NY IHO #238389: New York City... | Special Education Law

NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.

CASE NUMBER: 587039 – NYC: 238389

FINDINGS OF FACT AND DECISION

NAMES AND TITLES OF PERSONS WHO APPEARED ON 11/29/2022

(All Parties Appeared Via Teleconference)

For the Student:

[REDACTED], ESQ., Attorney

For the Department of Education:

[REDACTED], ESQ., Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED ON 12/13/2022

(All present by video or telephone)

For the Student:

[REDACTED], ESQ., Attorney

[REDACTED], Parent Student

[REDACTED], Ed.D.

[Redacted]per School ELA Teacher, The [REDACTED]

For the Department of Education:

[REDACTED], ESQ., Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED ON 12/20/2022

(All present by video or telephone)

For the Student:

[REDACTED], ESQ., Attorney

[REDACTED], Parent Student

For the Department of Education:

[REDACTED], ESQ., Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED ON 01/20/2023

(All present by video or telephone)

For the Student:

[REDACTED], ESQ., Attorney

[REDACTED], Parent Student

For the Department of Education:

[REDACTED], ESQ., Attorney

DOCUMENTATION ENTERED INTO THE RECORD PARENT

EX. Parent Documents DATE NAME OF DOCUMENT Page(s) – Entered

A. Complaint 12 – 11/29/22 09/15/2022

B. Individualized Education Program (IEP) 15 – 12/13/22 01/29/2021

C. Neuropsychological Evaluation 17 - 12/13/22 05/01/2018

D. Neuropsychological Evaluation 29 - 12/13/22 E 01/16/2019 Classroom Observation 1 - 12/13/22 11/05/2021

F. Social History Report 3 - 12/13/22 12/06/2018

G. Class Schedule 1 - 12/13/22 2021-2022

H. Class Schedule 1 - 12/13/22 2022-2023

I. Attendance Records 1 - 12/13/22 2021-2022

J. Attendance Records 1 - 12/13/22 2022-2023

K. 2021-2022 Tuition Affidavit 1 - 12/13/22 10/22/2022

L. 2022-2023 Tuition Affidavit 1 - 12/13/22 10/22/2022

M. Enrollment Contract 17 - 12/13/22 12/22/2021

N. Enrollment Contract 20 - 12/13/22 03/06/2022

O. [REDACTED] Program Description 3 - 12/13/22 undated

P. Academic Progress Report 21 - 12/13/22 Spring 2022

Q. Therapeutic Progress Report 4 - 12/13/22 R undated Classwork Sample 2 - 12/13/22 S undated Writing Sample 2 - 12/13/22 T Fall 2021 Tutoring Invoices 4 - 12/13/22 U Fall 2021 Proofs of Tutoring Payments 6 - 12/13/22 Spring 2022

V. Ten Day Notice (“TDN”) and Request for IEE 4 - 12/13/22 W 08/17/2022 TDN 3 - 12/13/22 X 12/21/2022 Executive Functioning Center of New York 22 – 01/20/23 ([REDACTED]) Provider Bios 12/21/2021

Y. [REDACTED] Program Description 3 – 01/20/23 Z 12/21/2022 [REDACTED] “FaQs” 2 – 01/20/23 AA 12/21/2022 [REDACTED] “What You Need to Know to Begin” 2 – 01/20/23 BB 12/21/2022 [REDACTED] “S[Redacted]port for Research” 2 – 01/20/23 CC 12/21/2022 [REDACTED] “Testimonials” 2 – 01/20/23 DD 02/17/2023 Petitioner’s Closing Statement and Brief 30 – 02/17/2023 12/21/2022

DEPARTMENT OF EDUCATION (DOE)

Entered 01/10/2023 None

IMPARTIAL HEARING OFFICER

Entered 11/29/2022 I Notice of Appointment, 11/23/2022, 4 pages Entered 02/17/2023 II DOE Closing Statement, 02/13/2023, 12 pages

INTRODUCTION

On 11/23/2022, I was appointed the Impartial Hearing Officer (“IHO”) by the Department of Education’s Impartial Hearing Office to conduct an impartial hearing pursuant to the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f) and Article 89 of the Education Law of the State of New York.

Hearing commenced, on 11/29/2022, to allow an opportunity for the DOE to defend against the allegations contained in the DPC.

Appended to the record are lists of persons in attendance and the documents received in evidence.

Due Process Complaint (DPC) allegations relate to the 21-22 and 22-23 school year, and include:

- DOE denial of a Free Appropriate Public Education (FAPE) for each school year (Ex A 1); - An Individualized Education Program (IEP) meeting was not held for the 21-

22 school year; - The DOE failed to respond to request for reimbursement of Independent Neuropsychological Evaluation (IEE); and - The DOE failed to develop an IEP for the 22-23 school year. (Ex A 2)

Parent seeks a variety of forms of relief to remedy the alleged failure, including:

- District (DOE) funding for unilateral placement ([REDACTED]), at [REDACTED] ([REDACTED]), for the 21-22 (since January 2022) and 22-23 school years; - Reimbursement for Student Tutoring during the 21-22 school year; - DOE funding for Neuropsychological Evaluation; and - Door to door transportation to and from the [REDACTED]. (Ex A 2-3, A 10-11 & Ex T 25-26)

Parent Attorney advised, at Hearing of 12/13/2022, that transportation relief was no longer being sought. (T 51-52)

JURISDICTION

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

THE POSITION OF EACH PARTY

The Parent Attorney noted, at Hearing, of 11/29/2022, that the 22-23 school year had been referred for potential settlement. (T 5)

The Parent Attorney notes that there was an IEP created for the 21-22 school year, and no IEP was created for the 22-23 school year. (T 6)

The DOE Attorney confirmed the 22-23 school year had been referred for potential settlement. (T 5-6)

Hearing was set to continue, on 12/13/2022. (T 10-11)

The DOE opted not to defend any offer of a Free Appropriate Public Education (FAPE), for the Student, for the 21-22 or 22-23 school years. (T 22)

At Hearing, of 12/20/2022, Parent Attorney advised that evidence was still being gathered regarding the claim for tutoring services. (T 83-84) Another date, of 01/20/2022, was scheduled to continue, and conclude the Hearing.

