NY IHO #241184: 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: 590212 – NYC: 241184

FINDINGS OF FACT AND DECISION

Student's Name: [REDACTED]

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Requested By: Parent

Date of Hearing: 01/09/2023 Pre-Hearing Conference

01/19/2023 Pendency Hearing

01/27/2023

01/31/2023

02/06/2013

Actual Record Close Date: 03/07/2023

Decision Date: 03/10/2023

Hearing Officer: Daniel Ajello Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON 01/09/2023

(All Parties Appeared Via Teleconference)

For the Student:

[REDACTED], Law Clerk

[REDACTED], ESQ., Attorney, Observing

[REDACTED], Law Clerk, Observing

For the Department of Education:

[REDACTED], ESQ., Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED ON 01/19/2023

(All Parties Appeared Via Teleconference)

For the Student:

[REDACTED], Law Clerk

[REDACTED], ESQ., Attorney

For the Department of Education:

[REDACTED], ESQ., Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED ON 01/27/2023

(All Parties Appeared Via Teleconference)

For the Student:

[REDACTED], Law Clerk

[REDACTED], ESQ., Attorney

For the Department of Education:

[REDACTED], ESQ., Attorney

[REDACTED], Assistant Principal

[REDACTED], School Psychologist

NAMES AND TITLES OF PERSONS WHO APPEARED ON 01/31/2023

(All Parties Appeared Via Teleconference)

For the Student:

[REDACTED], Law Clerk

[REDACTED], ESQ., Attorney

[REDACTED], Parent Student

[REDACTED], Director of Special Education

[REDACTED] [REDACTED], Paralegal

[REDACTED] Group

For the Department of Education:

[REDACTED], ESQ., Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED ON 02/06/2023

(All Parties Appeared Via Teleconference)

For the Student:

[REDACTED], Law Clerk

[REDACTED], ESQ., Attorney

[REDACTED], Paralegal

[REDACTED] Group

[REDACTED], Parent Student

[REDACTED], [REDACTED] Interpreter

For the Department of Education:

[REDACTED], ESQ., Attorney

DOCUMENTATION ENTERED INTO THE RECORD PARENT

PARENT EXHIBIT DATE DESCRIPTION PAGE(S)

A. Due Process Complaint – Entered 01/09/2023 (DPC) B 09/22/2022 Entered 01/19/2023 IH# 209151 C 12/08/2022 State Review Officer (SRO) Decision No. 14 Entered 01/19/2023 22-139 10/27/2022 8 pages

D 03/06/2022 [REDACTED]

Entered 01/27/2023 Individualized Education Program (IEP) 62 D 13 03/06/2022 Clear Copy Page D 13 1 Entered 02/06/2023 E 03/07/2022 New York City (NYC) Entered 01/27/2023 Department of Education (DOE) IEP 58 F Prior Written Notice

06/22/2022 3 Entered 01/27/2023 G Transportation Agreement

07/19/2022 5 Entered 01/27/2023 H [REDACTED] Enrollment Contract

08/16/2022 13 Entered 01/27/2023 I Ten Day Notice (TDN)

08/23/2022 2 Entered 01/27/2023 J Determination Letter

09/06/2022 1 Entered 01/27/2023 K [REDACTED] Schedule 2022-2023 1 Entered 01/27/2023 L Affidavit of [REDACTED] (English 01/26/2023 3 Entered 01/27/2023 Version)

M Affidavit of [REDACTED]

01/26/2023 3 Entered 01/27/2023 ([REDACTED] Version)

N Affidavit of [REDACTED]

01/26/2023 5 Entered 01/27/2023 Sworn to 01/31/2023

O Excluded Not Relevant 1

DEPARTMENT OF EDUCATION (DOE)

Entered 01/27/2023 Ex Description Date Page(s) 1 Excluded Duplicate 2 IEP 03/07/22 59 3 Prior Written Notice and School Location Letter 06/22/22 12 4 Prior Written Notice (Notice of Recommendation)

– Assistive Technology Evaluation 06/21/22 2 5 Prior Written Notice (Notice of Recommendation)

– Functional Vision Assessment 06/07/22 2 6 Prior Written Notice (Additional Reevaluation) and Consent Form 06/01/22 12 7 Email Chain (Parent and District) 06/09/22 2 8 Psychoeducational Evaluation 02/15/22 6 9 Level 1 Vocational Assessment - Parent/Guardian 02/18/22 2 10 Social History Update 02/16/22 3 11 Classroom Observation 02/17/22 2 12 Quarterly Progress Report ([REDACTED]) 04/15/21 25 13 Quarterly Progress Report ([REDACTED]) 09/30/21 25 14 Notice of Meeting 03/08/22 5 15 Notice of Meeting 02/07/22 5 16 Ten Day Notice 07/19/22 4 17 Ten Day Notice 08/23/22 4 18 [REDACTED] Draft IEP 03/23/22 68 19 Affidavit of [REDACTED], School Psychologist 01/19/23 7

IMPARTIAL HEARING OFFICER

Entered 01/09/2023 I Notice of Appointment, 12/23/2022, 4 pages

II Notice of appearance from [REDACTED], 1/5/23, one page

III Notice of appearance from [REDACTED], 1/6/23, one page

IV Notice of appearance from [REDACTED], 1/6/23, one page Entered 01/27/2023 V Pendency Order, 01/19/2023, seven pages Entered 02/28/2023 VI DOE Closing Brief, 02/28/2023, 19 pages

VII Parent Closing Brief, 02/28/2023, 21 pages

INTRODUCTION

On 12/23/2022, 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.

Pre-Hearing Conference was held on 01/09/2023, and Pendency Hearing set for 01/19/2023.

