week of special instruction would take place at the District’s high school. The reasons given for this location change was to “improve the logistics of providing substitutes if they are needed and... eliminate issues involving compliance with library tutoring policies” (Exs. SD-1 at ¶¶ 64, 67, SD-24).

IV. POSITIONS OF THE PARTIES

A. The District The parent’s complaints in this consolidated matter should be dismissed. The parents obstructed the CSE from completing its annual review of the student’s educational program prior to the commencement of the 2022/23 school year. The CSE utilized appropriate academic assessments to develop the student’s then-present levels of performance, needs, and goals. The CSE’s recommendation of a 12:1+1 special class in the Recommended District offered the student a FAPE in the LRE. The CSE did not predetermine the student’s placement.

The District did not breach its pendency obligations by: excluding the student from educational benefits and services provided to students enrolled in its high school, by providing an uncertified substitute teacher to the student while it searched for a replacement teacher who was certified, or by changing the location of the student’s instruction to its high school (Exs. SD-1, SD-43).

B. The Parent The CSE violated the IDEA by not timely completing the student’s annual review by failing to utilize the student’s completed triennial evaluation when developing the student’s IEP, and by predetermining the student’s educational program and placement for the 2022/23 school year. The CSE recommended program and placement for the student would deny the student a FAPE in the LRE.

The District breached the operative pendency agreement by: excluding him from services he was entitled to receive as an enrolled student, unilaterally changing the roles and responsibilities of the student’s educational consultant and transition coordinator, failing to provide the student with a certified special education teacher, and by changing the location of the student’s instruction to its high school (Exs. SD-2 – SD-6, P-D).

V. FINDINGS OF FACT AND CONCLUSIONS OF LAW

A. Applicable Legal Standards

Two purposes of the IDEA, see 20 U.S.C. §§ 1400-1482, are: (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected, see 20 U.S.C. § 1400(d)(1)(A)-(B); see generally Forest Grove v. T.A., 557 U.S. 230, 239 (2009); Board of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).^[7]

A FAPE is offered to a student when: (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. See Rowley, 458 U.S. at 206-07; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 (2d Cir. 2014); H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 (2d Cir. June 24, 2013); R.E. v. New York City Dep't. of Educ., 694 F.3d 167, 189-90 (2d Cir. 2012), cert. denied 2013 WL 1418840 (U.S. June 10, 2013); M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 (2d Cir. 2012); Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005).

"'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP.'" Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998) (quoting Rowley, 458 U.S. at 206); see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 (2d Cir. 2009). The Supreme Court has indicated that "[t]he IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement." Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. __, 137 S. Ct. 988, 999 2017). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and has indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not," see R.E., 694 F.3d at 190-91, the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA, M.H., 685 F.3d at 245; A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 (2d Cir. 2009); Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003); Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 (S.D.N.Y. Feb. 9, 2007).

Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies: (a) impeded the student's right to a FAPE; (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student; or (c) caused a deprivation of educational benefits. See 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2); 8 NYCRR § 200.5(j)(4)(ii); Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 (2007); R.E., 694 F.3d at 190; M.H., 685 F.3d at 245; A.H. v. Dep't of Educ., 2010 WL 3242234, at *2 (2d Cir. Aug. 16, 2010); E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 (N.D.N.Y. Aug. 21, 2008), aff'd, 2009 WL 3326627 (2d Cir. Oct. 16, 2009); Matrejek v. Brewster Cent. Sch. Dist., 471

F. Supp. 2d 415, 419 (S.D.N.Y. 2007), aff'd, 2008 WL 3852180 (2d Cir. Aug. 19, 2008).

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE. See 20 U.S.C.

§ 1415(f)(3)(E)(i). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction." See Rowley, 458 U.S. at 203. The "IDEA, [however,] does not itself articulate any specific level of educational benefits that must be provided through an IEP." Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189. “The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created.” Endrew F., 137 S. Ct. at 1001. The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents." See Walczak, 142 F.3d at 132 (quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989); see also Grim, 346 F.3d at 379.

Additionally, school districts are not required to "maximize" the potential of students with disabilities. See Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132. Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and... affords the student with an opportunity greater than mere 'trivial advancement.'" See Cerra, 427 F.3d at 195 (quoting Walczak, 142 F.3d at 130); see also T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 (2d Cir. 2008); Perricelli, 2007 WL 465211, at *15. The IEP must be "reasonably calculated to provide some 'meaningful' benefit" See Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see also Endrew F., 137 S. Ct. at 1001 (holding that the IDEA “requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances”); Rowley, 458 U.S. at 192.

The student's recommended program must also be provided in the LRE. See 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. §§ 300.114(a)(2)(i), 300.116(a)(2); 8 NYCRR §§ 200.1(cc), 200.6(a)(1); see also Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 (2d Cir. 2007); Walczak, 142 F.3d at 132; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 (S.D.N.Y. 2010), aff'd, 2012 WL 4946429 (2d Cir. Oct. 18, 2012); E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 (S.D.N.Y. 2009); Patskin v. Board of Educ., 583 F. Supp. 2d 422, 428 (W.D.N.Y. 2008).

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance, see 34 C.F.R. § 300.320(a)(1); 8 NYCRR § 200.4(d)(2)(i); Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum, see 34 C.F.R. §§ 300.320(a)(2)(i), (2)(i)(A); 8 NYCRR § 200.4(d)(2)(iii), and provides for the use of appropriate special education services, see 34 C.F.R. § 300.320(a)(4); 8 NYCRR § 200.4(d)(2)(v).^[8]

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. See N.Y. Educ. Law § 4404(1)(c); see also R.E., 694 F.3d at 184-85; M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 (S.D.N.Y. Aug. 27, 2010).

A. Alleged Procedural Violations

1. Meeting Timeliness

As a general matter, a school district has an obligation to review the IEP of a student with a disability periodically but at least annually, and the CSE, upon review, must revise a student's IEP as necessary to address: "[t]he results of any reevaluation;" "[i]nformation about the child provided to, or by, the parents" during the course of a review of existing evaluation data; the student's anticipated needs; or other matters. See 20 U.S.C. § 1414(d)(4)(A); 34 C.F.R. § 300.324(b)(1)(ii)(C); 8 NYCRR § 200.4(f)(2)(ii).

The IDEA and State regulations require that a school district must have an IEP in effect at the beginning of each school year for each child in its jurisdiction with a disability. See 34 C.F.R. § 300.323(a); 8 NYCRR § 200.4(e)(1)(ii); Cerra, 427 F.3d at 194; K.L. v. New York City Dep't of Educ., 2012 WL 4017822, at *13 (S.D.N.Y. Aug. 23, 2012), aff'd, 530 Fed. App'x 81, 2013 WL 3814669 (2d Cir. 2013); B.P. v. New York City Dep't of Educ., 841 F. Supp.2d 605, 614 (E.D.N.Y. 2012); Tarlowe, 2008 WL 2736027, at *6. There is no legal authority requiring school districts to produce an IEP at the time that the parents demand; school districts must only ensure that a student's IEP is in effect at the beginning of each school year and that the parents are provided with a copy. See 34 C.F.R. §§ 300.322(f), 300.323(a); 8 NYCRR § 200.4(e)(1)(ii); N.K. v. New York City Dep't of Educ., 961 F. Supp. 2d 577, 586 (S.D.N.Y. 2013); J.G. v. Briarcliff Manor Union Free School Dist., 682 F. Supp. 2d 387, 396 (S.D.N.Y. 2010).

