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CASE NUMBER: 580120 - NYC: 232084
FINDINGS OF FACT AND DECISION
Case Number: 232084
Student’s Name[1]: REDACTED (“Student”)
Date of Birth: REDACTED
School District: NYC REDACTED
Hearing Requested by: REDACTED (“Parents”)
Request Date/Date Complaint Filed: 09/06/2022
Date(s) of Hearing: 11/09/2022, and
11/14/2022
Actual Record Closed Date: 11/18/2022
Date of Decision: 11/18/2022
Date of Distribution if Different than Decision Date: N/A
Hearing Officer: Leah Martin, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 9, 2022
For the Student:
REDACTED (“Parents’ Counsel”)
For the Department of Education:
REDACTED (“DOE Hearing Representative”)
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 14, 2022
For the Student:
REDACTED (Parents’ Counsel)
For the Department of Education:
REDACTED (DOE Hearing Representative)
INTRODUCTION AND PROCEDURAL HISTORY
This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parents’ Due Process Complaint (“DPC") filed on September 6, 2022, (Ex. B).[2] In the DPC, the Parents alleges that the Department of Education (“DOE”) failed to offer the student a free appropriate public education (“FAPE”) on an equitable basis under the Individuals with Disabilities Education Act (“IDEA”) and Section 3602-c of the Education Law for the 2022-23 school year. (Ex. B).
I was appointed on September 19, 2022. On October 5, 2022, a pendency hearing (“PEND”) was held virtually. At the PEND, Parents’ Counsel and the DOE Representative (“DOE Pre-hearing Representative”) appeared. Both parties agreed that the student’s pendency placement lies in the 12/9/20 IESP and a pendency order was issued memorializing their agreement. See Order on Pendency. On October 7, 2022, the same representatives appeared virtually for a pre-hearing conference (“PHC”). At the PHC, both parties agreed that the entire hearing could be concluded in two hours, and a hearing date was scheduled for November 2. See PHC Summary and Order, p. 2. On November 1, the DOE advised by email that the DOE Pre-hearing Representative had resigned, and a new representative had been assigned for the hearing (“DOE Hearing Representative”). At that time, Parents’ counsel requested that the November 2 hearing date be converted to a status conference so that new hearing dates could be scheduled with the new DOE representative. At the November 2 status conference, new hearing dates were scheduled for 11/9/22 and 11/14/22. That same day, Parents’ disclosures containing proposed exhibits A through G were submitted by email. No disclosures were submitted by the DOE.
On November 9 and 14, 2022, the hearing was held. It was a closed hearing. DOE Hearing Representative and Parents’ Counsel were present for both hearing dates, with no other attendees. The DOE offered no exhibits or witnesses into evidence. (Tr. 1-4, 6).[3] Parents’ counsel entered 7 exhibits (A-G) into evidence without objection. (Tr. 1-5-6). On the second day of hearing, the DOE rested after opening statements. (Tr. 2). The Parents’ only witness (“Director”) gave testimony by affidavit, and the DOE had no questions for cross-examination, so the witness did not appear virtually. The Parents rested and then both parties gave brief oral closing remarks. (Tr. 2). The DOE conceded that the student was entitled to equitable services for the 2022-23 school year. (Tr. 2). Their sole argument was that the Parents’ rejection of the proposed resolution agreement, sent by the DOE after the first day of hearing on November 9, should weigh against them regarding the equities. (Tr. 2). The Parents’ June letter requesting equitable services was entered into evidence as an IHO exhibit (Ex. I).[4] The record was left open after the hearing to allow for receipt of the transcript. (Tr. 2). The record was closed on November 18, 2022.
JURISDICTION
The due process hearing was held, and a decision in this matter is being rendered, pursuant to the IDEA, 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law §§ 3602-c, 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.