At Hearing, of 01/20/2023, Parent Attorney submitted additional documents, seeking to s[Redacted]port the allegations contained in the DPC. (Ex X to CC)

Parent presented Witnesses, seeking to s[Redacted]port the allegations contained in the DPC, whose Testimony is considered below: [REDACTED], Ed.D., [Redacted]per School ELA Teacher, The [REDACTED]

Witness Testimony included:

- Witness has a doctorate in educational and organizational leadership, and is the [Redacted]per school English language arts teacher, and Humanities Department head at the [REDACTED] (T 28); - The [REDACTED] is an independent K through 12 school for children who are twice-exceptional, referring to a student who has intellectual giftedness in one or more areas and also a number of different neurodiverse traits, special learning needs (T 29-30); - [REDACTED] [Redacted]per School has 24 students in grade 8 through 12 (T 30); - Witness runs sessions for 9th and 10th graders which include: o Learning Skills: a curriculum developed specifically to help develop students' executive functioning skills as well as building metacognition, study skills, and then as we get into the [Redacted]per School, beginning to build more independent skills, self-advocacy, communication; and o BASIS: students apply these learning skills to one-to-one meetings with teachers, and advisors help students to create meetings with these teachers; an hour, three times a week; there are two half-hour blocks for each BASIS session three times a week; students schedule one-to-one appointments with teachers for extra help, either in content or in skills, to preview, to review, or even to accelerate as needed (T 32); - A review of Witness experience and qualifications (T 32-34); - Witness is Student’s current, [REDACTED] grade English Language Arts (ELA) instructor, in the [REDACTED] [Redacted]per School (T 34); - Familiarity with Student learning profile based [Redacted]on review of Student documents; - Student diagnoses include: ADHD, written expression disorder, social communication disorder, anxiety, and some lagging skills in executive functioning, in particular, working memory (T 35); - Student strengths include expressive and receptive vocabulary, and ability to engage in discussions and conversations (T 36); - Student requires support in areas that include: working memory…being able to organize all the elements of a task in order to complete that task or complete that project; sometimes this looks like task initiation; some struggles with getting started on something; sometimes this looks like a loss of stamina over time, where his ideas all come out onto the paper, but then he sort of loses stamina in how to work through them; sometimes, particularly in discussions, as he begins to lose his stamina or perhaps attention or focus on a task, some of his social and pragmatic language skills need some scaffolding and s[Redacted]port; - Witness does a number of things specifically to support Student, both in the that social pragmatic skill communication, as well as the fluency in the writing, in particular, and other types of classwork and assessments that he completes (T 36-37); - Witness is familiar with other Student suppports delivered, by the [REDACTED], which include: two teachers in each room, a main teacher and the co-teacher; sometimes there are other teachers assisting or coming in or pushing in, like specialists might push in; really small class sizes (six in Student’s class); Student humanities classes were also his homeroom classes, which meant that his advisor was in charge of Learning Skills and BASIS for that class, as well as the ELA and social studies co-teaching; Student was able to have a lot of these executive functioning needs, the organizational planning, time management, one-to-one, small-group conferences, guided notes, sentence starters, things like that introduced and explicitly taught in Learning Skills, and then integrated into his courses; the [REDACTED] team speaks with each other so that there is the same kind of supports that are being used across the classes and across curriculum (T 38-39); - A review of Student progress last school year in areas of: building stamina, particularly in writing assignments; Reading; Math; and in mitigating anxiety (T 40-41); - Student is assessed each year and progress reports issued twice each year (T 41); - For the 22-23 school year the [REDACTED] provides: smaller class sizes “so that these types of one-to-one interventions, these types of one-to-one accelerations, even, can happen while in the classroom and in a way that can still be private in the classroom as well, sort of to protect the students', you know, feelings or emotions as they're getting the s[Redacted]ports that they need as well.” ( T 44); - Each core class has two teachers (T 44-45); - [REDACTED] [REDACTED] grade begins the process of preparing students for college and career readiness; “Learning 17 Skills and BASIS class is begin to give students templates for communication, for self-advocacy. So while we do have flexible deadlines, we want to encourage kids to try to get their work in by the deadline, and if not, communicate why it is that they need extended time, and then be cognizant of what it is that the challenges that's holding them back and how they can use a tool to help themselves overcome that, or how they could meet with us in a one-to-one basis to work on a tool or to find a tool that will work for them. So we're really trying to push towards a little more self-awareness of learners, embedding that in all of our classes, and then templates for communication and self- 6 advocacy.” (T 45-46); - Witness provides supports to the Student that include: technology as opposed to needing to write things down; alternative option for him to be able to use the computer for keyboarding; in particular for his working memory for longer papers or bigger projects…I will present the entire prompt, the entire project or paper or whatever it is, and then break it down one component at a time, with little boxes that go underneath, so that he can -- he doesn't have to hold in his working memory the whole organizational process of the paper, but that he can work on it and build in that -- his words into that document and then create the cohesive piece; I offer multiple entry points to the lesson, so there will always be something on the screen, something they can access digitally, as well as something physically in front of him (T 46-47); - Student meets weekly with the school psychologist and with a speech therapist (T 47); - Student progress is monitored through grades and assignments, weekly meetings, and case conferences (T 48-49); - Progress is reported electronically via a student information system and email (T 49); and - Student has made progress in areas that include: task initiation; writing, and self advocacy. (T 49-50)

[REDACTED], Parent

Student’s father provided Testimony that included:

- He and his wife collaborate on decisions relating to Student’s educational needs (T 54); - Parent’s decided to obtain a private neuropsychological evaluation of the Student, in 2021: “We were increasingly frustrated because we were getting feedback from the teachers of him not being able to address the work assigned to him and were giving us indicators that he had specialized challenges, and we just needed to get more data and information, because what was happening at the time wasn't working, and it seemed like he was having an increasingly more difficult time at school.” (T 54-55); - Evaluation was obtained at a cost of $[REDACTED], which Parents paid (T 55); - Parent Attorney provided notice to the DOE that reimbursement was sought for the private evaluation (T 55); - Parent is not aware of any response from the DOE concerning reimbursement for the evaluation (T 55); - The evaluation revealed Student was very bright in certain areas but had certain challenges which explained why he was having so much difficulty in school, which required specialized learning, prompting the need to find a better fit for Student to get his needs addressed (T 56); - Parent started to engage tutoring services, for the Student, in the summer prior to the 21-22 school year: “…because he was having so many frustrating moments in school that he needed support. And so by the time school started, we had this group of professionals helping to support him throughout the week, every week from September through December, for that whole semester (T 56-57); - Tutors works on areas, and included: a mindfulness coach; sequencing; executive functioning; and writing (T 57-58); - Parent sates that: “…we were getting the indications from his schoolteachers that he had specialized needs in these areas (T 59); - Costs were invoiced several times monthly, and were about $[REDACTED] monthly (T 60); - Student’s teachers were aware of the tutoring and collaborating with the tutors (T 60); - Positive results from the Student attendance, at the [REDACTED]: “day to day, there's none of that constant crisis at the home about what the work is, what he needs to do. He's got a command on that now, today. And when before, and his -- when he was -- this last semester in the public school, we were getting calls from the school psychologist that they were concerned about his mental well-being and that we should be sensitive to that. We don't get those calls anymore. And what we see as a general matter is, since he's been at [[REDACTED]], a much more confident…and responsible learner…from my point of view, there is this magic that happened after going to [[REDACTED]], where there's no more crisis. He's kind of put more in the driver's seat of taking care of what he needs to get taken care of, and he gets the s[Redacted]port he needs…from the school.” (T 61-62); - When the team of tutors was engaged the Parent does not recall signing a contract (T 64); - Witness is not aware of the particular credentials of the tutors (T 64-65 & 67); - Sessions were all remote (T 66); and - Attention was called to Exhibit T, and identified as the first invoice received regarding the tutoring, which were provided via a schedule and on a as needed basis. (T 67-68)

At Hearing, the Parent also sought to support its position via Documentary, which is considered below: A 09/15/2022 Complaint

Details Parent allegations and sought after relief.