It is undisputed that the CSE did not complete its required annual review of the student’s educational program, nor develop an IEP for the student’s 2002/23 school year, until October 13, 2022 (Exs. SD-29, SD-30, SD-31). The parent asserts that the District deliberately and maliciously delayed the student’s annual review until it had secured an age variance for a twelve-year-old student’s participation in the District’s 12:1+1 special class to increase the age gap between the student and the youngest member of the class, thereby preventing the student’s placement in that class. While on September 15, 2022, the State approved the District’s age-variance application for the twelve-year-old student’s participation in the District’s special class (R. 374), there is ample evidence that, starting in January 2022, the CSE made repeated efforts to schedule the student’s annual review meeting (R. 227, 1006-1008, Exs. SD-7, SD-11). The parent, however, unreasonably refused to consent to any of the dates proposed by the CSE prior to June 9, 2022 (R. 277).

The District contributed to the delayed annual review and IEP, however, by cancelling scheduled CSE meetings on June 9, 2022 and June 16, 2022. While the June 9, 2022 meeting was purportedly cancelled due to the parent’s document production demands (R. 270; Exs. SD-1 at ¶ 13, SD-11), the District ultimately declined to produce those records, making the cancellation of the June 9, 2022 meeting pointless. While the District cancelled the June 16, 2022 meeting due to the illness of a “critical member” of the CSE (Ex. SD-1 at ¶ 14), it refused to disclose the identity of that member due to “privacy” concerns, or offer any evidence of efforts taken to secure another individual to perform the function of the ill CSE member. In the absence of such evidence, I cannot simply assume that the District was justified in cancelling the June 16, 2022 meeting. Lastly, contrary to the District’s assertions at the hearing and in its brief, I do not find that it was unreasonable for the parent to decline to proceed with an annual review meeting on June 24, 2022 due to a sibling’s graduation (R. 656, 1010; Ex. SD-43 at 8) or on September 1, 2022 because the family was away on vacation (Exs. SD-1 at ¶ 17, SD-11).

In any event, I do not find that the delayed annual review or IEP ultimately impeded the student's right to a FAPE or caused a deprivation of educational benefits. See 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2); 8 NYCRR § 200.5(j)(4)(ii). After the completion of the annual review on October 13, 2022, the parent rejected the CSE’s recommended placement of the student in a special class at the Recommended District and opted for the student to continue to receive pendency instruction (Exs. SD-1 at ¶ 40, SD-15). A timely annual review and IEP would have produced a similar outcome.^[9]

2. Consideration & Sufficiency of Evaluative Information The parent asserts that the CSE failed to utilize appropriate academic assessments toward the development of the student’s then-present levels of performance and appropriate goals (Ex. SD-4).

A school district must conduct an evaluation of a student where the educational or related services needs of a student warrant a reevaluation or if the student's parent or teacher requests a reevaluation, see 34 C.F.R. § 300.303(a)(2); 8 NYCRR § 200.4(b)(4); however, a school district need not conduct a reevaluation more frequently than once per year unless the parent and the school district otherwise agree, and at least once every three years unless the school district and the parent agree in writing that such a reevaluation is unnecessary, see 34 C.F.R. §§ 300.303(b)(1)-(2); 8 NYCRR § 200.4(b)(4). A CSE may direct that additional evaluations or assessments be conducted in order to appropriately assess the student in all areas related to the suspected disabilities. See 8 NYCRR § 200.4(b)(3).

Any evaluation of a student with a disability must use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the student, including information provided by the parent, that may assist in determining, among other things the content of the student's IEP. See 20 U.S.C. § 1414(b)(2)(A); 34 C.F.R. § 300.304(b)(1)(ii); Letter to Clarke, 48 IDELR 77 (OSEP 2007). In particular, a school district must rely on technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors. See 20 U.S.C. § 1414(b)(2)(C); 34 C.F.R. § 300.304(b)(3); 8 NYCRR § 200.4(b)(6)(x). A school district must ensure that a student is appropriately assessed in all areas related to the suspected disability, including, where appropriate, social and emotional status. See 20 U.S.C. § 1414(b)(3)(B); 34 C.F.R. § 300.304(c)(4); 8 NYCRR § 200.4(b)(6)(vii). An evaluation of a student must be sufficiently comprehensive to identify all of the student's special education and related services needs, whether or not commonly linked to the disability category in which the student has been classified. See 34 C.F.R. § 300.304(c)(6); 8 NYCRR § 200.4(b)(6)(ix).

In developing the recommendations for a student's IEP, the CSE must consider the results of the initial or most recent evaluation; the student's strengths; the concerns of the parents for enhancing the education of their child; the academic, developmental, and functional needs of the student, including, as appropriate, the student's performance on any general State or district-wide assessments as well as any special factors as set forth in federal and State regulations. See 34 C.F.R. § 300.324(a); 8 NYCRR § 200.4(d)(2).

A CSE must consider independent educational evaluations whether obtained at public or private expense, provided that such evaluations meet the district's criteria, in any decision made with respect to the provision of a FAPE to a student. See 34 C.F.R. § 300.502(c); 8 NYCRR § 200.5(g)(1)(vi). However, consideration does not require substantive discussion, or that every member of the CSE read the document, or that the CSE accord the private evaluation any particular weight or adopt their recommendations. See Mr. P. v. W. Hartford Bd. of Educ., 885 F.3d 735, 753 (2d Cir. 2018), citing T.S. v. Ridgefield Bd. of Educ., 10 F.3d 87, 89-90 (2d Cir. 1993); Watson v. Kingston City Sch. Dist., 325 F. Supp. 2d 141, 145 (N.D.N.Y. 2004) (noting that even if a school district relies on a privately obtained evaluation to determine a student's levels of functional performance, it need not adopt wholesale the ultimate recommendations made by the private evaluator), aff'd, 142 Fed. App'x 9 (2d Cir. July 25, 2005).

Based on the evidence contained in the hearing record, I find that the CSE utilized appropriate assessments to ascertain the student’s then-present levels of performance and to develop appropriate annual goals. The October 2022 IEP indicates that the CSE considered the following evaluations and reports: an October 13, 2022 parent counseling and training progress summary; an October 13, 2022 parent report and observations; an October 13, 2022 speech/language progress summary; an October 13, 2022 transition coordinator report; an August 1, 2022 parent report and observations; a June 10, 2022 educational consultant report; a June 3, 2022 adaptive physical education progress summary; a June 3, 2022 parent counseling and training progress summary; a June 3, 2022 transition coordinator report; a June 1, 2022 progress report; a May 10, 2022 occupational therapy evaluation; an April 8, 2022 speech/language evaluation; an April 7, 2022 educational consultant report; New York State Alternate Assessment results from April 7, 2022; a March 17, 2022 progress report; a February 13, 2022 physical therapy progress summary; and a February 10, 2022 occupational therapy progress summary (Ex. SD-31 at 1-3).