BACKGROUND
The student is currently classified as speech or language impaired. (Ex. B). The student is now in the ninth grade and has been attending parochial school (“the Parochial School”). (Id.; C-4). The student has been attending parochial school for the last several years and has been receiving special education and related services [special education teacher support services (“SETSS”), speech-language therapy (“SLT”), occupational therapy (“OT”), and counseling (“CO”)] on an equitable basis. (Tr. 2; Ex. B). The student exhibits difficulty with focus, receptive and expressive language, literacy, and social emotional concepts. (Ex. C-4). The Parents contend that the DOE failed to hold a review meeting of the committee on special education (“CSE”) or to develop or implement an individualized education services program (“IESP”) or re-evaluate the student for the 2022-23 school year. (Ex. B; Tr. 2). Parents contend that they were forced to find a private provider for the necessary SETSS services, due to the DOE’s inaction. (Ex. B; Tr. 2). The Parents request funding for 5 hours per week of individual, bilingual/Yiddish SETSS by the Parents’ chosen service provider (“Service Provider”), at an enhanced rate of $197 per hour, as well as related service authorizations for the student’s related services (2x30 per week of SLT, 2x30 per week of OT, and 2x30 per week of CO, all on an individual basis in Yiddish). (Ex. B; Tr. 2).
ISSUES
At the PHC, the following issues were certified for decision at the hearing: (1) whether the DOE failed to timely and fully evaluate the student in all areas of suspected disability, and (2) whether the DOE’s failure to develop and implement an IESP for the 2022-23 school year resulted in a denial of a FAPE and equitable services. See PHC Summary and Order, p. 3. There are no factual issues in dispute. At the hearing, the DOE did not contest the nature or amount of the special education and related services requested, nor did they dispute the requested hourly rate for reimbursement. (Tr. 2).
FINDINGS OF FACT
After a full review of the record generated at the hearing, I make the following findings of fact.[5] Parents here requested the provision of equitable services by letter in June of 2022.[6] (Ex. I-1). The DOE has not contested that they failed to hold an annual CSE review meeting or draft an IESP for the 2022-23 school year. While the DPC contends that the student has not been timely or fully re-evaluated in all areas of suspected disability (Ex. B-2-3), there is no evidence in the record as to when the last triennial reevaluation was completed. However, the DOE did not dispute the Parents’ claim that they failed to conduct a timely triennial evaluation.
Additionally, it is undisputed that the DOE has failed to hold a CSE review meeting or develop or implement an IESP since 2020. (Ex. B; Tr. 2). The last-agreed-upon IESP for the student called for the provision of 5 periods per week of SETSS, in Yiddish, 2x30 minute sessions per week of SLT, in Yiddish, 2x30 minute sessions per week of OT, in Yiddish, and 2x30 minute sessions per week of CO, in Yiddish. (A-8). Although the 12/9/20 IESP provides for SETSS in a group setting, Parents requested the provision of SETSS on an individual basis at the hearing, and the DOE did not object. (Tr. 2). All the related services (SLT, OT, CO) provided in the 12/9/20 IESP are on an individual basis (“1:1”). (Ex. A-8).
On July 12, 2022, a contract was executed between the student’s mother and the Service Provider to provide SETSS to the student. (Ex. D). By contract, the Service Provider agreed to carefully screen the student and match them to the appropriate individual providers, provide ongoing supervision and training to the individual providers, coordinate services with the student’s school, provide training seminars for the Parents, provide educational materials and progress reports, and assist Parents with CSE meetings and/or any due process hearing. (Ex. D). The intake process involves a review of any prior evaluations, progress reports, or clinical materials, and matching to the appropriate individual instructor. (Ex. C-2). Additionally, the Director visits the student’s school to observe the student in the classroom and collaborate with the providers and the school. (Id.). The student’s instructional program was chosen specifically to align with the student’s needs, in consultation with her individual providers, their supervisors, and the student’s classroom teachers. (Parent Ex. C-4).