Pendency was established based upon the Findings of Fact and Decision (FOFD), for the 21-22 school year. (Ex B 14-15)

Pendency Order included:

- Parent Reimbursement of Tuition, Special Transportation, and Related Service Costs, at the Private School, [REDACTED] ([REDACTED]). (IHO Ex V 6) Hearing continued, on 01/27/2023, 01/31/2023, and concluded, on 02/06/2023. Appended to the record are lists of persons in attendance and the documents received in evidence. It is noted that the Transcript, for 01/27/2023, at line 25, incorrectly identifies the Speaker as the IHO, when it is actually the Witness, [REDACTED]. (T 54) Due Process Complaint (DPC) alleges a failure of the DOE to provide an appropriate IEP and placement for the 2022/2023 school year. (Ex A 1)

The DPC includes the Student’s educational history, detailing Student challenges and special education services provided, via the Unilateral Placement, [REDACTED] (UP). This includes an FOFD, finding the UP served as an appropriate Student placement, and awarding Parent tuition reimbursement, for the 21-22 school year. (Ex B, Ex A 2-4) Allegations, relating to the 22-23 school year include: - “Parent visited DOE’s proposed placement for the 2022-2023 school year, [REDACTED], The [REDACTED] School (“[REDACTED]”) in October 2022. Although [Student’s] IEP indicated that DOE’s recommendation was for a 12:1:4 class, Parent was told that [Student] would be placed in a 6:1:1 class. Parent learned that the school day was not long enough to accommodate all of [Student’s] related services mandates as well as provide for his needs during the school day. Parent also learned that many of the OT and PT sessions take place in the hallway, where there is no air conditioning. Parent did not believe that [REDACTED] would be capable of meeting [Student’s] needs and determined to keep [Student] enrolled at

[REDACTED].” (Ex A 4)

- The DOE IEP and recommended placement are inappropriate due to:

o lacking appropriate Related Services (Vision Education Services and Music Therapy) (Ex A 4); o failing to recommend an appropriate school location (Ex A 4-5); o failure to evaluate the Student in all areas of suspected disability (Ex A 5-6); and o and the 22-23 IEP outcome was predetermined. (Ex A 6)

Parent seeks a variety of forms of relief to remedy the alleged failure, including: a. An Order declaring that DOE denied [Student] a FAPE during the 2022-2023 extended school year;

b. A determination that UP is an appropriate placement for the student;

c. An Order directing DOE to fund payment by the School District directly to UP for the cost of Full Tuition for the 2022-2023 extended school year which includes related services, and includes a 1:1 paraprofessional and nurse;

d. An Order directing the DOE to provide all AT and AAC devices and supports as needed;

e. An Order directing DOE to fund an independent neuropsychological evaluation at public expense;

f. Reimbursement and/or prospective funding of special education transportation with limited time travel and a transportation paraprofessional, nurse or porter services as required; and

g. Request a new IEP meeting to address changes, if necessary. (Ex A 7)

THE POSITION OF EACH PARTY

The DOE sought to defend the relevant IEP and placement, for the 22-23 school year.

The DOE presented evidence and Testimony, as considered below: [REDACTED], Assistant Principal

Witness provided Testimony that included:

- Qualifications, experience and role at the DOE (T 49-51); - Witness testified that the school placement could implement the Student’s IEP (T 52); - Student’s Parent visited the school placement prior to the start of the 22-23 school year (T 52); - School day starts at 8:00 am and ends at 2:50 pm (T 55); - There are six hours of instructional periods each day (T 55); - The school placement does not offer an extended school day (T 55); - The school has an occupational therapy and physical therapy rooms (T 56); and - Therapists create their respective therapy schedules for students. (T 56)

[REDACTED], School Psychologist

Witness provided Testimony that included:

- Swearing to Affidavit (Ex N, T 76); - Having neither met nor observed the Student (T 77); - Witness believers a 1:1 paraprofessional was recommended (T 83);;;;; - DOE IEP recommends a group para, which Witness believers might be a clerical error, and if necessary the document can be revised (T 83-84); - Student would not be appropriately placed in a classroom with a group para (T 85); and - To her knowledge, the issue relating to the group para error has not been raised. (T 90) Despite the Witness observation regarding the inappropriate paraprofessional, and contention that a change could be made, if necessary, no such change has been made.

2 IEP 03/07/22

IEP includes:

- Disability Classification of Traumatic Brain Injury (Ex 2-1); - Notes important Student information and support at current placement, as reflected in Psychoeducational Evaluation: [REDACTED] young man in the [REDACTED] grade at the ([REDACTED]); currently has the support of a 1:1 paraprofessional throughout the school day; diagnosed with quadriplegic cerebral palsy, muscle hypertonia, developmental delay, [REDACTED], dystonia, [REDACTED], impaired mobility, microcephaly and intellectual disability (Ex 2-2); - Details Student challenges, diagnoses, academic needs, communication need, medical needs, feeding needs, toileting needs, technology needs, related services needs (Speech/Occupational/Physical), and ADL needs (Ex 2-1 through 2-34); - Student is noted to require assistive technology devices (Ex 2-35); - Recommendation is made, which includes: Special Class 12:1+(3:1); physical therapy; speech-language therapy; occupational therapy; parent counseling and training; health paraprofessional for safety, ambulation and feeding (Group service); assistive technology devices (Ex 2-50 & 2-51); - School nurse is referred to “paraprofessional will consistently consult with the school nurse regarding close monitoring of [Student’s] medical needs and will ensure [Student’s] toileting, feeding, and ambulation needs are addressed.” (Ex 2-47); - Student is recommended to a 12-month school year (Ex 2-51 & 2-52); - Mother raised concerns regarding the IEP contents, including lack of Hearing and Vision Services, and a need for an air-conditioned bus, which resulted in a discussion regarding the process to request evaluations for additional services and transportation accommodations. (Ex 2-57 & 2-58)

The IEP includes that the Student is blind, but not in need of instruction in the use of Braille. (Ex 2-35)

The IEP includes that the Student is one who is deaf or hard of hearing, but not in need of any particular device or service to communicate. (Ex 2-35) Special Transportation supports include: o Transportation from the closest safe curb location to school o Adult Supervision o 1:1 Paraprofessional o Vehicle and/or Equipment Needs – Lift Bus Vehicle o Equipment Needs – Student uses wheelchair (Regular Size) (Ex 2-55)

3 Prior Written Notice and School Location Letter 06/22/22

Confirms Student IEP recommendations, and Parent concerns.

4 Prior Written Notice (Notice of Recommendation) – Assistive Technology Evaluation 06/21/22

DOE letter advises an evaluation will not be conducted due to missing form requested from the Parent.

5 Prior Written Notice (Notice of Recommendation) – Functional Vision Assessment 06/07/22

DOE letter advises an evaluation will not be conducted due to missing information requested from the Parent.

6 Prior Written Notice (Additional Reevaluation) and Consent Form 06/01/22

Additional forms related to potential Student evaluation, after the development of the IEP. (Ex 2)

7 Email Chain (Parent and District) 06/09/22

Emails relating to evaluations and forms relating to potential Student evaluations. 8 Psychoeducational Evaluation 02/15/22

Evaluation confirms the Student’s multiple areas of need and diagnoses, utilized as a document to develop the IEP. (Ex B)

Diagnoses, and needs include: quadriplegic cerebral palsy, muscle hypertonia, developmental delay, [REDACTED], dystonia, [REDACTED], impaired mobility, microcephaly, intellectual disability, non-verbal and non-ambulatory. (Ex 8-1)

No recommendations are made.