At the annual review meetings of August 1, 2022 and October 13, 2022, every educator and therapist who instructed or provided services to the student provided detailed reports regarding the student’s then-present levels of performance and his goals. Although offered ample opportunity to question the educators and providers, the parent did not challenge or criticize the results of any of the assessments or challenge the validity of the goals developed based on those assessments (Exs. SD-1 at ¶¶ 84-90, 96, SD-10, SD-29, SD-31).

Alternatively, while the CSE did not conduct a psychoeducational or social history reevaluation of the student prior to the August 1, 2022 and October 13, 2022 annual review meetings, given the parent’s initial refusal to give consent for [REDACTED] BOCES to perform those evaluations (R. 570, 959; Exs. SD-1 at ¶ 9, SD-8, SD-9) and later refusal to advise the CSE of whether, and what kind, of testing they had privately secured for the student (R. 970, 997, 1000-1001, 1033-1034, 1136, 1147), I find that the parent is now estopped from now asserting that the assessments on which the October 2022 IEP was based were insufficient.

3. Parent Participation & Predetermination The parents asserts that they were denied meaningful participation in the annual review process and that the CSE predetermined the student’s placement and the continuum of placement alternatives then-available in the District (Ex. SD-4).

The IDEA sets forth procedural safeguards that include providing parents an opportunity "to participate in meetings with respect to the identification, evaluation, and educational placement of the child." See 20 U.S.C. § 1415(b)(1). Federal and State regulations governing parental participation require that school districts take steps to ensure that parents are present at their child's IEP meetings or are afforded the opportunity to participate. See 34 C.F.R. § 300.322; 8 NYCRR § 200.5(d).

Although school districts must provide an opportunity for parents to participate in the development of their child's IEP, mere parental disagreement with a school district's proposed IEP and placement recommendation does not amount to a denial of meaningful participation. See T.F. v. New York City Dep't of Educ., 2015 WL 5610769, at *5 (S.D.N.Y. Sept. 23, 2015); A.P., 2015 WL 4597545 at *8, *10; E.F. v. New York City Dep’t of Educ., 2013 WL 4495676 at *17 (E.D.N.Y. Aug. 19, 2013) (stating that "as long as the parents are listened to," the right to participate in the development of the IEP is not impeded, "even if the [district] ultimately decides not to follow the parents' suggestions"); P.K. v. Bedford Cent. Sch. Dist., 569 F. Supp. 2d 371, 383 (S.D.N.Y. 2008) ("A professional disagreement is not an IDEA violation"); School for Language & Communication Dev. v. New York State Dep't of Educ., 2006 WL 2792754, at *7 (E.D.N.Y. Sept. 26, 2006) ("Meaningful participation does not require deferral to parent choice").

When determining whether a district complied with the IDEA's procedural requirements, the inquiry focuses on whether the parents "had an adequate opportunity to participate in the development" of their child's IEP. See Cerra, 427 F.3d at 192; see also T.Y. v. New York City Dep't of Educ., 584 F.3d 412, 420 (2d Cir. 2009) (noting that the IDEA gives parents the right to participate in the development of their child's IEP, not a veto power over those aspects of the IEP with which they do not agree).

As to predetermination, the consideration of possible recommendations for a student prior to a CSE meeting is not prohibited as long as the CSE understands that changes may occur at the CSE meeting. See T.P., 554 F.3d at 253; A.P. v. New York City Dep't of Educ., 2015 WL 4597545, at *8-*9 (S.D.N.Y. July 30, 2015); see also 34 C.F.R. §§ 300.501(b)(1), (3); 8 NYCRR §§ 200.5(d)(1), (2). The key factor with regard to predetermination is whether the school district has "an open mind as to the content of [the student's] IEP." T.P., 554 F.3d at 253; see D.D-S. v.

Southold Union Free Sch. Dist., 2011 WL 3919040, at *10-*11 (E.D.N.Y. Sept. 2, 2011), aff'd, 506 Fed. App'x 80 (2d Cir. Dec. 26, 2012); R.R. v. Scarsdale Union Free Sch. Dist., 615 F. Supp.

2d 283, 294 (E.D.N.Y. 2009), aff'd, 366 Fed. App'x 239 (2d Cir. Feb. 18, 2010). School districts may "'prepare reports and come with pre[-]formed opinions regarding the best course of action for the child as long as they are willing to listen to the parents and parents have the opportunity to make objections and suggestions.'" DiRocco v. Bd. of Educ. of Beacon City Sch. Dist., 2013 WL 25959, at *18 (S.D.N.Y. Jan. 2, 2013), quoting M.M. v. New York City Dept. of Educ. Region 9 (Dist. 2), 583 F. Supp. 2d 498, 506; (S.D.N.Y. 2008); see B.K. v. New York City Dept. of Educ., 12 F. Supp. 3d 343, 358-59 (E.D.N.Y. 2014) (holding that "active and meaningful" parent participation undermines a claim of predetermination).

The evidence contained in the hearing record, including the transcripts of the August 1, 2022 and October 13, 2022 annual review meetings, demonstrates that the CSE meaningfully considered all of the placement options available on the continuum (R. 882). The CSE Chairperson presented the following placement options available within the District: general education programs, related services only, consultant teacher services, resource room services, an integrated co-taught program; 15:1 special classes, and the District’s 12:1+1 special class (Exs. SD-1 at ¶¶ 102-107, 109, 115, 117, SD-29 at 136-148, 158-159).

The CSE also considered placement options for the student outside of the District (Ex. SD-1 at ¶ 119). Accordingly, the Principal of [REDACTED] Learning Center at BOCES presented information to the CSE on its the full-day 12:1+1 program at the [REDACTED] Learning Center at BOCES (Exs. SD-1 at ¶¶ 120-123; SD-13 at 17-27). Likewise, a special education teacher and a speech therapist from the Recommended School District described their special class program to the CSE (Exs. SD-1 at ¶¶ 125-132, SD-29 at 9-12, 26, 28). The parents were allowed to ask questions and express concerns about both in-District and off-site programs (Exs. SD-1 at ¶¶ 124, 133, SD-13 at 21-23, 27-28, SD-29 at 15, 20, 16-18, 24-26, 29-37, 139-144, 149-150).

Following the presentations each member of the CSE separately and openly provided his or her placement recommendations (Exs. SD-1 at ¶ 138, SD-29 at 115-174). All CSE members, other than the parents, recommended that the student be educated in a 12:1+1 special class. Other than the parents, the educational consultant and the transition coordinator, the CSE members recommended the student’s placement in the Recommended District (Ex. SD- 1 at ¶¶ 139-145). Based on this record I find that the parents’ disagreement with the District’s proposed IEP and placement recommendation does not amount to a denial of their meaningful participate in the CSE process.