The student has made progress towards her academic goals in her SETSS work with the Service Provider. (Ex. E; C-4). I credit the undisputed opinion of the Service Provider and Director that a continuation of 5 hours of individual SETSS per week is warranted (Ex. C-4; E-6); there is no evidence to the contrary and the DOE has not objected. The Service Provider is currently providing the student with the recommended five hours per week of individual SETSS in Yiddish. (Ex C-3-4). SETSS are provided by one provider (“Individual Provider”) who is certified to teach students with disabilities in New York and has experience working with students with learning and language delays. (Ex. C-3; F; G). The Individual Provider receives a rate of $100 per hour, but the Service Provider charges $197 per hour to account for additional overhead. (Ex. C-3). The Parents are financially obligated to pay $197 per hour for the SETSS, for a total of $39,400 (five hours per week for 40 weeks). (Ex. C; D). The overhead costs include a team of 13 full-time supervisors, a consultation team, and a library of resources and educational materials. (Ex. C-2-3). The DOE has not objected to the hourly rate charged by the Service Provider.
LEGAL FRAMEWORK
FAPE
The IDEA provides that children with disabilities are entitled to a FAPE. 20 U.S.C. §1400 (d)(1)(A). 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”). 34 C.F.R. §300.13. 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. Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). To meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2017). The IEP must be reviewed at least annually, 34 C.F.R. §300.324(b)(1)(i), and a district must have an IEP in place for each student with a disability within its jurisdiction at the beginning of each school year, 8 NYCRR §200.4(e)(1)(ii); Davis v. Wappingers Cent. Sch. Dist., 772 F. Supp. 2d 500, 508 (S.D.N.Y. 2010).
For procedural violations, a denial of a FAPE only occurs “if the procedural inadequacies- (I) impeded the child’s right to a [FAPE]; (II) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a [FAPE] to the parents’ child; or (III) caused a deprivation of educational benefits.” 20 U.S.C. §1415 (f)(3)(E)(ii); 34 C.F.R. §300.513(a)(2). Further, under caselaw, failure to implement substantial or significant provisions of an IEP is a denial of a FAPE. J.L. v. New York City Dep't of Educ., 324 F. Supp. 3d 455, 467 (S.D.N.Y. 2018); see also Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 (5th Cir. 2000); Davis v. Wappingers Cent. Sch. Dist., 431 Fed. App. 12, 14 (2d Cir. 2011).
A board of education may be required to pay for educational services obtained unilaterally by the child's parent, if (1) the services offered by the board of education were inadequate or inappropriate, (2) the services selected by the parent were appropriate, and (3) equitable considerations support the parent's claim. School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993). These three conditions (prongs) constitute the Burlington/Carter test.
A unilateral placement is appropriate if it is “reasonably calculated to enable the child to receive educational benefits.” Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006); Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir. 2007)(“[Parents] 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.”). Educational progress can be a factor weighing in favor of the appropriateness of a unilateral placement. Frank G., 459 F.3d at 365. To qualify for reimbursement under the IDEA, parents need not show that the unilateral placement is perfect or that it meets all state educational standards. Id. at 364-65; T.K. v. New York City Dept. of Educ., 810 F.3d 869, 878 (2d Cir. 2016); M.S. v. Yonkers Bd. of Educ., 231 F.3d 96, 105 (2d Cir. 2000).
The IDEA permits awards of direct payment to unilateral placement providers where the parents have not yet made payments but are legally obligated to do so. See Mr. A. ex rel. D.A. v. New York City Dep’t of Educ., 769 F. Supp. 2d 403, 427 (S.D.N.Y. 2011). Under Burlington/Carter, if the parents are financially obligated to pay for the contracted services and have met their prong 2 burden, the contract must be fully reimbursed or directly funded by the District unless, as a matter of equitable considerations, the costs are excessive or should otherwise be reduced. See Florence Cnty. Sch. Dist. Four v. Carter, 510 U.S. 7, 16 (1993) (“Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable”); J.S. v. Scarsdale Union Free Sch. Dist., 826 F.Supp.2d 635, 671 (S.D.N.Y. 2011) (“[T]his Court has broad discretion to consider the range of all relevant facts in determining whether and to what extent awarding relief is equitable.”).