10 Social History Update 02/16/22

Confirms Student history of requiring special education services and supports.

11 Classroom Observation 02/17/22

Confirms Student need for special education services, noting: Student is “a nineteen-year-old male with diagnoses of Spastic Quadriplegia, Cerebral Palsy, Intellectual Disability, Asthma, and Hypotonia…non-verbal and non-ambulatory…dependent on assistance with all activities of daily living…uses a manual wheelchair and bilateral ankle/foot orthotics…attending staff member was present for the duration of the observation and provided background information, as well as visual and verbal cues…[Student] is able to actively engage with his environment and scan the environment for familiar faces as well as toys he enjoys playing with…” (Ex 11-1)

Observation concludes: Student “is non-verbal, however, makes vocalizations when he is happy and excited, and facial expressions including smiling, putting his hand in his mouth, making eye contact, eye gazing, and turning his head, as well as facial grimacing and moving his body away from a stimulus that may cause discomfort or pain.” (Ex 11-2)

12 Quarterly Progress Report ([REDACTED]) 04/15/21

UP report details Student goals and progress in areas that include: Academics (Ex 12-1 to 12-5); Assistive Technologies (Ex 12-6 to 12-7); Music Therapy (Ex 12-8 to 12-10); Occupational Therapy (Ex 12-11 to 12-15); Physical Therapy (Ex 12-16 to 12-18); Speech Language Therapy (Ex 12-19 to 12-22); and Vision (Ex 12-23 to 12-25)

13 Quarterly Progress Report ([REDACTED]) 09/30/21

UP report details Student goals and progress in areas that include: Academics (Ex 12-1 to 12-5); Assistive Technologies (Ex 13-6 to 13-7); Music Therapy (Ex 13-8 to 13-10); Occupational Therapy (Ex 13-11 to 13-15); Physical Therapy (Ex 13-16 to 13-18); Speech Language Therapy (Ex 13-19 to 13-22); and Vision (Ex 13-23 to 13-25)

16 Ten Day Notice 07/19/22

Parent notifies the DOE that a School Location Letter has not been received; there is objection to the recent IEP recommendations; Parent will continue UP; and Parent intends to seek DOE funding for Student attendance, at the UP.

This letter was sent from the prior Parent Attorney, not the Attorney bringing forth the current case.

17 Ten Day Notice 08/23/22

Parent reiterates concerns in prior letter; a school recommended placement had been received; communication with the recommended placement was attempted but not successful; and Parent intents to keep Student at the UP, and seek DOE funding.

18 [REDACTED] Draft IEP 03/23/22

IEP is a duplicate of Parent Exhibit D, which is updated, 03/23/2022, after the IEP meeting, of 03/07/2022. (Ex 2)

19 Affidavit of [REDACTED], School Psychologist 01/19/23

Witness provides Testimony that includes:

- Employment as a school psychologist, for the DOE (Ex 19-1); - A review of her credentials and qualifications (Ex 19-1); - Familiarity with the Student, via IEP meeting, of 03/25/2022 (Correct date is 03/07/2022 – Ex 2-57 & 2-59)(Ex 19-2); - Review of Student materials, prior to the IEP meeting (Ex 19-2 to 19-4); - An inability to recommend Vision Education Services and/or Assistive Technology and/or Transportation Accommodations, without further assessment, which were requested from the Parent (Ex 19-2); - Parent did not respond to request for further information which resulted in a denial of additional assessments, and requested transportation accommodation (Ex 19-2 & 19-3, Ex 4, 5, 6 & 7); - A review of the IEP team recommendations (Ex 19-4); - Belief the recommendations were appropriate to address Student’s high level of need, and reasonably calculated to enable Student to meet goals and make educational progress (Ex 19-4 to 19-7); - Parent noted disagreement with lack of music therapy and other items, which is noted on the IEP (Ex 19-5); and - Opinion that music therapy is not required to attain appropriate educational progress. (Ex 19-6)

The DOE Attorney presented arguments via Closing Brief, seeking dismissal of the Parent’s DPC. (Ex VI, Ex A)

The DOE seeks to excuse the most glaring issue with the IEP, which is the lack of the appropriate 1:1 paraprofessional:

“Although the IEP contained a clerical error in the recommendation of a group paraprofessional rather than an individual paraprofessional, parent did not point out or highlight this error in the ten-day notices that were filed. It is respectfully submitted that, if the IHO finds for parent on Prongs 1 and 2, that tuition funding should be denied (or reduced) on Prong 3 due to parent’s failure to highlight the alleged error in the IEP.” (Ex VI 2 & 4)

The obligation to correct the DOE’s lack of development of an appropriate service to meet this particular Student need, is not shifted to the Parent.

The DOE, however, evidenced neither a response to the Parent’s DPC (200.5 (i)(4), nor a Resolution Meeting (200.5 (j)(2)). A letter was sent to the Parent counsel indicating the matter was not appropriate for settlement. No specific response to Parent claims was evidenced.

A more detailed response, or a proper Resolution Meeting, may have brought to light the issue relating to the DOE described clerical error, relating to the paraprofessional. (T 83-84, Ex 2-51) Notably, the DOE could have acted at any time to correct the clerical error, and has not yet evidenced any action to correct what is presented as a clerical error.

The DOE Witness acknowledged the necessity of the 1:1 Student para in an appropriately assembled IEP, yet again, no action is evidenced to correct the IEP deficiency. (T 85) Ultimately, the DOE description of the lack of a 1:1 paraprofessional as a clerical error does not enable the Parent to have placed the Student appropriately under the incorrect IEP. The DOE school placement would carry out the IEP, as drafted, until someone took action. It is not reasonable to expect the Parent to place the Student, with such severe needs, without the appropriate 1:1 paraprofessional in place.