B 01/29/2021 Individualized Education Program (IEP)

IEP, developed during the Student’s 20-21, [REDACTED] grade school year, includes:

- Classification of Other Health Impaired (Ex B 1); - Present levels of performance ranging from Mid 2nd to End of 3rd grade (Ex B 1); - Management needs include: o One to one check-ins and prompts to start o pre-selected evidence for him to choose from o Broken down tasks o Checklist with outlined expectations o Graphic organizers to s[Redacted]port his writing organization o Verbal prompting o Check-in questions Visual cues o extended time for tasks that require planning, such as longer writing assignments and developing strategies for word problems in mathematics (Ex B 4); - Goals are included in areas of: Counseling; Humanities/Science, and Writing (Ex B 6-8); - student is recommended to an Integrated Co-Teaching (ICT) Class, with Group Counseling (Ex B 9); - Student Instructional and Functional Levels are set as 6th Grade for Reading and Math (Ex B 13)

The IEP was not defended by the DOE.

Despite the Student functioning far below grade level the IEP does not include any specific academic interventions to bring the Student [Redacted] to grade level. (Ex B 1)

For example student’s independent reading level is 2.7, and there are not reading goals. (Ex B 1)

C 05/01/2018 Neuropsychological Evaluation

Evaluation includes:

- “largely developed, superior skills across several domains assessed” (Ex C 10); - Student did exhibit difficulties in attention, executive functioning, graphomotor, and written expression (Ex C 10-11); - Diagnoses included: o Attention-Deficit/Hyperactivity Disorder, Inattentive Type, mild range (ICD-10 Code: F90.0); this diagnosis captures his difficulties with sustained attention and his tendency to be internally distracted rather than attend to the world around him o Developmental Coordination Disorder (F82) to address significant graphomotor concerns. His challenges in graphomotor and executive functioning are at the root of his below grade level achievement in writing o Specific Learning Disorder in Written Expression (F81.81) o Social Communication Language Disorder (F80.2) and o Anxiety Disorder, Unspecified (F41.9) which subsumes his social anxieties, including his fears of judgment or ridicule from others (Ex C 11); - Recommendations were made for school based s[Redacted]ports, including: a special education teacher; occupational therapy (OT); assistive technology; supports for Executive Functioning and Emotional and Social Development (Ex C 12-13); and testing accommodations (Ex C 14).

E 01/16/2019 Classroom Observation

Student [REDACTED] grade observation indicates incomplete classwork and issues relating to writing. F 12/06/2018 Social History Report

Includes Student diagnoses and educational history, through [REDACTED] grade. D 11/05/2021 Neuropsychological Evaluation

Evaluation completed during Student’s [REDACTED] grade school year, included:

- High Average Aptitude (Ex D 5); - Student functions below his potential (Ex D 16); - Student “’ difficulties stem from neuropsychological problems that lie primarily in executive deficits (difficulty with maintaining an appropriate problem solving set and organizing himself with the purpose of achieving a future goal), attention regulation, variable processing rate, and aspects of memory. He demonstrated difficulty with his ability to consistently sustain and maintain selective attention, shift set appropriately, adjust to change in task requirements, flexibly switch from one response to another, process novel task acquisition, and self-monitor. When the gratifyingly novel and intrinsically interesting higher order skills are not triggered by a task, [Student] has difficulty getting started. Further, inhibitory insufficiency or immaturity may manifest as slow processing, disorganization and rule breaking with intrusions and digressions (e.g., as seen on Color Naming and memory measures characterized by poor semantic clustering, error excesses, poor lev (Ex D 16); - Diagnoses include: o Unspecified Attention-Deficit Hyperactivity Disorder o Unspecified Anxiety Disorder o Unspecified Neurodevelopmental Disorder (weakness in executive functioning) (Ex D 17); - Recommendations include: specialized educational setting; academic s[Redacted]ports in writing, math and reading; support with organizational skills (Ex D 17); support for focus and to sustain attention; and appropriate cues and prompts (Ex D 18) T Fall 2021 Tutoring Invoices Invoice for Student tutoring services in the amount of $[REDACTED]. (Ex T 1)

U Fall 2021 Proofs of Tutoring Payments

Parent tutoring payments, confirming payment of $[REDACTED], $[REDACTED], and $[REDACTED] to [REDACTED] LLC.

X 12/21/2022 [REDACTED] ([REDACTED]) Provider Bios [REDACTED] staff biographies.

Y 12/21/2022 [REDACTED] Program Description

General characteristics of the [REDACTED] services, including those intended to address executive functioning:

- mentoring model that combines a direct and indirect approach to maximize success. Our mentors provide direct support to help students understand their relative strengths and vulnerabilities in each area of [REDACTED]. This work is paired with individualized scaffolding aimed at helping students create systems for better managing time, space, and school items so that they may complete and submit assignments on time; successfully prepare for quizzes and exams; and better navigate multipart projects and research papers. This aspect of our work often includes the active embedding of [REDACTED] scaffolding in academic subject mentoring, thereby allowing students to strengthen underlying academic skill deficits while developing the [REDACTED]s necessary for facilitating long term success in those subjects. (Ex Y 1)

Z 12/21/2022 [REDACTED] “FaQs”

[REDACTED] provides one-on-one, small and large group mentoring and coaching in Executive Function skill acquisition. We offer [REDACTED] Intensives for students, with sessions available during the day, in the evenings, and on weekends either in students’ homes or at one of our Manhattan locations. Remote sessions, facilitated by digital mentoring technologies such as Zoom, FaceTime and Skype, are also possible. (Ex Z 1) O undated [REDACTED] Program Description

General characteristics, of the [REDACTED], include:

- 4th - 8th grade Homerooms/Advisories consist of no more than 12 students; 9th through 12th grade Advisories consist of no more than 15 students; - Classes for grades 8 through 12 are taught by a lead teacher who is a contentarea specialist; - Our program is designed to meet the needs of twice-exceptional students with and without psychoeducational or neuropsychological evaluations and IEPs; - a multisensory approach to learning that allows children who need to “move to learn” to engage in occupational therapy or exercise breaks during the school day both inside the classroom and on a pullout basis; - SMARTBoards in every classroom; - classroom management and shaping behavior includes the research-based practices of the Olweus Bullying Prevention Program, Positive Behavior Interventions and Supports (PBIS), Daily Report Cards (which we refer to as Daily Reviews or DRs), and Ross Greene’s Collaborative and Proactive Solutions (CPS) to help students develop self/social awareness, self-advocacy skills, affective communication skills, and to foster cognitive & behavioral flexibility, as well as pro-social skills (Ex O 1); - Learning is measured in ways appropriate for each student, while we s[Redacted]port the development of wider expressive skill sets through individualized learning specialist & assistive technology s[Redacted]port; - Progress Reports are published twice each school year and are aligned with The Common Core, Next Generation Science Standards, and National Curriculum Standards for Social Studies; - Reading and math are formally assessed twice yearly using normed measurement tools appropriate to the student’s level of skill - Fine and gross motor skills development, as well as self-regulation and core strength improvement, are worked on in our sensory gym with our occ[Redacted]ational therapist (OT) and physical education classes (which happen two to three times weekly; - As with OT, speech therapy and school counseling (with our doctoral-level school psychologists) are available to students [Redacted] to twice weekly, if prescribed; - Formal parent-teacher conferences occur twice each school year with all teachers and therapy providers, and as needed through the school year (Ex O 2); - Curriculum The [REDACTED] uses the Teachers College Reading and Writing Project’s workshop model in ELA and both Singapore Math’s Dimensions & College Preparatory Math as a curricular basis in math. Literacy methodologies include Fountas & Pinnell, Orton Gillingham, OG-based Recipe for Reading, Judith Hochman’s Writing Revolution, SRSD, and Teachers College Reading & Writing Project; - Fluid grouping and block-based programming allow for students to be accelerated across content areas in a data-driven manner without a ceiling on the level of their learning; this also allows for targeted remediation in the context of peers during class; and - Within each class of age and ability peers, targeted differentiation for both curriculum and instruction ensures an education that fits each student; (Ex O 3)

V 12/21/2021 Ten Day Notice (“TDN”) and Request for IEE

Parent Attorney notifies the DOE of:

- Parents’ intent to unilaterally place the Student in an appropriate private placement for the remainder of the 2021-2022 school year, in the continued absence of an offer to provide a FAPE from the New York City DOE; - The Parents will be seeking direct funding and/or reimbursement for this placement in the event that the DOE fails to properly cure this breach; - Parents disagree with the DOE’s most recent evaluation of the Student, and are seeking authorization for the funding/reimbursement of an IEE; - In the absence of sufficiently comprehensive and current evaluative data of the Student’s skills and needs, the Parents recently obtained an independent neuropsychological evaluation at a rate of $6,500.00. The Parents have already disclosed the evaluation report to the Student’s current School Based S[Redacted]port Team. (Ex V 1); - Parent disagrees with the DOE’s current provision of a FAPE: the DOE failed to obtain and rely on sufficient evaluative data in the development of the IEP; the DOE failed to discuss and report comprehensive, objective, and accurate data of the Student’s present levels of performances; the DOE failed to consider standard accommodations and supplements to address the Student’s needs, e.g., occupational therapy, assistive technology, executive functioning planning and assistance, etc. (Ex V 2); - The Parents are currently seeking a specialized placement appropriate to meet the Student’s unique learning needs, and are considering programs that target the needs of twice exceptional students, such as The [REDACTED]. The Parents will continue to work with the DOE; however, as the Student’s need for relief is urgent, this notice will be firm as of January 4, 2022. (Ex V 3)

P Spring 2021 Academic Progress Report

21-22 School year Report includes:

- Student supports: “will continue to benefit from executive-function support to keep information organized, such as clear instructions, checklists, planners, productive timed breaks as needed, and the use of graphic organizers across subject areas (Ex P 2); - Academic achievement (Ex P 3); - Subject material covered, progress, and supports for academics that included: o Biology: graphic organizer, varied assessment methods, small-group and 1:1 conversations with the teacher (Ex P 6); o ELA: increased his stamina writing through free-writes in which he selected a prompt and wrote continuously for [Redacted] to 15 minutes, and support from teachers as needed (Ex P 10); o French: 1:1 support (Ex P 13); o Pre-Algebra: important to validate his math work and emphasize effort, understanding, and overcoming challenges, needed reminding that everyone needs "breaks" and his diversions from work tasks were allowed and accepted as long as they were channeled into "breaks." (Ex P 17); and o Social Studies: extra time to complete assignments past their due date, self-advocacy skills to navigate and facilitate complex discussions relating to real-world issues (current and past) (Ex P 20).

Q Spring 2021 Therapeutic Progress Report

Progress and supports are detailed in areas of:

- Counseling: o Scheduled period of Foundations included: students engaged in a socialemotional curriculum, including Dialectical Behavior Therapy Skills in Schools (DBT STEPS-A), specifically designed to help adolescents manage difficult situations, develop coping strategies, and make better decisions o Student participated in class discussions, but typically only when prompted by the school psychologists, tended to need reminders to begin a task or collaborate with his peers, with adult check-ins, redirection and verbal reminders, Student was successful in engaging with the curriculum and skill building in Foundations class o Recommendation is made for the Student to continue weekly appointments with his outside provider over the summer. (Ex Q 2) - Speech Language Therapy: o Student has shown increased self-awareness surrounding his perseverations on his preferred topics o Student benefitted from check-ins with the speech-language pathologist as well as utilizing self-monitoring techniques to assess his progress and ability to utilize learned techniques in a generalized environment o Throughout the semester, there was frequent collaboration among Student’s speech-language pathologist, school psychologist, and classroom teachers to discuss progress, concerns, and ways to promote carryover of goals in/out of the classroom (Ex Q 2-3) - Occupational Therapy: o Individual “Pull Out” Occupational Therapy services were not provided to this student during this semester. Sensory and movement breaks designed by the occupational therapist were encouraged and incorporated throughout the school day by faculty to support attention and physical and emotional regulation o Self advocacy was always encouraged and students could request 1-1 time with the occupational therapist to take a focused movement or sensory break and request individualized tools (e.g., sensory fidgets, modified pencil grips, differentiated seating, or noise canceling headphones) o Supports for executive functioning challenges are implicit in the curriculum provided by the [REDACTED] and were incorporated by the faculty into the school day in a variety of ways to support the student. Students were provided access to assistive technology in the form of a laptop (Chromebook or Surface Pro) and programs/software/apps to improve academic participation and performance o Any need for additional sensory, movement, and behavioral s[Redacted]port was provided in concert with the classroom teachers and/or student’s family o Additional support was provided as needed or when requested using a collaborative model. (Ex Q 3-4)

M 12/22/2021 Enrollment Contract

Tuition is evidenced to be $[REDACTED] for the Student’s attendance, at the

[REDACTED]. (Ex M 1)

Parents are obligated to payment of the Contract via signatures. (Ex M 15)

K 10/22/2022 2021-2022 Tuition Affidavit

Student 21-22 [REDACTED] Tuition is evidenced to have been paid in full, in the amount of $[REDACTED], for attendance from 01/24/22 through 06/17/2022.