The IDEA requires that school districts re-evaluate students with disabilities at least once every three years, unless the parent and the District agree that re-evaluation is unnecessary. 34 C.F.R. §300.303(b). Additionally, a district must honor a parent’s request for re-evaluation if one has not occurred within the previous 12 months. M.S. v. Lake Elsinore Unified School District, 69 IDELR 148 (9th Cir. 2017). As part of any re-evaluation, the CSE must review existing evaluative data on the student, including any private evaluations, classroom observations, and observations by teachers and service providers, and then conduct further assessments if necessary. 34 C.F.R. §300.305. The failure to conduct further assessments can result in a denial of a FAPE if more information is needed to develop an appropriate IEP. See, e.g., New Mexico Pub. Educ. Dep’t, 115 LRP 12278 (SEA NM 03/02/15); James v. Dist. of Columbia, 68 IDELR 11 (D.D.C. 2016).
In New York, school districts have the burden of proof, including the burdens of persuasion and production, in IDEA due process hearings, except that a parent seeking reimbursement for a unilateral private placement has the burdens of production and persuasion on the appropriateness of such placement. NYS Educ. Law §4404(1)(c).
DUAL ENROLLMENT
Pursuant to New York’s “dual enrollment” statute, Educ. Law §3602-c, New York State resident nonpublic school students are entitled to an IESP developed by the school district where the nonpublic school is located and the IESP must be developed in the same manner and with the same content as an IEP. The IDEA confers no individual entitlement to special education or related services upon students who are enrolled by their parents in nonpublic schools. See 34 CFR 300.137(a). Under State law, however, parents who have privately enrolled their child in a nonpublic school may seek educational "services" for their child with a disability by filing a request in the district where the nonpublic school is located on or before the first day of June preceding the school year for which the request for services is made. Educ. Law §3602-c(2). Then, the district of location's CSE must review the request and "develop an [IESP] for the student based on the student's individual needs in the same manner and with the same contents as an [IEP]." Educ. Law §3602-c(2)(b)(l).
Special education services under an IESP must be provided on an equitable basis as compared the services provided to other students with disabilities attending public schools and nonpublic schools. Section 3602-c also enables a parent to initiate an impartial hearing, pursuant to Educ. Law §4404, to challenge an IESP.
State law requires the District to locate and assign publicly-provided teachers for all dually-enrolled students. Educ. Law §3602-c(2)(a); see also Office of Special Educ. Memos, Clarifying Information Related to Contracts for Instruction, July, 2009 (available at http://www.p12.nysed.gov/resources/%20contractsforinstruction/documents/contractsforinstruction2009.pdf) and Q and A related to Contracts for Instruction, June 2010 (available at http://www.p12.nysed.gov/%20resources/contractsforinstruction/documents/contractsforinstruction2010covermemo.pdf) (both explaining that the DOE cannot contract for educational services with nonprofits or other agencies, except in rare circumstances not applicable here). The DOE’s widespread abrogation of their duty to provide equitable services has been discussed at length in several recent State Review Officer decisions. See, e.g., Application of a Student with a Disability, Appeal No. 21-119 (Aug. 6, 2021)(collecting cases). Generally, it appears that the DOE has been relying on parents to obtain the services of independent providers to implement SETSS and related services contained in a child’s IESP, and then often disputing the rate of such services at due process hearings. See id.; Application of a Student with a Disability, Appeal Nos. 21-029; 21-028; 21-025; 20-141; 20-140; 21-115; 20-099; 20-094; 20-087.