The DOE argues that some services may not have been included in the IEP (air conditioning); and evaluations not completed, due to Parent not submitting appropriate forms to the DOE. (Ex 4,5, 6, 7 & 19-2) It is understandable that the DOE may require various forms to move forward with evaluations and/or services for the Student. However, the record already includes information relative to the actual need for Student special education services in the areas of Assistive Technology, Vision and Hearing: - The Student is already utilizing Assistive Technology, and shown to have impairment with vision. “An assessment for the support of sign language to aide in his comprehension and communication showed that [Student’s] performance in task completion, following directions and participating was notably improved by sign support. As a result, Hearing Education Services are now recommended once weekly for 60-minute sessions.” (Ex D 1); - Student utilization of Assistive Technology: Standardized Tactile Augmentative Calendar Symbols (STACS), voice output switch, an AAC device (Ex D 2); LITTLEmack switch (Ex D 24); AAC Device, AAC Wheelchair Mount Switches, Switch Mounts, Computer, Computer Switch Interface, Software, Adaptive Seating: example: Rifton chair for toileting (Ex D 61); - Student uses a wheelchair with built-up handles, weighted materials for writing, painting and feeding, swings, AFOs, and adapted toilet seat. (Ex D 7); - Vision Performance, and assessment is detailed, with supports utilized for the Student (Ex D 14-15); and - Hearing and Auditory Performance. (Ex D 15-16)

The DOE should have been able to ascertain the need for services and evaluations based upon the information presented, and acted to implement, and further assess the need for services to address those needs. The team should have acted, at the IEP meeting, to assemble anything needed and/or obtain any verbal approval the team deemed necessary. The Student’s need for services in these areas is more than potential, it is actual and immediate.

The DOE failure to include appropriate transportation, Hearing and Vision Services, as well as the lack of a 1:1 paraprofessional, result in the DOE IEP being unable to offer the Student a FAPE, for the 22-23 school year.

The DOE argues, correctly, that the IEP does indeed include many appropriate services and support for identified Student areas of special need. This includes many Related Services and Goals, sourced from the UP documents. (IHO Ex VI 7-8)

The Parent does disagree with the recommended 12:1 + (3:1), defended as appropriate, by the DOE, (IHO Ex VI 6)

The DOE does argue, correctly, that evidence does not substantiate the specific need for Music Therapy. Goals, as reviewed below, may be reasonably addressed via the array of other related services. The lack of Music Therapy does not result in, or contribute to, a denial of FAPE. (IHO Ex VI 8-9)

The recommended school placement is evidenced to be able to deliver the services in the IEP, as argued by the DOE. (IHO Ex VI 8-9)

Regarding the appropriateness of the UP placement, that is considered further below.

The DOE argues against the transportation funding, sought by the Parent. The DOE argues the cost is excessive and evidence does not support the transportation as appropriate. The DOE does not present any evidence regarding appropriate transportation costs. (IHO Ex VI 13)

The DOE argues that the IEP’s lack of air conditioning as a support is due to the Parent failure to provide documentation. (IHO Ex VI 13)

The DOE argues the Parent’s Ten-Day Notice is insufficient in that it is vague, and fails to point out IEP deficiencies with specificity, such as the lack of the 1:1 paraprofessional. (Ex I, Ex VI 15-16)

The DOE argues the cost of the Student UP program is excessive:

“According to the [REDACTED] Enrollment Contract, the cost of base tuition at [REDACTED] is $[REDACTED] for the 2022-2023 School Year. Ex. H-1. Related Services are billed separately in an amount of $[REDACTED]. Ex. H-2. The total cost of the student’s program is upwards of $[REDACTED]…This cost does not include transportation. For transportation, each morning or afternoon trip is billed at $[REDACTED].00. Ex. G-2. The cost for transportation is therefore $[REDACTED].00 per day. Since there are about 48 weeks in a 12-month school year, and 5 days per week, the transportation charge comes out to about $[REDACTED] for the year. Adding up the cost of the program and the transportation yields an amount on or about $[REDACTED]. The Department submits that these costs are unreasonable and excessive.” (IHO Ex VI 17)

The DOE, however, fails to provide any evidence of what a reasonable cost would be for delivery of the services provided, by the UP.

At Hearing, the Parent supported its position via Documentary Evidence and Oral Testimony. The Parent’s evidence is found to be credible and supportive of the Parent’s position, to the extent considered below: [REDACTED], Director of Special Education, [REDACTED]

Testimony included:

- Swearing to Affidavit, Exhibit N, with a correction to the form of nursing the Student receives, from 1:1 to school nursing (T 110); - Review of staff involved with the Student, and their qualifications (T 112-116); - A Student Music Therapy Evaluation was conducted in 2019 (T 115-116); - The UP keeps a record of services delivered to each student (T 117-118); - If a Student misses a session the UP policy is to make up missed sessions (T 18-119); - Function of a feeding tube (G-Tube), for which 1:1 nurses are mostly in charge (T 123-124); and - Medications are provided via a nurse. (T 124)

[REDACTED], Parent

Witness provided Testimony, following interpretation of her Affidavit of Testimony (Exhibits L & M, T 160-163), which included:

- Student is attending the UP , for the 22-23 school year (T 164); - Obligation to an amount of about $[REDACTED], for Student Tuition for attendance, at the UP (T 167); - Not knowing the exact number she is obligated to for Student transportation, though she states: “…but I know it’s a lot.” (T 167); - The DOE school day is not long enough to deliver the Student therapies (T 168); - The UP is in charge of the Student’s transportation (T 169); - Witness disagreed with the DOE IEP, in part due to it not including: hour long therapy sessions, lack of Music Therapy, and lack of pool therapy (T 170-172); and - Witness was asked if she could afford to pay the UP Tuition, and responded: “No, but I will do everything in my power to do, even if I have to work day and night, because I have to do everything that is in my power so he can keep progress.” (T 172)

Parent Attorney sets forth the basis of the Parent’s allegations and sought after relief via DPC (Ex A); opening statement (T 105-108); and Closing Brief (IHO Ex VII) A 10/27/2022 Due Process Complaint – (DPC)

Details Parent allegations and sought after relief.