G 2021-2022 Class Schedule

Student [REDACTED] Schedule. Through

I 2021-2022 Attendance Records

Student [REDACTED] Attendance Records.

N 03/06/2022 Enrollment Contract

Tuition is evidenced to be $[REDACTED] for the Student’s attendance, at the

[REDACTED]. (Ex N 1)

Parents are obligated to payment of the Contract via signatures. (Ex N 18)

W 08/17/2022 TDN

Parent provides notification to the DOE of:

- Parent’s intent to place the Student at [REDACTED] for the 2022-2023 school year (“SY at Issue”), in the continued absence of an offer to provide a FAPE from the New York City DOE. The Parents will be seeking funding and/or reimbursements for this placement, in the event that the DOE fails to cure this breach within due time. (Ex W 1) L 10/22/2022 2022-2023 Tuition Affidavit Student 22-23 [REDACTED] Tuition is evidenced to have been paid in full, in the amount of $[REDACTED]. for period running from 09/12/2022 through 06/16/2023.

J 2022-2023 Attendance Records

Student [REDACTED] Attendance Records.

H 2022-2023 Class Schedule

Student [REDACTED] Class Schedule.

DD 02/17/2023 Petitioner’s Closing Statement and Brief

Parent reviews Student educational history, including Covid 19 impact resulting in remote learning, for the Student. (Ex DD 6)

For the 20-21 school year, Student IEP mandates were not implemented, due to the Covid 19 restrictions. (Ex DD 6)

IEP meeting took place, on 01/29/2021. (Ex B)

ICT recommendation was made, with Counseling services. (Ex B 9)

Student continued to struggle, and it is noted that all Student classes did not have a special education teacher available. (Ex DD 7)

Parent, in the summer of 2021, sought out tutoring service that specialized in executive function s[Redacted]ports. (Ex DD 7 & T 57)

Parent engaged [REDACTED], obtained services for the Student, and made payment for said services. (Ex DD 9 & Ex T, U, X & Y) [REDACTED] suggested Parent obtain another neuropsychological evaluation, which was obtained, and sent to the Student’s school. (Ex DD 11 & Ex D)

Parent provided notice of concerns, and intent to place the Student at the

[REDACTED]. (Ex DD 11 & Ex V)

Student attended the [REDACTED] for the end of the 21-22 school year, and reenrolled for the 22-23 school year; Parent contends the placement is appropriate in light of the DOE failure to offer the student a FAPE for each respective school year. (Ex DD 11-13)

Parent argues the appropriateness of the [REDACTED] for the 21-22 and 22-23 is clearly evidenced. (Ex DD 15-22) and that equities favor the Parent (Ex DD 23)

FINDING OF FACTS AND DECISION

Purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A][B]; see generally Forest Grove v. T.A., 129 S. Ct. 2484, )2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).

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 (Rowley, 458 U.S. at 206-07; 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]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), 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., 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 (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 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. S[Redacted]p. 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 (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient s[Redacted]port services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA 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 statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132 [quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989)] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (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'" (Cerra, 427 F.3d at 195 [quoting Walczak, 142 F.3d at F.3d at 132; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. S[Redacted]p. 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. S[Redacted]p. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583

F. S[Redacted]p. 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 CFR 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] [noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student]), 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 CFR 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 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see also Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

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" (Endrew F., 137 S. Ct. at 1000).

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations s[Redacted]port the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85). A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129). A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (Carter, 510 U.S. at 13-14). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ. of the City Sch. Dist. of Yonkers, 231 F.3d 96, 104 [2d Cir. 2000]). "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement'" (Gagliardo, 489 F.3d at 112, quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 [2d Cir. 2006]; see Rowley, 458 U.S. at 207). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). When determining whether a unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether the placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115; Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] ["evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]). A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; Educ. Law § 4401[1]; 34 CFR 300.39[a][1]; 8 NYCRR 200.1[ww]; Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836 [2d Cir. 2014]; Gagliardo, 489 F.3d at 114-15; Frank G., 459 F.3d at 365).

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement. No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, s[Redacted]ported by such services as are necessary to permit the child to benefit from instruction. Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).

The final criterion for a reimbursement award is that the parents' claim must be s[Redacted]ported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]; L.K. v. New York City Dep't of Educ., 674 Fed. App'x 100, 101 [2d Cir. Jan. 19, 2017]). With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or [Redacted]on a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; 34 CFR 300.148[d]; E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014] [identifying factors relevant to equitable considerations, including whether the withdrawal of the student from public school was justified, whether the parent provided adequate notice, whether the amount of the private school tuition was reasonable, possible scholarships or other financial aid from the private school, and any fraud or collusion on the part of the parent or private school]; C.L., 744 F.3d at 840 [noting that "[i]mportant to the equitable consideration is whether the parents obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA"]).

Reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to their removal of the student from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense" (20 U.S.C. § 1412[a][10][C][iii][I]; see 34 CFR 300.148[d][1]). This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools" (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]). Although a reduction in reimbursement is discretionary, courts have [Redacted]held the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision (Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); see Frank G., 459 F.3d at 376; Voluntown, 226 F.3d at 68).

DOE offer of FAPE for the 21-22 & 22-23 School Years The DOE has evidenced development of an appropriate IEP for neither the 20-21 nor 22-23 school years.

DOE offered no evidence that the Parent in any way frustrated any attempt of the DOE to offer a FAPE for the 21-22 or 22-23 school years.

I find the DOE failed to offer the Student a FAPE for the 21-22 and 22-23 school years.

The credibility of the documentary and testamentary evidence was not controverted by the DOE and the evidence is relevant and material to the issues to be determined. I find that the documentary evidence on behalf of the Parent credible and persuasive in favor of the Parent.

Evidence sets forth areas of Student special education need, services to address those needs, and notes progress. (T 35-39, 40-41, Ex D, G, O, P, & Q) [REDACTED] provides special education services specifically tailored to meet the needs of the Student.

I find [REDACTED] provides an appropriate education and program for the Student for the 21-22 school year.