Alternatively, while the parent asserts that impermissible predetermination was evidenced by the CSE’s refusal to seek an age-based variance which would permit the student to attend the District’s 12:1+1 special class, as a similar variance had been denied the prior year, see Application of a Student with a Disability, Appeal No. 22-010, it was not unreasonable for the CSE to decline the parent’s variance request (R. 886, 889-890, 938-939, 955-956).^[10]

B. Recommended Program/Placement

Based on the evidence contained in the hearing record, I find that the Recommended District’s program was capable of providing the student with a FAPE in the LRE.

A FAPE in conforming with the student’s IEP had to satisfy his need for vocational opportunities and experiences as an adult. The October 2022 IEP noted that the student exhibits transition needs in the areas of: career choice and planning, employment, knowledge of skills, further education/training, self-determination, community involvement, money management and health (Ex. SD-31 at 11). To address those needs, the CSE developed a coordinated set of transition activities which provided that the student’s instruction “will explore areas of vocational interest and develop pre-employment skills through participation in a work experience program;” speech/language therapy to “increase his communicative abilities with others... in the workplace;” and occupational therapy to “improve [his] fine motor skills for functioning... in the workplace” (Ex. SD-31 at 21-22).

The 12:1+1 special class life skills program at the Recommended District was capable of satisfying the student’s need for workplace experiences by arranging that “post-graduate students” in the student’s age group go “out two, three days a week to somewhere [in the community where] they’re interested in working” (Ex. SD-29 at 11-12). No other available program on the continuum satisfied the key objective of the student’s IEP that he “develop pre-employment skills in a work experience program” (Ex. SD-31 at 21). It was therefore the only program option before the CSE which would provide him with a FAPE.

The IDEA also requires that a student's recommended program must be provided in the LRE. See 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. §§ 300.107, 300.114(a)(2)(i), 300.116(a)(2), 300.117; 8 NYCRR §§ 200.1(cc), 200.6(a)(1); T.M., 752 F.3d at 161-67; Newington, 546 F.3d at 111; Gagliardo, 489 F.3d at 105; Walczak, 142 F.3d at 132; Patskin v. Bd. of Educ. of Webster Cent. Sch. Dist., 583 F. Supp. 2d 422, 428 (W.D.N.Y. 2008). In determining an appropriate placement in the LRE, the IDEA requires that students with disabilities be educated to the maximum extent appropriate with students who are not disabled and that special classes, separate schooling or other removal of students with disabilities from the general educational environment may occur only when the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. See 20 U.S.C. § 1412(a)(5)(A); see also 34 C.F.R. §§ 300.114(a)(2)(i), 300.116(a)(2); 8 NYCRR § 200.6(a)(1); Newington, 546 F.3d at 112, 120-21; Oberti v. Bd. of Educ. of Borough of Clementon Sch. Dist., 995 F.2d 1204, 1215 (3d Cir. 1993); J.S. v. N. Colonie Cent. Sch. Dist., 586 F. Supp. 2d 74, 82 (N.D.N.Y. 2008); Patskin, 583 F. Supp. 2d at 430; Watson v. Kingston City Sch. Dist., 325 F. Supp. 2d 141, 144 (N.D.N.Y. 2004); Mavis v. Sobol, 839 F. Supp. 968, 982 (N.D.N.Y. 1993).

The student here could not achieve his need for a work experience program in any of the regular classroom programs in the District’s high school. In addition to providing a work experience program, the Recommended District’s program would have offered the student, to the maximum extent possible, inclusion in regular classes, programs, lunch, and electives with general education students (R. 931; Ex. SD-29 at 12, 25). Accordingly, the Recommended District’s program offered the student a FAPE in the LRE.

C. Alleged Pendency Violations The parent asserts that the District breached the operative pendency agreement by: excluding him from services he was entitled to receive as an enrolled student, unilaterally changing the roles and responsibilities of the student’s educational consultant and transition coordinator, failing to provide the student with a certified special education teacher, and by changing the location of the student’s instruction to its high school (Exs. SD-2 – SD-6, P-D). I will address each of the parent’s arguments in turn.

During the pendency of any proceedings relating to the identification, evaluation or placement of the student, the IDEA and the New York State Education Law require that a student remain in his or her then-current educational placement, unless the student’s parents and the board of education otherwise agree. See 20 U.S.C. § 1415(j); 34 C.F.R. § 300.518(a); N.Y. Educ. Law § 4404(4); 8 NYCRR § 200.5(m); Ventura de Paulino v. New York City Dep't of Educ., 959 F.3d 519, 531 (2d Cir. 2020), cert. denied, 141 S.Ct. 1075 (2021); T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 170-71 (2d Cir. 2014); Mackey v. Bd. of Educ. of the Arlington Cent. Sch. Dist., 386 F.3d 158, 163 (2d Cir. 2004), citing Zvi D. v. Ambach, 694 F.2d 904, 906 (2d Cir. 1982); M.G. v. New York City Dep't of Educ., 982 F. Supp. 2d 240, 246-47 (S.D.N.Y. 2013); Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *20 (E.D.N.Y. Oct. 30, 2008); Board of Educ. of Poughkeepsie City Sch. Dist. v. O'Shea, 353 F. Supp. 2d 449, 455-56 (S.D.N.Y. 2005).

Pendency has the effect of an automatic injunction, and the party requesting it need not meet the requirements for injunctive relief such as irreparable harm, likelihood of success on the merits, and a balancing of the hardships. See Zvi D. v. Ambach, 694 F.2d at 906; Wagner v. Board of Educ. of Montgomery County, 335 F.3d 297, 301 (4th Cir. 2003); Drinker v. Colonial Sch. Dist., 78 F.3d 859, 864 (3d Cir. 1996). The purpose of the pendency provision is to provide stability and consistency in the education of a student with a disability and "strip schools of the unilateral authority they had traditionally employed to exclude disabled students... from school". See Honig v. Doe, 484 U.S. 305, 323 (1987) (emphasis in original); Evans v. Board of Educ. of Rhinebeck Cent. Sch. Dist., 921 F. Supp. 1184, 1187 (S.D.N.Y. 1996), citing Board of Educ. of City of New York v. Ambach, 612 F. Supp. 230, 233 (E.D.N.Y. 1985).

A student's placement pursuant to the pendency provision of the IDEA is evaluated independently from the appropriateness of the program offered the student by the CSE. See Mackey, 386 F.3d at 160-61; Zvi D., 694 F.2d at 906; O'Shea, 353 F. Supp. 2d at 459 (noting that "pendency placement and appropriate placement are separate and distinct concepts"). The pendency provision does not require that a student remain in a particular site or location, see Ventura de Paulino, 959 F.3d at 532; T.M., 752 F.3d at 170-71; Concerned Parents and Citizens for the Continuing Educ. at Malcolm X Pub. Sch. 79 v. New York City Bd. of Educ., 629 F.2d 751, 753, 756 (2d Cir. 1980); see also Child's Status During Proceedings, 71 Fed. Reg. 46709 (Aug. 14, 2006) (noting that the "current placement is generally not considered to be location-specific"), or at a particular grade level, see Application of a Child with a Disability (Fayetteville-Manilus Cent. Sch. Dist.), Appeal No. 03-032 (SRO Oct. 24, 2013); Application of a Child with a Disability (Stockbridge Valley Cent. Sch. Dist.), Appeal No. 95-16 (SRO May 18, 1995).