D 03/06/2022 [REDACTED] Individualized Education Program (IEP)

UP IEP details multiple Student diagnoses and challenges related to his education:

Student is: “an energetic, outgoing [REDACTED] young man whose diagnoses include quadriplegic cerebral palsy, muscle hypotonia, developmental delay, [REDACTED], dystonia, [REDACTED], impaired mobility, microcephaly and intellectual disability…requires a modified environment that reduces visual complexity and sound distractions in combination with individual and small group instruction to allow him to be successful academically. Additionally, due to [Student’s] brain-based disability, there are severe impairments in his cognition, language, memory, attention, reasoning, abstract thinking, judgment, problem solving, vision and information processing and speech. While he demonstrates potential to learn and excel, [Student’s] rate of progress is dictated by his environment and his need for 1:1 instruction and a 1:1 Paraprofessional. Additionally, [Student] needs to be placed in a 6:1:1 class to support his needs…An assessment for the support of sign language to aide in his comprehension and communication showed that [Student’s] performance in task completion, following directions and participating was notably improved by sign support. As a result, Hearing Education Services are now recommended once weekly for 60-minute sessions.” (Ex D 1)

The UP IEP also includes:

- Student utilization of Assistive Technology: Standardized Tactile Augmentative Calendar Symbols (STACS), voice output switch, and an AAC device (Ex D 2); - Student supports including: individualized support, small class size, continual adult supervision, 1:1 paraprofessional, breaks throughout the day, and concepts repeated (Ex D 3); - Present levels of performance, and supports in areas of: Social (Ex D 2); Physical (Ex D 3-7); Equipment Needs/Support (Ex D 7); ADL Skills (Ex D 9); Gross Motor, Ambulation (Ex D 11); Vision (Ex D 14-15, 17-19); Hearing and Auditory Performance (Ex D 15-16); Academics (Ex D 16-17); Assistive Technology (Ex D 19-22); Speech (Ex D 23-29); Occupational Therapy (Ex D 30-31); Physical Therapy (Ex D 31-35); Music Therapy (Ex D 35); and Transition Activities (Ex D 36) - Student is noted to have a behavior intervention plan (BIP) Ex D 43); - Student is noted not to be able to participate in regular class, extracurricular and other non-academic activities, due to his severe impairments (Ex D 44); and - Goals for Academics (Ex D 44-46); Vision Education Services (Ex D 46-47); Hearing Education Services (Ex D 47-49); Assistive Technology (Ex D 49-50): Speech Therapy (Ex D 50-52); Physical Therapy (Ex D 52-54); Occupational Therapy (Ex D 54-56); Music Therapy (Ex D 56-58); and Paraprofessional. (Ex D 58-60)

The UP IEP details why the current program, and class size, are believed to be appropriate: “Due to [Student’s] need for intensive support, a highly structured and routine environment and a small class size, the 6:1:1 program recommendation remains in place for him. He is making progress in his current setting and thus a more restrictive placement is not warranted; a larger class size would be detrimental to his ability to maintain the progress he has made and to continue it, due to the consequent decreased one-on-one with the time with the teacher and increased auditory and visual distractions.” (Ex D 60)

IEP includes Transportation Supports: Busing with: Adult Supervision – Paraprofessional Vehicle and/or Equipment needs– Lift bus Vehicle and/or Equipment needs – Air Conditioning Vehicle and/or Equipment needs – LIFT-BUS/WHEELCHAIR RAMP Other Accommodations – LIMITED TRAVEL TIME 60 MINUTES. (Ex D 60)

Student UP Program includes:

o 12-month program o 6:1:1 o Full time extended day o Occupational Therapy, Individual, 5 x 60 minutes weekly o Physical Therapy, Individual, 5 x 60 minutes weekly o Speech Language Therapy, Individual, 5 x 60 minutes weekly o Vision Education Services, Individual, 3 x 60 minutes weekly o Parent Counseling and Training, Individual/Group, 1 time monthly o 1:1 Paraprofessional o Assistive Technology Services and devices (Ex D 61-62)

Regarding Music Therapy, Student, as in other areas, utilizes assistive technology, and works towards sensorimotor, cognitive and speech goals. (Ex D 35)

While reasonably supportive of Student’s needs, evidence is not presented which distinguish Music Therapy as a necessary part of the Student program. This part of the Student program is not part of what would be necessary to offer the Student a FAPE, though it is part of the Student’s overall program designed to address the Student’s unique special needs, and reasonably enable him to make progress.

E 03/07/2022 New York City (NYC) Department of Education (DOE) IEP

Duplicate of Exhibit 2, reviewed above.

F 06/22/2022 Prior Written Notice

Parent received School Location Letter, Dated 06/22/2022.

G 07/19/2022 Transportation Agreement

Agreement sets forth terms of Student transportation to and from the UP, for a 12-month school year. (Ex G 1)

Agreement includes transport of a wheelchair, inclusion of a paraprofessional, and air conditioning. (Ex G 4)

Cost, with paraprofessional, is set as $[REDACTED], each way. (Ex G 2)

Parent is obligated to payment of the contract, via signature. (Ex G 5) H 08/16/2022 [REDACTED] Enrollment Contract

Student 22-23 enrollment contract runs from 07/09/2022 through 06/23/2023. (Ex H 8)

Tuition includes an academic and related services program, as set forth in the Student’s UP IEP (Ex D). (Ex H 8)

Tuition includes:

- Base Tuition: $[REDACTED] (Paraprofessional, School Nurse and academic programming) (Ex H 8) - Supplemental Tuition: $[REDACTED] (Based on Student services) Hourly - $[REDACTED] individual / $[REDACTED] group Related Services, Technology Services and Equipment (Ex H 8-9) - Total: $[REDACTED]

Parent is obligated to payment via signature, dated 08/16/2022. (Ex H 7 & 13) It is noted that though the school year started on 07/09/2022, the contract was not signed, until 08/16/2022. (Ex H 7 & 13)

I 08/23/2022 Ten Day Notice (TDN)

Parent provides TDN, dated 08/23/2023, after the start of the 22-23 school year.

A previous TDN was sent in, via a different Parent Attorney, dated 07/19/2022. (Ex 16)

Notice includes:

- “Pursuant to 20 U.S.C. §1412 (a)(10)(C)(iii) and 34 C.F.R. §300.148 (d)(1)), and on behalf of our Clients, we are providing the New York City Department of Education, the Student’s local educational agency (“DOE”), ten (10) business days’ notice of the Parents’ intent to remove Student from the DOE’s recommend school placement because of the DOE’s failure to offer or provide the Student with a Free Appropriate Public Education (“FAPE”) for the 2022-2023 extended school year. Parent(s) intend to place the Student at the International Academy for the Brain d/b/a [REDACTED], Ltd. (“[REDACTED]”) for the 2022-2023 extended school year. [REDACTED] is located at [REDACTED] New York, NY 10128, and is a specialized educational program designed to educate and treat students, like [Student], who suffer from a brain injury or brain-based disorder. Parents will seek public funding for this placement.” (Ex I 1) Notice is inaccurate in that the Student is already, since 07/09/2022 (Ex H 8), enrolled, at the UP. TDN also rejects the DOE recommended program and placement, for the Student, as contained in the IEP, of 03/25/2022 (Ex E). (Ex I 1)

Parent notes concerns with the placement, and notifies the District of intent to place Student , at the UP, and seek District funding.