TUITION FUNDING 21-22 School Year

The DOE has denied a FAPE to the Student for the 21-22 school year.

Parent provided appropriate TDN. (Ex V)

Tuition is evidenced to be $[REDACTED] for the Student’s attendance, at the

[REDACTED]. (Ex M 1 & I)

Parents are obligated to payment of the Contract via signatures. (Ex M 15)

Student 21-22 [REDACTED] Tuition is evidenced to have been paid in full, in the amount of $[REDACTED], for attendance from 01/24/22 through 06/17/2022.

I find Parent in no way frustrated any attempt of the DOE to offer the Student a FAPE and is entitled to direct DOE funding of the [REDACTED] tuition, for the 21-22 school year.

I find the Parent is entitled to reimbursement of Student 21-22, [REDACTED] Tuition, as

Ordered below.

[REDACTED] Placement for the 22-23 School Year

Testimony and documentary evidence, as reviewed above, s[Redacted]port [REDACTED] as an appropriate Student placement for the 22-23 school year.

Evidence sets forth areas of Student special education need, services to address those needs, and notes progress. (T 44-49, 61-62, Ex D, H, O, & P) [REDACTED] provides special education services specifically tailored to meet the needs of the Student.

I find [REDACTED] provides an appropriate education and program for the Student for the 22-23 school year.

TUITION FUNDING 22-23 School Year

The DOE has denied a FAPE to the Student for the 22-23 school year.

Parent provided appropriate TDN. (Ex W)

Tuition is evidenced to be $[REDACTED] for the Student’s attendance, at the

[REDACTED]. (Ex N 1 & J)

Parents are obligated to payment of the Contract via signatures. (Ex N 18)

Student 22-23 [REDACTED] Tuition is evidenced to have been paid in full, in the amount of $[REDACTED]. for period running from 09/12/2022 through 06/16/2023. (Ex L)

I find Parent in no way frustrated any attempt of the DOE to offer the Student a FAPE and is entitled to direct DOE funding of the [REDACTED] tuition, for the 22-23 school year.

I find the Parent is entitled to reimbursement of Student 22-23, [REDACTED] Tuition, as

Ordered below.

TUTORING SERVICES

Parent engaged and paid for tutoring services, from [REDACTED]. (Ex T, U & Y) [REDACTED] provides one-on-one, small and large group mentoring and coaching in Executive Function skill acquisition. “We offer EF Intensives for students, with sessions available during the day, in the evenings, and on weekends either in students’ homes or at one of our Manhattan locations. Remote sessions, facilitated by digital mentoring technologies such as Zoom, FaceTime and Skype, are also possible.” (Ex Z 1)

Evidence shows Parent paid [REDACTED] for services. (Ex T & U)

Parent argues that the services should be funded, by the DOE, as a compensatory award, with the aim of placing the student in the position he or she would have been in “but for the violation of” the IDEA. Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 (11th Cir. 2008). The award must provide what the student “needs to elevate him to the position he would have occupied absent the school district’s failures.” Reid, 401 F.3d at 524. See also Parents of Student

W. v. Puyall[Redacted] Sch. Dist., 31 F.3d 1489, 1497 (9th Cir. 1994) (Ex DD 26) Parent argues that the Record: “includes reliable and objective evaluative data identifying the Student’s executive functioning deficits and recommending specific s[Redacted]ports to meet his related needs. Prior to initiating services with ECFNY, the Parents had the 2018 Neuropsychological Evaluation to rely on for guidance on appropriate services, and that report states: “[Student] may find it useful to work with an executive functioning coach. Within these sessions, focus on skills useful for increasing planning and organization can be introduced. Aiding him in initiation and completion of homework assignments, along with organizing materials, utilizing a calendar for time management strategies, and prioritizing assignments could also be folded into these tutoring sessions.” Ex. C at 13. To further show that their choice of service was appropriate, the 2021 Neuropsychological Evaluation states that the Student required assistance with completing assignments and explicit instruction for developing executive functioning skills. See Ex. D at 17-18.” (Ex DD 27)

Parent did raise executive function concerns, at the IEP meeting, of January 2021, via the recent evaluation. (Ex B, Ex DD 27-28)

The Parent argues there is evidence of the actual services received by the Student. However, the general characteristics of the [REDACTED] services lack specifics for the Student considered in this case. (Ex DD 28)

There is no dispute that the Student is entitled to special education services, and needs are presented in the evidence. (Ex D)

Parent is reasonable in his process to engage the [REDACTED] services, believing in them to s[Redacted]port the Student’s executive function needs. (T 58)

Evidence is not presented to show any specific special education services were provided to meet the Student’s unique needs. Student is identified to have executive function needs (Ex D), and IEP includes some information and s[Redacted]ports to address those needs. (Ex B 4 & 9)

Regarding [REDACTED], the evidence does not include any specific goal(s), degree of delay, progress, assessment, materials, or s[Redacted]ports, for the Student.

Parent Testified that Tutors worked on areas, and included: a mindfulness coach; sequencing; executive functioning; and writing. (T 57-58) How this was attempted, or completed, is not evidenced.

Parent sates that: “…we were getting the indications from his schoolteachers that he had specialized needs in these areas (T 59); and Student’s teachers were aware of the tutoring and collaborating with the tutors. (T 60)

Considering the cost and level of collaboration, outlined by the Parent, it is startling that no actual document is produced to detail the specific Student services and s[Redacted]ports.

Additionally, no evidence is presented as to any loss or impact [Redacted]on the Student’s education which necessitated the implemented services.

No evidence is presented to show what specific service was delivered and how it resulted in a benefit to the Student. [REDACTED] documents include: “This aspect of our work often includes the active embedding of EF scaffolding in academic subject mentoring, thereby allowing students to strengthen underlying academic skill deficits while developing the EFs necessary for facilitating long term success in those subjects.” (Ex Y 1) [REDACTED] does not identify any particular delayed skill level of the Student, fails to present any assessment related to the Student, and fails to evidence any progress related to its services.

The DOE is correct in arguing that: “The parent has not shown that the services offered to the student by [REDACTED] were individualized to meet the student’s specific learning needs.”

(IHO Ex II 2)

The DOE also argues correctly that there is a lack of evidence: “that the student required these specific services in order to make academic progress. Nor has the parent articulated through evidence and testimony just how these service made [Redacted] for an alleged denial of FAPE.”

(IHO Ex II 11)

Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case (Wenger v. Canastota, 979 F. S[Redacted]p. 147 [N.D.N.Y. 1997]). In New York State, a student who is otherwise eligible as a student with a disability, may continue to obtain services under the IDEA until he or she receives either a local or Regents high school diploma (34 CFR 300.102[a][3][i]; 8 NYCRR 100.5[b][7][iii]; Application of the Bd. of Educ., Appeal No. 05-084; Application of the Bd. of Educ., Appeal No. 05-037), or until the conclusion of the ten-month school year in which he or she turns age 21 (Educ. Law §§ 3202[1], 4401[1], 4402[5][b]; 8 NYCRR 100.9[e], 200.1[zz]; see 34 CFR 300.102[a][1], [a][3][ii]; Application of a Child with a Disability, Appeal No. 04-100).