Under the IDEA, the pendency inquiry focuses on identifying the student’s then-current educational placement. See Ventura de Paulino, 959 F.3d at 532; Mackey, 386 F.2d at 163; Zvi D., 694 F.2d at 906. Although not defined by statute, the phrase “then-current educational placement” has been found to mean either: (1) the placement described in the student's most recently implemented IEP; (2) the operative placement actually functioning at the time when the pendency provision of the IDEA was invoked; or (3) the placement at the time of the previously implemented IEP. See Dervishi v. Stamford Bd. of Educ., 653 Fed. App’x 55, 57-58 (2d Cir. June 27, 2016), quoting Mackey, 386 F.3d at 163; T.M., 752 F.3d at 170-171 (holding that the pendency provision "requires a school district to continue funding whatever educational placement was last agreed upon for the child"); Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 452 (2d Cir. 2015) (holding that a student's entitlement to stay-put arises when a due process complaint notice is filed). Furthermore, the Second Circuit has stated that educational placement means "the general type of educational program in which the child is placed," see Concerned Parents, 629 F.2d at 753, 756, and that "the pendency provision does not guarantee a disabled child the right to remain in the exact same school with the exact same service providers," see T.M., 752 F.3d at 171.

Once a pendency placement has been established, it can be changed: (1) by agreement between the parties; (2) by an unappealed IHO or court decision in favor of the parents; or (3) by an SRO decision that a unilateral parental placement is appropriate. See 34 C.F.R. §§ 300.518(a), (d); 8 NYCRR §§ 200.5(m)(1)-(2); Ventura de Paulino, 959 F.3d at 532; Board. of Educ. of Pawling Cent. Sch. Dist. v. Schutz, 290 F.3d 476, 483-84 (2d Cir. 2002), cert. denied 537 U.S. 1227 (2003); New York City Dep't of Educ. v. S.S., 2010 WL 983719, at *1 (S.D.N.Y. Mar. 17, 2010); Student X, 2008 WL 4890440, at *23; Arlington Cent. Sch. Dist. v. L.P., 421 F. Supp. 2d 692, 697 (S.D.N.Y. 2006); Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 86 F. Supp. 2d 354, 366 (S.D.N.Y. 2000), aff'd, 297 F.3d 195 (2d Cir. 2002); Letter to Hampden, 49 IDELR 197 (OSEP 2012). If there is an agreement between the parties on the student's educational placement during the due process proceedings, it need not be reduced to a new IEP, and the agreement can supersede the prior unchallenged IEP as the student's then-current educational placement. See Schutz, 290 F.3d at 483-84; Evans, 921 F. Supp. at 1189 n.3; Murphy, 86 F. Supp. 2d at 366.

1. Exclusion from Activities & Services

On August 30, 2022, the student’s mother emailed the Superintendent of Schools requesting that the District provide the student with a guidance counselor, a social worker, and a librarian; and that the District provide “access to senior extracurricular senior sports, student events, student groups, student clubs and student ID” (Ex. SD-14). On September 8, 2022, the Superintendent replied to the parent’s email as follows:

The professionals you have identified work only with students who are enrolled in classes within the [District’s] High School. These services are not available to [the student] at this time. You also requested information about senior activities. Senior activities are reserved for students enrolled in their final year of education at the High School. [The student] will be invited to participate in events, such as graduation, in the year in which he will exit the... District (Exs. SD-1 at ¶ 2, SD-14).

The nature of the student’s instruction in September 2022 was governed by the parties’ 2019 Pendency Agreement (Ex. SD-15). The 2019 Pendency Agreement provided for home instruction in the local library, with the default location for instruction being the parents’ home, if available, or if the home was unavailable, in an alternate off-site location, determined by the parties in good faith (Ex. SD-15 at ¶ 8). The only language regarding after-school services or activities set forth in the 2019 Pendency Agreement provided for special instruction following the student’s day (Ex. SD-15 at ¶ 4). In her testimony, the District’s Director of Pupil Personnel Services noted that while the student was enrolled in the District, he was not enrolled in its high school (R. 336). As the 2019 Pendency Agreement did provide for the student’s access to a guidance counselor, social worker, and librarian, and did not provide for the student’s access to extracurricular activities, such as clubs, program, and sports, the District did not breach the 2019 Pendency Agreement when it denied the student access to those activities and services (Ex. SD-1 at ¶¶ 24-25).

2. Certification Status of Assigned Teacher The parent alleges that the District breached the terms of the 2019 Pendency Agreement by staffing a teacher that was not certified as a special education instructor to teach the student’s core academic instruction and special instruction (Ex. SD-5).

Following the resignation of the student’s contractual teacher on Friday, September 16, 2022, the student began receiving instruction from a substitute teacher on staff at the District who was not certified in special education (Ex. SD-1 at ¶ 35). On October 20, 2022, the parent sent an email to the District objecting to the student’s instruction from a teacher uncertified in special education as “blatant and gross negligence” and threatened litigation (Ex. SD-1 at ¶ 41). In response, on Friday, October 21, 2022, the District informed the parent that it would suspend the student’s instruction at the local library, effective Monday, October 24, 2022, pending its securement of a certified special education teacher for the student (Exs. SD-1 at ¶¶ 42, 46 SD-17). On October 31, 2022, the student’s instruction at the local library resumed with a substitute teacher who was certified to teacher special education (R. 756; Ex. SD-1 at ¶ 52).

The state regulation governing substitute teachers provides that substitutes “with valid teacher certificates or certificates of qualification” may render “service in any capacity, for any number of days,” except that “[i]f employed on more than an itinerant basis, such persons will be employed in an area for which they are certified.” 8 NYCRR § 80-5.4(c)(1). The employment of a substitute teacher on an “itinerant basis” is defined as “employment for 40 days or less by a school district or board of cooperative educational services.” 8 NYCRR § 80-5.4(a)(3). “Substitutes without a valid certification and who are not working towards certification” may render service “for no more than 40 days by a school district or board of cooperative educational services in a school year.” 8 NYCRR § 80-5.4(c)(3)(i). As the student was provided instruction from a substitute teacher not certified in special education for no more than twenty-five (25) days between September 19, 2022 and October 21, 2022, the District was in compliance with State regulations on the use of substitute teachers.

As the 2019 Pendency Agreement is silent on the credentials of the provider(s) of special education instruction or special instruction (Ex. SD-1 5 at ¶¶ 3-4), the District did not breach that agreement by providing the student with instruction from a substitute teacher without special education certification. The District did breach the 2019 Pendency Agreement, however, by unilaterally withholding instruction from the student from October 24, 2022 through October 28, 2022. If the District wanted to be relieved of its obligations under the 2019 Pendency Agreement, it needed to seek injunctive relief under Section 1415(e)(2) from a court of competent jurisdiction. See Honig v. Doe, 484 U.S. 305, 328 (1988).