J 09/06/2022 Determination Letter

The DOE responds to the Parent’s TDN, of 08/23/2022 (Ex I & 17), notifying the Parent’s counsel that the claim is not “appropriate for settlement.”

K 2022-2023 [REDACTED] Schedule

Student UP academic and related services schedule.

Student program runs from 8:30 am to 5:00 pm.

L 01/26/2023 Affidavit of [REDACTED] (English Version)

Student’s mother provides Testimony that includes:

- Detailing Student diagnoses (Ex L 1); - Student attendance at the UP since the 2019-2020 school year (Ex L 1); - Student makes progress at the UP, for the 22-23 school year; - Attendance at the 03/07/2022 IEP meeting (Ex B); - Disagreement with aspects of the proposed IEP, including: 12:1:4 class, lack of vision, hearing and music therapy, and lack of limited travel time with an air conditioned bus; - Visiting, and rejecting, the proposed DOE Student placement, in part to the school day being too short to deliver all the Student services, and lack of air conditioning in the hallway; - Decision to enroll the Student, at the UP, during the summer of 2022; - DPC filed on 10/27/2023, related to the alleged DOE failures (Ex L 2); - Parent has always given consent concerning requested evaluations and Student evaluations, as requested, by the DOE; and - Parent is satisfied with the UP placement, and believes he should remain in order to continue to make progress. (Ex L 3)

Parent does not provide a specific date of the decision to enroll the Student at the UP, however, the enrolment contract is signed, by the Parent, on 08/22/2023. (Ex H 7 & 13)

Parent also is evidenced not have cooperated, entirely, with enabling several Student assessments, as indicated above. (Ex 3, 4, 5, 6 & 7)

N 01/26/2023 Affidavit of [REDACTED] - Sworn to 01/31/2023

Director of Special Education, at the UP, provided Testimony that included:

- Witness experience and qualifications (Ex N 1-2); - General characteristics of the UP: o not for profit, and highly specialized special education program in New York City created for children who suffer from acquired brain injuries or brain-based disabilities; o has an extended 12-month school year calendar and offers all services during its extended school day, which runs from 8:30 am to 5:00pm; o is an interdisciplinary program with students, many of whom are non-verbal and non-ambulatory; o every student at [REDACTED] requires a 1:1 paraprofessional to assist with activities of daily living and to have access to and benefit from the educational program; o many students require a 1:1 nurse to attend to the student’s medical needs; o has seven (7) 6:1:1 classes and three (3) 8:1:1 classes over two campuses, one in Manhattan and the other in Brooklyn; o can accommodate students aged 5 to 21 o most student’s at [REDACTED] have a disability classification of Traumatic Brain Injury (TBI) and have management needs that are either intensive or highly intensive and which require a significant degree of individualized attention and intervention; o provides for its students an individualized education program (IEP), geared towards improving functioning skills appropriate to their cognitive, physical and developmental levels, through a collaborative and multidisciplinary approach which incorporates the best practices from the medical, clinical, and educational fields; o through collaboration, students are instructed utilizing the most effective strategies with evidence based practices (Ex N 1); o UP practices include, direct instruction, cognitive strategies, and compensatory education (using diagnostic-prescriptive approaches), behavioral management, physical rehabilitation, therapeutic intervention, social interaction, and transition services (Ex N 2-3); o related therapy services, include occupational therapy, physical therapy, speech therapy, vision education, assistive technology services, parent counseling and training, and services for the deaf and hard of hearing; o related therapy services are designed to support the education of [REDACTED]’s students, as needed, usually in 60-minute intervals; o related services are provided using a push-in and pull-out model, which ensures that each student’s therapeutic goals are addressed in multiple locations; o doing so is critical for students with brain injuries because they have a severe deficit in their ability to generalize skills; o students at [REDACTED] generally require 60-minute sessions because of transferring and re-positioning needs, additional transition time and rest, and repetition needs to foster neuroplasticity. (Ex N 3) - A review of Student diagnoses (Ex N 3); - Student UP services, and supports, include: o a 6:1:1 class, speech, music therapy, vision therapy, occupational therapy, and physical therapy in addition to his academic curriculum in the form of push-in pull-out services; o Student requires an environment which offers highly individualized attention and support via small class size and continual adult supervision (a 1:1 paraprofessional and 1:1 nurse) to help him remain focused and assist him in responding to directives, participating and interacting with peers, and to fully benefit during his 1:1 therapies both inside and outside the classroom; o Student requires an intensive regimen of related services to help him build foundational skills and to support educational progress across all disciplines, including occupational therapy (“OT”), physical therapy (“PT”), speech and language therapy (“SL”), vision education services (“VES”), music therapy (“MT”), and hearing education services (“HES”), and assistive technology (“AT”) services, all provided in 60-minute sessions (Ex N 4); o Student’s Parent receives Parent Counseling and Training, once monthly, for 60 minutes (Ex N 4-5) - Student has made progress in skills across all academic domains and related service domains; - Attendance at the 03/07/2022 IEP meeting, which incorporated many aspects, and recommendations, of the UP IEP; and - Disagreement with the proposed 12:1:4 setting, and failure to include music therapy and vision education services. (Ex N 5)

Parent Attorney set forth allegations and sought after relief via the DPC (Ex A), and through Closing Brief. (Ex A & IHO Ex VII)

Parent Closing Brief reviews the Student’s educational history, and array of diagnoses and challenges. (IHO Ex VII 2-4)

Parent Attorney acknowledges the IEP, of 03/07/2022, adopted many aspects of the UP IEP. (Ex E & 2, Ex D) (IHO Ex VII 4-5)

Parent Attorney notes adverse IEP changes: class size, and failure to include music therapy and vision education services. (IHO Ex VII 4-5)

Parent Attorney argues: “On July 6, 2022, Parent initiated a DPC in IHO Case No. 241184, alleging, inter alia, that: (1) DOE denied [STUDENT] a FAPE during the 22/23 ESY; (2) [REDACTED] was appropriate for [STUDENT]; and, (3) equitable considerations support a full award of tuition and related services, including transportation, for [STUDENT] at [REDACTED] during the 22/23 ESY. (Ex. A). “ (IHO Ex VII 5)

The Parent’s DPC is actually dated 10/27/2022. (Ex A)

Regarding the allegation that the DOE failed to offer the Student a FAPE, via the 03/07/2022 IEP (Ex E & 2), Parent argues:

- The DOE failed to recommended the necessary 1:1 paraprofessional (IHO Ex VII 10-11); - Parent argues that the DOE failed to recommend appropriate related services to the Student: o Student is diagnosed with cortical vision impairment (“CVI”). [REDACTED] provided DOE with a comprehensive vision assessment and recommendations for vision therapy for [STUDENT] (Ex. D). However, DOE failed to recommend vision education services. (Ex. E). At the March 7, 2022, IEP meeting, DOE indicated that it could not add vision services to [STUDENT]’s IEP without an updated evaluation. (Ex. E). However, despite being presented with a vision assessment for [STUDENT] at the meeting, DOE failed to adopt [REDACTED]’s recommendation for vision services for [STUDENT]” (IHO Ex VII 11) and o “The [REDACTED] IEP for [STUDENT] indicates that he has responded well to music therapy and has made progress. The importance and efficacy of music therapy for [STUDENT] is global. But like vision services, DOE failed to adopt [REDACTED]’s recommendations for music therapy for [STUDENT] “ (IHO Ex VII 11)

Parent Attorney is correct that documentation evidences the Student present area of disability regarding vision, assessment, and currently applicable supports. This service is a necessary component of an IEP, able to offer the Student FAPE.

Regarding Music Therapy, this service/support while successful as part of the Student’s UP program, does not rise to the level of necessity, requiring its inclusion in an IEP.

Parent Attorney notes that if the DOE did not agree with Music Therapy services, it should have at least initiated an evaluation. (IHO Ex VII 12-13)

Parent alleges the DOE predetermined the outcome of the IEP meeting. Though the IEP did not meet the level of services included in the UP IEP, evidence does not support the IEP as being predetermined.

Parent Attorney reviews the evidence related to the appropriateness of the UP, noting: the general and Student specific services and supports included in the Student’s program: and progress, including progress related to Music Therapy. (IHO Ex VII 15-17)

Regarding equities, the Parent Attorney argues full cooperation, of the Parent, throughout the IEP process. (IHO Ex VII 18)

It is discussed above that the Parent did not appear to cooperate completely with the DOE in developing future assessments, for the Student. Those assessments, however, would be relevant in developing a future IEP, not the one currently being considered. The IEP at issue must be considered in light of the information available, both documentary and presented by Parent and other parties at the IEP meeting itself. At the meeting there was certainly enough information to develop an appropriate IEP for the Student capable of offering a FAPE, for the 22-23 school year.

Regarding the UP Tuition, Parent Attorney correctly argues that the DOE fails to present any specific evidence which would support the UP costs as excessive, relative to the services provided. (IHO Ex VII 18-19)

Similarly, no specific argument is made by the DOE regarding the transportation costs. (IHO Ex VII 19-20)

Parent Attorney argues appropriate relief, based upon the evidence, includes:

- [REDACTED] is and continues to be appropriate for [STUDENT]; and, equitable considerations favor a full award of tuition and related services, including special transportation, for [STUDENT] at [REDACTED].” (IHO Ex VII 21)

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

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (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 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 F.3d at 132; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 [S.D.N.Y. 2010], aff'd, 2012 WL 4946429 [2d Cir. Oct. 18, 2012]; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]).

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 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 support 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, supported 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 supported 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 upon 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 upheld 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 2022-2023 School Year

As considered above the DOE failed to offer the Student a FAPE via the IEP, of 03/07/2022. (Ex E & 2)

The DOE IEP contains several flaws which result in its being incapable of offering the Student a FAPE. This includes:

- Lack of the of the appropriate 1:1 paraprofessional, acknowledged as a necessary part of a FAPE capable IEP (T 85, E 31); - Minimal detail regarding Student Assistive Technology needs, “Material Management Needs (including assistive technology) – [Student] requires access to AAC” (Ex E 31-32); - The UP IEP details a variety of necessary Assistive Technology supports, lacking in the IEP, which are necessary components of the Student program (Ex D 2, 15-16 & 61); - Lack of Vision services despite assessment Student’s need for services (Ex 2-57, 2-58, 13-23 to 13-25, Ex D 1 & Ex 14-15); and - Lack of complete and appropriate transportation services, as indicated in the UP IEP, specifically, Air Conditioning Vehicle and LIMITED TRAVEL TIME

60 MINUTES. (Ex D 60)

The DOE does not adequately evidence why the change in class ratio was made, nor why the recommend class would now be apropriqate.it would be appropriate. The DOE, without assessment, or evaluation, altered Student’s class size ratio recommendation from 6:1:1 to 12:1:4, doubling the class size. (Ex. E-50)

The DOE offered evidence that, from the DOE’s perspective, the Parent acted to somehow frustrate the attempt of the DOE to offer a FAPE for the 22-23 school year.

Primarily, this argument relates to the evaluations and assessments as detailed above. (Ex 4,5, 6 & 7)

As considered above this argument is not persuasive, since documents and discussion, at the IEP meeting, were available to support much of the sought after Student services. Additionally, any information gleaned from new evaluations would be appropriately considered at a subsequent IEP meeting.

I find the DOE failed to offer the Student a FAPE for the 22-23 school year. UP Placement for the 22-23 School Year

Testimony and documentary evidence, as reviewed above, support UP as an appropriate Student placement for the 22-23 school year.

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. (Ex D, K, N, 8, 12 & 13)

UP provides special education services specifically tailored to meet the needs of the Student.

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

TUITION & TRANSPORTATION FUNDING 22-23 School Year

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

Parent is entitled to funding, as determined below, for the UP, 22-23, Tuition, and Transportation.

Parent provides a pair of TDNs to the District:

16 Ten Day Notice 07/19/22

17 Ten Day Notice 08/23/22

Neither TDN is not timely, considering the Student was already attending the UP, and the 22-23 school year commenced, on 07/09/2022. (Ex H 8)

In this case the Student began enrolment, at the UP, on 07/09/2023, for the 22-23 school year. (Ex H 8)

Parent notified the DOE of intent to continue UP placement, and seek funding, via letter, 07/19/2022. (Ex 16)

Student was already attending the UP, prior to the TDN, since 2019. (Ex 16)

The Parent did not sign the UP Contract, obligating herself to payment for Student services until 08/16/2022. (Ex H 7 & 12)

The Parent did not sign the Transportation contract, until 07/19/2022, again, after the 22-

23 school year attendance was underway. (Ex G 5)

An important consideration in determining appropriate relief is whether or not the parents notified the school board of their dissatisfaction with the IEP. See M.C., 226 F.3d at 68 ("[R]eimbursement is barred where parents unilaterally arrange for private educational services without ever notifying the school board of their dissatisfaction with their child's IEP.").