ANALYSIS AND CONCLUSIONS OF LAW
Parents contend that the DOE has failed to conduct a timely re-evaluation of the student. Although there is limited evidence in the record to support their claim, the DOE has the burden of proof on this issue. Accordingly, by failing to present witnesses or evidence to dispute the Parents’ claim that the student’s triennial evaluation is past due, I find that the District has failed to meet its burden on this issue.
Furthermore, it is undisputed that the DOE failed to develop or implement an IESP for the student for the 2022-23 school year, despite their agreement that the student is entitled to equitable services. The District provided no evidence to suggest that it even attempted to arrange for the delivery of equitable services here. Thus, the Parents were forced to arrange for services on their own. In doing so, they unilaterally chose a provider and entered a service contract. I agree with the analysis in Application of a Student with a Disability, Appeal No. 21-119, and many of the above SRO decisions, which liken these situations to tuition reimbursement cases; the District can be made to pay for special education services that a parent has paid or become legally obligated to pay, even though the District would not have been able to contract for such services directly. Accordingly, I will utilize the three-prong Burlington/Carter analysis in deciding this issue.
As for prong 1, the District is not contesting that it failed to draft and implement an IESP for the current school year. So, they have essentially conceded that they cannot meet their prong 1 burden. Since Parents timely notified the District of their request for equitable services, the student was entitled to receive them for the 2022-23 school year. I find that the District’s failure to develop and implement an IESP prior to the start of the school year constitutes a denial of the student’s equitable entitlement to special education services for the 2022-23 school year.
As to prong 2, I find that the Parents have met their burden. At the hearing, the District did not contest the appropriateness of the requested special education program and related services, nor did they contest the qualifications of the Service Provider or the reasonableness of the requested enhanced rate. The appropriateness of the program and services requested by the parent is also supported by the record. (Ex. B, C, E). The requested services are nearly identical to the last-agreed-upon program. (Ex. A). Moreover, the Service Provider conducted a detailed intake process with the student and specially designed her SETSS program to meet her unique needs. (Ex. C, E). The District did not object to the qualifications of the Individual Provider, and I find that they are well-qualified to provide the relevant services. Thus, there is no question that the SETSS provided by the unilateral placement, and the other requested related services, are appropriate here. Furthermore, the Parents have demonstrated that they are legally obligated to pay for the requested SETSS at the enhanced rate of $197 per hour. (Ex. C; D).
Since the Parents have met their prong 2 burden, the only issue left to be addressed is prong 3 – whether the equities favor reimbursement and/or direct payment to the Service Provider for the contracted services. The DOE’s sole argument at the hearing was that the equities disfavor the Parents because they did not negotiate a resolution in good faith. However, a resolution offer was not made by the DOE until after the first day of hearing had concluded and it did not meet the Parents’ requirements. Furthermore, no timely resolution meeting was held here by the DOE. The Parents have no obligation to accept a resolution offer, especially one that is made after the hearing has commenced. If anything, it was the DOE’s belated negotiations that weigh against them in terms of equities, not the opposite. Accordingly, I find that there are no equitable considerations that weigh against the Parents here.
I have reviewed the parties’ remaining contentions and find them to be either unnecessary to this decision, without merit, beyond my jurisdiction, or without sufficient basis in the record for a finding. Accordingly, any relief not specifically discussed in this decision is denied, and all of the Parent’s remaining claims not discussed herein are dismissed with prejudice.
DECISION AND ORDER
Based on the record in this proceeding, I find that the student is entitled to the requested services for the entirety of the 2022-23 10-month school year [5 hours per week of SETSS, 1:1, in Yiddish, at the enhanced rate of $197 per hour, 2x30 minute sessions per week of SLT, 1:1, in Yiddish, 2x30 minute sessions per week of OT, 1:1, in Yiddish, and 2x30 minute sessions per week of CO, 1:1, in Yiddish]. Related service authorizations should be issued for those services not provided by the Service Provider, and direct payment made to the Service Provider for the enhanced-rate SETSS. Finally, given the DOE’s failure to show that the student has been timely re-evaluated, I will order a comprehensive re-evaluation. The CSE should reconvene to consider the evaluation results and develop a new IESP prior to the next school year.