The nature and extent of compensatory education services that courts have recognized varies according to the facts and circumstances of a given case; however, as a remedy that arises out of the equitable jurisdiction of 20 U.S.C. §1415, courts will craft compensatory education relief that “should aim to place disabled children in the same position they would have occ[Redacted]ied but for the school district's violations of IDEA.” Reid, 401 F.3d, at 516; Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 (11th Cir. 2008)(same); see, e.g., G. ex rel. RG v. Fort Bragg Dependent Sch., 343 F.3d 295 (4th Cir. 2003) (“Compensatory education involves discretionary, prospective, injunctive relief crafted by a court to remedy what might be termed an educational deficit created by an educational agency's failure over a given period of time to provide a FAPE to a student.”); see also Parents of Student W. v. Puyall[Redacted] Sch. Dist., 31 F.3d 1489, 1497 (9th Cir. 1994)(Noting that “it may be a rare case when compensatory education is not appropriate” to remedy an IDEA violation.).

In determining a compensatory award, most courts seek to ascertain the child’s needs at the time the relief is sought.10 Reid, 401 F.3d 516; see, e.g., Streck, 2010 WL 4847481, at *2 (Court awarded compensatory education relief that required the school district to “open and maintain for 3 years, an escrow account,” which will be used to pay for student’s reading instruction at Landmark College and assistive technology s[Redacted]ports.); Woods v. Northport Pub. Sch., 487 Fed. Appx. 968, 2012 WL 2612776, at *978-79 (6th Cir. July 5, 2012) ([Redacted]holding IHO award of 768 hours of compensatory tutoring as “reasonable recover” for a lengthy denial of FAPE; given the student’s age, the “window of opportunity to become usefully literate ha[d] begun to close.”).

If Student is found to be entitled to compensatory education under applicable law; compensatory education is an equitable remedy that arises out of the jurisdiction of 20 U.S.C. § 1415; equitable factors do not bar relief here and no inequitable conduct was established on the part of the parents. N.R. ex rel. T.R. v. Dep’t of Educ. of City Sch. Dist. of City, No. 07 Cv. 9648 (BSJ), 2009 WL 874061 (S.D.N.Y. Mar. 31, 2009) (Reversing the SRO and [Redacted]holding the award; Court found that it is well established that, in the absence of evidence demonstrating that the parents failed to cooperate with the CSE, or otherwise engaged in conduct that precluded the development of an appropriate IEP, equitable considerations generally s[Redacted]port a claim for tuition.); Wolfe v. Taconic Hills Cent. Sch. Dist., 167 21 F.S[Redacted]p.2d 530 (N.D.N.Y. 2001)( the equities—requires a balancing of both parties’ conduct and interest—not merely the actions of the parent).

I find evidence does not support an award of compensatory services, nor funding for services received by the Student via [REDACTED].

This form of relief is denied.

INDEPENDENT EDUCATIONAL EVALUATIONS

The IDEA provides parents with a number of procedural safeguards. Among them is the "right . . . to obtain an independent educational evaluation of the child," which in turn means "an evaluation conducted by a qualified examiner who is not employed by the public agency responsible for the education of the child in question" (34 CFR 300.502[a][1], [3][i]).

Parents who express a disagreement with an evaluation conducted by the district also have the right to seek an IEE conducted at public expense in some circumstances (34 CFR 300.502[b]; 8 NYCRR 200.5[g][1]; see K.B. v. Pearl River Union Free Sch. Dist., 2012 WL 234392, at *5 [S.D.N.Y. Jan. 13, 2012] [noting that "a prerequisite for an IEE is a disagreement with a specific evaluation conducted by the district"]; see also Lauren W. v. DeFlaminis, 480 F.3d 259, 275 [3d Cir. 2007] [explaining that parents do not have the right to an IEE at public expense where parents actually agreed with the school's evaluation]; Edie F. v. River Falls Sch. Dist., 243 F.3d 329, 335 [7th Cir. 2001] [explaining that parents do not have the right to an IEE at public expense where their disagreement was with the result of the child's IEP not with a particular diagnosis or methodology of evaluation]; M.C. v. Katonah/Lewisboro Union Free Sch. Dist., 2012 WL 834350, at *11–12 [S.D.N.Y. Mar. 5, 2012]; M.V. v. Shenendehowa Cent. Sch. Dist., 2013 WL 936438, at *6 [N.D.N.Y. Mar. 8, 2013]; R.L. v. Plainville Bd. of Educ., 363 F. S[Redacted]p. 2d. 222, 234-35 [D. Conn. 2005] [finding parental failure to disagree with an evaluation obtained by a public agency defeated a parent's claim for an IEE at public expense that was sought for additional information]). "If the parent obtains an independent educational evaluation at public expense or shares with the public agency an evaluation obtained at private expense, the results of the evaluation [m]ust be considered by the public agency, if it meets agency criteria, in any decision made with respect to the provision of FAPE to the child" (34 CFR 300.502[c])

If a parent requests an IEE at public expense, the school district must, without unnecessary delay, either (1) ensure that an IEE is provided at public expense; or (2) initiate an impartial hearing to establish that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria (34 CFR 300.502[b][2][i]-[ii]; 8 NYCRR 200.5[g][1][iv]). If a school district's evaluation is determined to be appropriate by an IHO, the parent may still obtain an IEE, although the district will not be required to provide it at public expense (34 CFR 300.502[b][3]; 8 NYCRR 200.5[g][1][v]; see A.H. v. Colonial Sch. Dist., 2019 WL 3021232, at *3 [3d Cir. July 10, 2019]). Additionally, both federal and State regulations provide that "[a] parent is entitled to only one [IEE] at public expense each time the public agency conducts an evaluation with which the parent disagrees" (34 CFR 300.502[b][5]; 8 NYCRR 200.5[g][1]). The time period for asserting claims based [Redacted]on a disagreement with a school district's evaluation can be shorter than the mandatory three-year reevaluation period in some cases (see D.S., 357 F. S[Redacted]p. 3d at 179).