The District will be ordered to provide compensatory services to the student, to the extent it has not already done so. The parent does not specify the type or amount of compensatory education he seeks to remedy the District’s failure to fully implement pendency instruction during the fall of 2022. In calculating a compensatory education award for a lapse in pendency, the Second Circuit indicated that the purpose of "the stay put provision... to guarantee the same general educational program" should be taken into account. See Doe v. E. Lyme Bd. of Educ., 962 F.3d 649, 665 (2d Cir. 2020). It is less clear that the underlying purpose of the services that happened to become the pendency placement should inform the award. See Application of a Student with a Disability, Appeal No. 23-022 at 9. Therefore, the compensatory education award should include the pendency services owed or "analogous educational services appropriate to the student's needs." E. Lyme, 790 F.3d at 456; see E. Lyme, 962 F.3d at 665-66. In this case the parties have already agreed in the 2019 Pendency Agreement that cancelled instruction could be made up at a later date (Ex. SD-15 at ¶ 4), and I see little reason not to order similar relief for the missed instruction between October 24, 2022 and October 28, 2022.

In light of the above and in the interest of judicial economy, I will order the District to provide compensatory pendency instruction on an hour-for-hour basis to remedy the number and type of instructional hours required pursuant to the 2019 Pendency Agreement.^[11]

3. Change in Location of Instruction The parent alleges that the District unilaterally changed the student’s pendency placement by changing the location of the student’s instruction from the local library to the high school (Ex. SD-1 at ¶ 66, SD-6). According to the District, “the location change resulted from an exercise of its educational and administrative expertise to implement the pendency placement in a way that could more appropriately educate the Student” (Ex. SD-1 at ¶ 67).

It is undisputed that in a letter dated December 15, 2022, the District informed the parents that, effective December 19, 2022, the student’s ten (10) hours of weekly home instruction and six (6) hours of special instruction (per the 2019 Pendency Agreement) would take place in the District’s high school (Exs. SD-1 at ¶ 64, SD-24). In its December 15, 2022 letter, the District premised the location change on “improving the logistics of providing substitutes if they are needed” and to “eliminate issues involving compliance with library tutoring policies.” The letter also stated that the “pendency re-location will provide your son with a continuity between his related services and academic instruction” (Exs. SD-1 at ¶¶ 64, 67, SD-24).

In her testimony, the District’s Director of Pupil Services explained that the “logistics” referenced in the December 15, 2022 letter included: travel time between the high school and the library; that the high school schedule only allotted three minutes between periods; and that academic instruction in the library ran from 10:00 a.m. to 12:00 p.m., while the high school period ran from 10:20 a.m. to 11:00 a.m. (R. 777, 780-781). In addition, the local library’s tutoring policy allowed no more than three (3) hours of instruction at the library per day, but the student was entitled to sixteen (16) hours per week of academic and special instruction under the 2019 Pendency Agreement, which exceeds the local library’s tutoring limit (R. 789-791).

Based on the evidence contained in the hearing record as described above, I find that the District’s change in location of the student’s instruction from the local library to the high school was a good faith exercise of its preexisting and independent authority to determine how to provide the most recently agreed upon educational program to the student and did not violate the 2019 Pendency Agreement. See Ventura de Paulino, 959 F.3d at 534; see also Killoran v. Westhampton Beach Sch. Dist., 2022 U.S. Dist. LEXIS 5219, at *16-17.

4. Change in Roles and Responsibilities of Staff The parent alleges that when the District changed the location of the student’s pendency instruction, it restricted and/or prohibited the educational consultant and transition coordinator’s access to the student’s special education teacher and related service providers (Ex. SD-6).

The student’s educational consultant and transition coordinator are independent contractors, whose duties governed by their respective contracts, and not the 2019 Pendency Agreement (Ex. SD-1 at ¶¶ 69-71). The duties of the transition coordinator are “to assist [the student] in the discovery of a desirable career path, to assist [the student] in the identification of a postsecondary campus experience program, and to facilitate [the student’s] participation in the community by way of unpaid work and/or volunteer experiences” (Ex. SD-27). The duties of the educational consultant are: to provide continuity amongst providers/outside contractors; to assist in the development of IEP goals and present levels of performance; to assist in the development of data collection systems to measure progress; to provide professional and paraprofessional training, as needed; and to problem solve situations that arise, as needed (Ex. SD-26 at 1).

While there is no credible evidence contained in the hearing record that the transition coordinator’s access to the student’s teacher and service providers has been restricted, the same cannot be said for the educational consultant (R. 849). Between the beginning of the 2022/23 school year through the date on which the contractual teacher resigned, i.e., September 16, 2022, the educational consultant worked “collaboratively with that contractual teacher to develop lesson plans and implement those lesson plans” (R. 853). When the contractual teacher resigned, the educational consultant could not provide lesson plans (R. 858). At that point, the educational consultant’s duties shifted to support the student’s related service providers (R. 853, 857). Unable to locate another contractual teacher, the District ultimately hired (as an employee) a certified teacher to provide the student with instruction called for in the 2019 Pendency Agreement (R. 853). Thereafter, the educational consultant no longer provided professional training to the student’s assigned teacher, as such training would be provided to the teacher pursuant to the operative collective bargaining agreement (R. 854-855). On January 13, 2023 a team meeting was held, however, in which the educational consultant and the transition coordinator had “an opportunity to access [the student’s] teacher and service provider to the extent necessary to carry out their duties” (Ex. SD-1 at ¶ 72).

Notwithstanding this diminishment of the educational consultant’s role, as the educational consultant and transition coordinator’s access to the student’s teacher and service providers is not governed by the 2019 Pendency Agreement, any change in such access did not violate the 2019 Pendency Agreement. Alternatively, even if the educational consultant and transition coordinator’s access to the student’s teacher and service providers were deemed governed by the 2019 Pendency Agreement, the District retained the discretion to determine how to provide instruction during pendency to the student (Exs. SD-15, SD-21 at 15). See Ventura de Paulino, 959 F.3d at 534.

I have considered the parent’s remaining claims and find that they are without merit.

VI. ORDER

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

HEREBY ORDERED THAT:

The parent’s claims that the District denied the student a free appropriate public education (FAPE), on both procedural and substantive grounds, in the least restrictive environment (LRE) during the 2022/23 school year for the reasons stated in those complaints originally designated as IHRS Nos. 582248 and 585749 are DENIED, the District’s motions to dismiss those claims are GRANTED, and the parent’s due process complaints originally designated as IHRS Nos. 582248 and 585749 are DISMISSED;

The parent’s claims that the District violated the terms of the 2019 Pendency Agreement during fall 2022 for the reasons stated in those complaints originally designated as IHRS Nos. 580008 and 593648 are DENIED, the District’s motions to dismiss those claims are GRANTED, and the parent’s due process complaints originally designated as IHRS Nos. 580008 and 593648 are DISMISSED; and The parent’s claim that the District violated the terms of the 2019 Pendency Agreement during fall 2022 for the reasons stated in the complaint originally designated in IHRS No. 588788 is GRANTED, IN PART, to the extent set forth above, and, to the extent is has not already done so, the District is directed to provide the student with ten (10) hours of special education instruction and six (6) hours of special instruction as make up services, to be completed within one year of the date of this decision.