IT IS THEREFORE ORDERED:
- • THAT the New York City Department of Education shall (to the extent not previously funded through pendency) provide direct payment to a provider of the Parents’ choosing, at a rate up to $197 per hour, for 5 hours per week of individual, Yiddish, SETSS for the 2022/23 10-month school year, by issuing payment directly to the service provider upon submission of invoices for the SETSS rendered to the Student during that specified period, up to a maximum of 200 hours; it is further
- • ORDERED that the New York City Department of Education shall provide funding (to the extent not previously funded through pendency) to the Parents for 2x30 minute sessions per week of individual, Yiddish SLT, 2x30 minute sessions per week of individual, Yiddish OT, and 2x30 minute sessions per week of individual, Yiddish CO for the 2022-23 10-month school year, by issuing related service authorizations to the Parents, for 40 weeks of services; it is further
- • ORDERED that the New York City Department of Education shall, within 90 days of the date of this order, conduct a comprehensive re-evaluation of the student in all areas of suspected disability; and it is further
- • ORDERED that the New York City Department of Education’s Committee on Special Education shall reconvene to develop a new IESP after considering, at a minimum but not limited to, the re-evaluation results and the continuum of equitable programs and services, in advance of the 2023-24 school year.
SO ORDERED.
DATED: November 18, 2022 Leah Martin, Esq._(Signed Electronically)_
Impartial Hearing Officer
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of this decision, the parent and/or the Public-School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.
An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.
APPENDIX A – DOCUMENTATION ENTERED INTO THE RECORD
PARENT EXHIBITS
Exhibit
Document
Date
Pages
A.
Individualized Education Services Program (“IESP”)
12/9/20
11
B.
Due Process Complaint/Request for Pendency
9/6/22
5
C.
Affidavit in Lieu of Direct Testimony
11/1/22
4
D.
Contract
6/12/22
3
E.
Progress Report
11/11/21
6
F.
Teacher Certification
Undated
2
G.
Teacher Certification
Undated
1
DOE’S EXHIBITS
Exhibit
Document
Date
Pages
-
-
-
-
IHO’S EXHIBITS
Exhibit
Document
Date
Pages
I.
June Request Letter
June, 2022
1
Footnotes
[1] Personally identifiable information is attached as Appendix B, “Redaction Identification Page,” to this decision and must be removed prior to public distribution.
[2] Exhibits shall be referred to as follows: Ex., followed by lettered designations for Parents’ Exhibits, numbered designations for DOE’s Exhibits, and roman numeral designations for Impartial Hearing Officer’s Exhibits. Exhibit designations will be followed by the page numbers as needed and appropriate. For example, Parents’ Exhibit A, page 1, will be referred to as (Ex. A-1).
[3] The hearing transcript will be referred to as “Tr.” followed by day of the hearing (1 or 2) and the page number within the transcript for that hearing day, if possible. For example: (Tr. 1-1). At the time of this decision, the transcript for the second hearing day had not yet been received. So, references to that transcript will be designated as (Tr. 2) without corresponding page numbers.
[4] This document was not included in Parents’ 5-day disclosures because they did not obtain a copy until after disclosures were due. The DOE objected to it being entered on Parents’ case, due to the belated disclosure. However, given that the letter was served on them in June and was already known to them, and the fact that they are not contesting the student’s entitlement to equitable services, I admitted it into evidence over objection to complete the record.
[5] The facts contained in the “Background” section above are incorporated here as well.
[6] Although the request letter is dated “June, 2022,” with no more specific date given, the District did not argue that the notice was untimely. The District did not file a response in this case asserting any defense based on this issue, and they conceded the student’s entitlement to equitable services at the hearing. For all these reasons, any argument that the Parent failed to meet the June 1 deadline is deemed waived and the notice is presumed to be timely.