An IEE must use the same criteria as the public agency's criteria (Seth B. v. Orleans Par. Sch. Bd., 810 F.3d 961, 973–79 [5th Cir. 2016]). Informal guidance from the United States Department of Education's Office of Special Education Programs (OSEP) indicates that if a parent disagrees with an evaluation because a child was not assessed in a particular area, the parent has the right to request an IEE to assess the child in that area (Letter to Baus, 65 IDELR 81 [OSEP 2015]), however recent caselaw clarifies that parents may not demand a comprehensive IEE at public expense while at the same time refusing to consent to the school district's offer to conduct the same assessments (D.S. v. Trumbull Bd. of Educ., 357 F. S[Redacted]p. 3d 166, 178 [D. Conn. 2019], citing N.D.S. v. Acad. for Sci. & Agric. Charter Sch., 2018 WL 6201725, at *5–*7 [D. Minn. 2018] [explaining that where parents request an IEE to challenge an obsolete evaluation, they are entitled to a due process hearing limited only to whether the evaluation was appropriate at the time it was completed; if parents wish for a publicly funded IEE with respect to their child's current condition, then they must allow the school district to conduct a current reevaluation and then request an IEE if they disagree]).

Additionally, an IHO is vested with the authority to direct that a student be evaluated at district expense (34 CFR 300.502[d]; 8 NYCRR 200.5[g][2]; [j][3][viii]). IHOs are "granted broad authority in their handling of the hearing process and to determine the type of relief which is appropriate considering the equitable factors present and those which will effectuate the purposes underlying IDEA" (Warren Consolidated Schs., 106 LRP 70659 [LEA MI 2000]).

A 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 (34 CFR 300.303[a][2]; 8 NYCRR 200.4[b][4]); however, a district need not conduct a reevaluation more frequently than once per year unless the parent and the district otherwise agree and at least once every three years unless the district and the parent agree in writing that such a reevaluation is unnecessary (8 NYCRR 200.4[b][4]; see 34 CFR 300.303[b][1]-[2]). 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 (8 NYCRR 200.4[b][3]).

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 (34 CFR 300.304[c][6]; 8 NYCRR 200.4[b][6][ix]; see Application of the Dep't of Educ., Appeal No. 07-018).

Under 200.5 (g) of the New York regulations and 34 CFR § 300.502 (b) (1) of the federal regulations, if a Parent disagrees with a district’s evaluation or re-evaluation of her child, she has the right to request an IEE at public expense. [Redacted]on Parent IEE request the public agency must, without unnecessary delay, either: (i) File a due process complaint to request a hearing to show that its evaluation is appropriate; or (ii) Ensure that an independent educational evaluation is provided at public expense, unless the agency demonstrates in a hearing pursuant to §§ 300.507 through 300.513 that the evaluation obtained by the parent did not meet agency criteria. 34 CFR 300.502(b)(2). 8 NYCRR § 200.5 (g)

It is noted that a parent’s DPC may serve as a demand for an IEE. A Parent may file a DPC notice with respect to "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" (8 NYCRR 200.5[i][1]; see 20 U.S.C. § 1415[b][6]-[7]; 34 CFR 300.503[a][1]-[2], 300.507[a][1]). A sought after IEE may be a proper remedy for disagreement with a District's evaluation. Absent any requirement that the parent express her disagreement with the results of a district evaluation in a specific format, there is no reason why a DPC may not serve the function of expressing the parent's disagreement to the district.

Additionally, the DPC may serve as a basis for an IEE request when the District has failed to evaluate the Student in an area of suspected disability. The District, through a written response, or Resolution Process, can respond with whatever mechanism it has available to dispute the Parent request, or consent to an evaluation of some sort.

When a parent initiates a request for an impartial hearing by filing a DPC notice the IDEA provides for a resolution process that must be followed before a parentally requested hearing can proceed (34 CFR 300.510[a]). The parent cannot unilaterally waive the resolution meeting because the regulation requires both parties to waive a resolution meeting (34 CFR 300.510[a][3]). Accordingly, the District would have [Redacted] to 30 days to consider and resolve any DPC, including any request for an IEE, before being required to proceed to an impartial hearing to defend its own evaluation, or IEP process which has been undertaken, for a student (see 34 CFR 300.510[b]). During that period, the District could agree to a parent's request for an IEE or seek further information from the parent.

In this case the Parent initiated the process for a Student Neuropsychological Evaluation, back in October of 2021 (Ex D 1)

Evaluation Report was completed, on 11/05/2021. (Ex D)

After the Report was completed, Parent Attorney communicated, to the DOE:

“In the absence of sufficiently comprehensive and current evaluative data of the Student’s skills and needs, the Parents recently obtained an independent neuropsychological evaluation at a rate of $[REDACTED]. The Parents have already disclosed the evaluation report to the Student’s current School Based S[Redacted]port Team.” (Ex V 1)

Parent now seeks DOE funding of the Evaluation obtained. (Ex D)

Parent testified that a decision was made to obtain a private neuropsychological evaluation of the Student, in 2021: “We were increasingly frustrated because we were getting feedback from the teachers of him not being able to address the work assigned to him and were giving us indicators that he had specialized challenges, and we just needed to get more data and information, because what was happening at the time wasn't working, and it seemed like he was having an increasingly more difficult time at school.” (T 54-55)

Parent does not raise any objection to a specific DOE evaluation.

Parent acted unilaterally to obtain additional information to identify and address the Student’s needs. Evaluation was obtained at a cost of $[REDACTED], which Parents paid, and Parent Attorney provided notice to the DOE that reimbursement was sought for the private evaluation. (T 55, Ex V)

Parent failed to provide appropriate objection to a DOE evaluation, prior to obtaining their own IEE.

Parent has not evidenced objection to a DOE evaluation and allowed the DOE time to respond.

Parent acted appropriately, in light of their concerns for the Student, but this does not obligate the DOE to fund the IEE.

This form of relief is denied.

ORDER

1. The Department of Education (DOE) failed to offer the Student a FAPE for the 21-22 and 22-23 school years.

2. Relief of funding for Compensatory Education services, specifically tutoring services, delivered via [REDACTED], is denied.

3. Relief in the form of funding for Independent Educational Evaluation (Neuropsychological Evaluation of 11/05/2021), is denied.

4. The DOE shall reimburse Parent, Student Tuition, for attendance, at the [REDACTED] ([REDACTED]), as detailed below:

- 21-22 School Year: The amount of $[REDACTED], and; - 22-23 School Year: [Redacted] to $[REDACTED].

5. The DOE shall provide Parent with any documents or forms necessary to facilitate payment under this Order, within ten days of the date of this Order.

6. This decision is subject to appeal and review by the State Review Officer.

DATED: February 22, 2023

DANIEL AJELLO

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 [Redacted]on 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 [Redacted]on 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.

Footnotes

[130] [citations omitted]); see 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" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 [REDACTED] Placement for the 21-22 School Year Testimony and documentary evidence, as reviewed above, support [REDACTED] as an appropriate Student placement for the 21-22 school year.

New York City Department of Education, Impartial Hearing Decision