Dated: April 28, 2023

/s/ Jeffrey J. Schiro

Jeffrey J. Schiro, Esq.

Impartial Hearing Officer

PLEASE TAKE NOTICE

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 plan 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.

DOCUMENTATION ENTERED INTO THE HEARING RECORD

PARENT

A. Letter to parents from [REDACTED], 6/12/22, 2 pgs.

B. Consolidated Email Correspondence, 2/10/22 – 9/3/22, 132 pgs.

C. Parent’s Affirmation in Opposition to Motion to Dismiss (IHRS No. 580008), undated,

5 pgs.

D. Parent’s Post-Hearing Brief, 3/24/23, 28 pgs.

SCHOOL DISTRICT

1. Affidavit of [REDACTED], 2/8/23, 51 pgs.

2. Due Process Complaint (IHRS No. 580008), rec’d 9/15/22, 1 pg.

3. Due Process Complaint (IHRS No. 582248), rec’d 9/28/22, 2 pgs.

4. Due Process Complaint (IHRS No. 585749), rec’d 10/14/22, 2 pgs.

5. Due Process Complaint (IHRS No. 588788), rec’d 10/31/22, 1 pg.

6. Due Process Complaint (IHRS No. 593648), rec’d 12/19/22, 1 pg.

7. Prior Written Notice (PWN), 9/9/22, 3 pgs.

8. Email chain re: reevaluation, various dates, 10 pgs.

9. Due Process Complaint (IHRS No. 572896), 4/11/22, 9 pgs.

10. Transcript – PHC (IHRS Nos. 572869, 572870, 576267), 8/24/22, 25 pgs.

11. Letters to parents from [REDACTED] re: annual review, various dates, 16 pgs.

12. Letter to parents from [REDACTED], 7/11/22, 1 pg.

13. Transcript – Annual Review, 8/1/22, 60 pgs.

14. Letter to parent from [REDACTED] w/ attachments (emails), 9/8/22, 14 pgs.

15. Pendency Agreement, 9/20/19, 3 pgs.

16. School District’s Efforts to Find Replacement Teacher, various dates, 21 pgs.

17. Letter to parents from [REDACTED], 10/21/22, 1 pg.

18. Email from parent, 10/22/22, 1 pg.

19. Letter to parents from [REDACTED], 10/24/22, 1 pg.

20. Order to Show Cause (OTSC) & Complaint, 22 cv 6467-JS-LGD (EDNY), rec’d 10/26/22,

10 pgs.

21. Transcript – Order to Show Cause Hearing, 10/28/22, 33 pgs.

22. Job Posting, 10/26/22, 1 pg.

23. Letter to parents from [REDACTED], 12/8/22, 1 pg.

24. Letter to parents from [REDACTED], 12/15/22, 2 pgs.

25. [Reserved]

26. Educational Consultant Annual Report, 6/10/22, 3 pgs.

27. Transition Coordinator Annual Report, 6/3/22, 2 pgs.

28. Parent Trainer Annual Report, 6/3/22, 1 pg.

29. Transcript – Annual Review, 10/13/22, 60 pgs.

30. Prior Written Notice (PWN), 10/13/22, 4 pgs.

31. Individualized Education Program (IEP), 10/13/22, 24 pgs.

32. Email to [REDACTED] from [REDACTED], 1/23/23, 1 pg.

33. Evaluation Referral, 9/6/22, 1 pg.

34. Letter to parents from [REDACTED], 2/3/23, 1 pg.

35. Email to [REDACTED] from parent, 4/14/22, 1 pg.

36. Resume – [REDACTED], undated, 10 pgs.

37. District’s Combined Answer & Motion to Dismiss (IHRS No. 580008), 9/23/22, 12 pgs.

Ex. A - Letter to parent from [REDACTED] w/ attachments (emails), 9/8/22, 14 pgs.

Ex. B - Pendency Agreement, 9/20/19, 3 pgs.

38. District’s Combined Answer & Motion to Dismiss (IHRS No. 582248), 10/7/22, 19 pgs.

Ex. A – Due Process Complaint w/ inferred paragraphs, rec’d 9/28/22, 2 pgs.

Ex. B – Prior Written Notice (PWN), 9/9/22, 3 pgs.

Ex. C – Letters to parents from [REDACTED], various dates, 16 pgs.

Ex. D – Due Process Complaint (IHRS No. 572896), 4/11/22, 9 pgs.

Ex. E – Letter to parents from [REDACTED], 7/11/22, 1 pg.

Ex. F – Transcript – Annual Review, 8/1/22, 60 pgs.

39. District’s Combined Answer & Motion to Dismiss (IHRS No. 585749), 10/24/22, 27 pgs.

Ex. A – Due Process Complaint w/ inferred paragraphs, rec’d 10/14/22, 2 pgs.

Ex. B – Letter to [REDACTED] from [REDACTED], 3/5/21, 2 pgs.

Ex. C – Findings of Fact & Decision (IHRS No. 549825), 8/8/21, 33 pgs.

Ex. D – Parents’ Post-Hearing Brief (IHRS No. 549825), 8/4/21, 33 pgs.

Ex. E – Decision & Order (IHRS Nos. 552466 & 552467), 8/13/21, 23 pgs.

Ex. F – Due Process Complaint (IHRS 552466), rec’d 6/2/21, 2 pgs.

Ex. G – Decision & Order (IHRS No. 556183), 11/12/21, 15 pgs.

Ex. H – Due Process Complaint (IHRS 556183), rec’d 8/30/21, 3 pgs.

Ex. I – Complaint, [REDACTED], 21 cv 3264, filed 6/9/21, 12 pgs.

40. District’s Combined Answer & Motion to Dismiss (IHRS No. 588788), 11/9/22, 20 pgs.

Ex. 1 – Affidavit of [REDACTED in Opposition to OTSC, 10/27/22, 9 pgs. ex. A – Pendency Agreement, 9/20/19, 3 pgs. ex. B – Efforts to Find Replacement Teacher, various dates, 21 pgs. ex. C – Letter to parents from [REDACTED], 10/21/22, 1 pg. ex. D – Email from parent, 10/22/22, 1 pg. ex. E – Letter to parents from C. Probst, 10/24/22, 1 pg. ex. F – Job Posting, 10/26/22, 1 pg.

Ex. 2 - Order to Show Cause (OTSC) & Complaint, [REDACTED], 22 cv 6467-JS-LGD (EDNY), rec’d 10/26/22, 10 pgs.

Ex. 3 – Minute Entry, [REDACTED], 22 cv 6467-JS-LGD (EDNY), 10/28/22, 4 pgs.

Ex. 4 – Transcript – Order to Show Cause Hearing, 10/28/22, 33 pgs.

41. Parent’s Affirmation in Opposition to Motion to Dismiss (IHRS No. 588788), 11/11/22,

2 pgs.

Ex. 1 – Parent’s Brief, [REDACTED, 22 cv 6467-JS-LGD (EDNY), undated 10 pgs.

42. District’s Combined Answer & Motion to Dismiss (IHRS No. 593648), 1/3/23, 22 pgs.

Ex. 1 – Due Process Complaint w/ inferred paragraphs, rec’d 12/19/22, 2 pg.

Ex. 2 – Pendency Agreement, 9/20/19, 3 pgs.

Ex. 3 – Educational Consultant Annual Report, 6/10/22, 3 pgs.

Ex. 4 – Letter to parents from [REDACTED], 12/15/22, 2 pgs.

Ex. 5 – Affidavit of M. Ambrosini in Opposition to OTSC, [REDACTED],

22 cv 6467-JS-LGD (EDNY), 10/27/22, 9 pgs.

Ex. 6 - Order to Show Cause (OTSC) & Complaint, [REDACTED],

22 cv 6467-JS-LGD (EDNY), rec’d 10/26/22, 10 pgs.

Ex. 7 – Transcript – Order to Show Cause Hearing, 10/28/22, 33 pgs.

Ex. 8 – Letter to parents from [REDACTED], 12/8/22, 1 pg.

Ex. 9 – District’s Memorandum of Law in Opposition to OTSC, [REDACTED],

22 cv 6467-JS-LGD (EDNY), 12/15/22,

9 pgs.

Ex. 10 – Parent’s Reply Brief, [REDACTED], 22 cv 6467-JS-LGD (EDNY), 12/19/22, 6 pgs.

43. School District’s Post-Hearing Memorandum of Law, 4/17/23, 30 pgs.

IMPARTIAL HEARING OFFICER

I. Email to IHO from parent (subpoena requests), 1/13/23, 2 pgs.

Ex. A – [REDACTED] Subpoena, 1 pg.

Ex. B – [REDACTED] Subpoena, 1 pg.

Ex. C – [REDACTED] Subpoena, 1 pg.

Ex. D – [REDACTED] Subpoena, 1 pg.

Ex. E – [REDACTED] Subpoena, 1 pg.

Ex. F – [REDACTED] Subpoena, 1 pg.

Ex. G – [REDACTED] Subpoena, 1 pg.

Ex. H – [REDACTED], 1 pg.

Ex. I – Email Chain (class tour), various dates, 4 pgs.

II. District Memorandum of Law in Opposition to Subpoenas, 1/17/23, 8 pgs.

III. Parent’s Email Reply in Support of Subpoenas, 1/17/23, 1 pg.

IV. Interim Order (Subpoenas), 2/26/23, 9 pgs.

V. Signed Subpoena [REDACTED], 2/26/23, 1 pg.

VI. Signed Subpoena [REDACTED], 2/26/23, 1 pg.

VII. Signed Subpoena [REDACTED], 2/26/23, 1 pg.

VIII. Order on Consolidation (IHRS Nos. 582248 & 580008), 12/15/22, 5 pgs.

IX. Order on Consolidation (IHRS Nos. 588788 & 585749), 12/15/22, 5 pgs.

X. Order on Consolidation (IHRS Nos. 585749 & 580008), 12/15/22, 5 pgs.

XI. Order on Consolidation (IHRS Nos. 593648 & 580008), 1/16/23, 5 pgs.

XII. Hearing Notice, 1/25/23, 1 pg.

XIII. Extension Order, 11/29/22, 1 pg.

XIV. Extension Order, 12/29/22, 1 pg.

XV. Extension Order, 1/28/23, 1 pg.

XVI. Extension Order, 2/27/23, 1 pg.

XVII. Extension Order, 3/29/23, 1 pg.

Footnotes

[1] References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are noted as “Ex.” References to exhibits within exhibits are noted as “ex.”

[2] A separate pre-hearing conference for IHRS No. 593648 was held on January 11, 2023, during which it was agreed to also consolidate that matter with IHRS No. 580008.

[3] Following my appointment to this case, the parties moved to extend the case compliance date in this matter several times in order to accommodate the availability of the parties’ respective witnesses and to allow for adequate time for my review of the hearing record taken on the extensive issues raised in the parent’s due process complaint. In considering those requests, I weighed the cumulative impact of the relevant factors and found that the stated reasons justified the delay in the resolution of the matter and were in accordance with the requirements of due process. Accordingly, requests for extensions of the case compliance date were granted (R. 427-428; Exs. IHO-XIII - IHO-XVII).

[4] Intellectual disability means significantly subaverage general intellectual functioning, existing concurrently with deficits in adaptive behavior and manifested during the developmental period, that adversely affects a student’s educational performance. 8 NYCRR § 200.1(zz)(7).

[5] See Application of a Student with a Disability, Appeal No. 23-022; Application of a Student with a Disability, Appeal No. 22-168; Application of a Student with a Disability, Appeal No. 22-163; Application of a Student with a Disability, Appeal No. 22-147; Application of a Student with a Disability, Appeal No. 22-102; Application of a Student with a Disability, Appeal No. 22-010; Application of a Student with a Disability, Appeal No. 21-249; Application of a Student with a Disability, Appeal No. 21-181; Application of a Student with a Disability, Appeal No. 21-019; Application of a Student with a Disability, Appeal No. 20-135; Application of a Student with a Disability, Appeal No. 19-121; Application of a Student with a Disability, Appeal No. 19-021; Application of a Student with a Disability, Appeal No. 18-110; Application of a Student with a Disability, Appeal No. 18-075; Application of a Student with a Disability, Appeal No. 18-064; Application of a Student with a Disability, Appeal No. 17-079; Application of a Student with a Disability, Appeal No. 17-015; Application of a Student with a Disability, Appeal No. 16-040.

[6] The newly hired teacher joined the District’s teaching staff as a District employee, rather than as an independent contractor or an employee of an agency contracting with the District or the student’s home school district (Ex. SD-1 at ¶ 74).

[7] The term “free appropriate public education” means special education and related services that – (A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the standards of the State educational agency; (C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program required under section 1414(d) of this title. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17.

[8] The Supreme Court has stated that even if it is unreasonable to expect a student to attend a regular education setting and achieve on grade level, the educational program set forth in the student's IEP "must be appropriately ambitious in light of his [or her] circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives." See Endrew F., 137 S. Ct. at 1000.

[9] The parent’s request for an order compelling completion of the annual review was rendered moot by the completion of the annual review on October 13, 2022.

[10] The parent’s request for an order compelling the District to submit an age variance was rendered moot by rulings made in [REDACTED], S.Ct. Albany Co., Index No. 900723-22 Dec. 13, 2022), p. 6, where the Court held that its August 2022 decision granting the parent’s Article 78 Petition “effectively renewed” the District’s age variance application for the 2022/23 school year.

[11] For the period October 24, 2022 though October 28, 2022, the student was entitled to special education instruction, two (2) hours per day for five (5) days per week (Ex. SD-15 at ¶ 3), and special instruction, four (4) times per week for ninety (90) minutes per session (Ex. SD-31 at 18).