In this case, the Student was not removed from a Public School, since he has been attending the UP for prior years. (Ex L 1)

The Parent made it know to the IEP team, at the time of the IEP, 03/07/2022, of disagreement with the IEP recommendations. (Ex N 5, Ex 19-5 & T 170-172)

Any untimeliness of the TDN is minimal since the Student was already attending the UP, and disagreement with the IEP was presented at the IEP meeting, of 03/07/2022. (Ex E)

I therefore do not find it appropriate to reduce any award of Tuition, or Transportation, funding. TRANSPORTATION FUNDING 22-23 School Year The IDEA specifically includes transportation, as well as any modifications or accommodations necessary in order to assist a student to benefit from his or her special education, in its definition of related services (20 U.S.C. § 1401[26]; see 34 CFR 300.34[a], [c][16]). In addition, State law defines special education as "specially designed instruction . . . and transportation, provided at no cost to the parents to meet the unique needs of a child with a disability," and requires school districts to provide disabled students with "suitable transportation to and from special classes or programs" (Educ. Law §§ 4401[1]; 4402[4][a]; see Educ. Law § 4401[2]; 8 NYCRR 200.1[ww]).

Specialized transportation must be included on a student's IEP if required to assist the student to benefit from special education (Application of a Child with a Disability, Appeal No. 16035). If a CSE determines that a student with a disability requires transportation as a related service in order to receive a FAPE, the district must ensure that the student receives the necessary transportation at public expense (Transportation, 71 Fed. Reg. 46576 [Aug. 14, 2006]; see 8 NYCRR 200.1[ww]).

Transportation must be provided to a student with a disability if necessary for the student to benefit from special education, a determination which must be made on a case-by-case basis by the CSE (Tatro, 468 U.S. at 891, 894; District of Columbia v. Ramirez, 377 F. Supp. 2d 63 [D.D.C. 2005]; see Transportation, 71 Fed. Reg. 46576 [Aug. 14, 2006]; "Questions and Answers on Serving Children with Disabilities Eligible for Transportation," 53 IDELR 268 [OSERS 2009]; Letter to Hamilton, 25 IDELR 520 [OSEP 1996]; Letter to Anonymous, 23 IDELR 832 [OSEP 1995]; Letter to Smith, 23 IDELR 344 [OSEP 1995]). If the student cannot access his or her special education without provision of a related service such as transportation, the district is obligated to provide the service, "even if that child has no ambulatory impairment that directly causes a 'unique need' for some form of specialized transport" (Donald B. v. Bd. of Sch. Commrs., 117 F.3d 1371, 1374-75 [11th Cir. 1997] [emphasis in original]). The requested transportation must also be "reasonable when all of the facts are considered" (Alamo Heights Indep. Sch. Dist. v. State Bd. of Educ., 790 F.2d 1153, 1160 [5th Cir. 1986]).

Transportation Agreement sets forth terms of Student transportation to and from the UP, for a 12-month school year. (Ex G 1)

Agreement includes transport of a wheelchair, inclusion of a paraprofessional, and air conditioning. (Ex G 4)

Cost, with paraprofessional, is set as $[REDACTED], each way. (Ex G 2)

Parent is obligated to payment of the contract, via signature. (Ex G 5)

The DOE presents no evidence that the Transportation services are improper or excessive in cost.

I find Student is entitled to District Funding of Transportation costs as set forth under the Contract, subject to reduction, as detailed below.

TUITION FUNDING 22-23 School Year

Student 22-23, UP enrollment contract runs from 07/09/2022 through 06/23/2023. (Ex H 8)

Tuition includes an academic and related services program, as set forth in the Student’s UP IEP (Ex D, Ex H 8):

Tuition includes: - Base Tuition: $[REDACTED] (Paraprofessional, School Nurse and academic programming) (Ex H 8) - Supplemental Tuition: $[REDACTED] (Based on Student services) Hourly - $[REDACTED] individual / $[REDACTED] group Related Services, Technology Services and Equipment (Ex H 8-9) - Total: $[REDACTED]

Parent testifies she is unable to pay the UP tuition based on her limited income. (T 172) With regard to fashioning equitable relief, one court has addressed whether it is appropriate under the IDEA to order a school district to make retroactive tuition payment directly to a private school where: (1) a student with disabilities has been denied a FAPE; (2) the student has been enrolled in an appropriate private school; and (3) the equities favor an award of the costs of private school tuition; but (4) the parents, due to a lack of financial resources, have not made tuition payments but are legally obligated to do so (Mr. and Mrs. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 406 [S.D.N.Y. 2011]). The court held that "[w]here . . . parents lack the financial resources to 'front' the costs of private school tuition, and in the rare instance where a private school is willing to enroll the student and take the risk that the parents will not be able to pay tuition costs—or will take years to do so—parents who satisfy the Burlington factors have a right to retroactive direct tuition payment relief" (Mr. and Mrs. A., 769 F. Supp. 2d at 428). The Mr. and Mrs. A. Court relied in part on dicta from earlier cases in which similar claims seeking direct retroactive payment to a private non-approved school were asserted (see Connors v. Mills, 34 F. Supp. 2d 795, 805-06 [N.D.N.Y. 1998] [opining that such financial disputes should be resolved within the administrative hearing process]; see also S.W., 646 F. Supp. 2d at 358-60). The Mr. and Mrs. A. Court held that in fashioning such relief, administrative hearing officers retain the discretion to reduce or deny tuition funding or payment requests where there is collusion between parents and private schools or where there is evidence that the private school has artificially inflated its costs (Mr. and Mrs. A., 769 F. Supp.2d at 430).

In this matter the Parents choose to continue Student placement at UP, without any appropriate DOE alternative.

Parent needs to meet the burden of production and persuasion with respect to whether they have the financial resources to "front" the costs of a unilateral placement and whether they are legally obligated for the student's tuition payments (Application of the Dep't of Educ., 12-132; Application of a Student with a Disability, 12-036; Application of a Student with a Disability, 12-004; Application of the Dep't of Educ., 11-130; Application of the Dep't of Educ., Appeal No. 11-106; Application of a Student with a Disability, Appeal No. 11-041).

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 UP tuition, for the 22-23 school year.

I find the Parent is entitled to direct UP funding as Ordered below.

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. Supp. 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 upon 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. Supp. 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. Supp. 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. Upon 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)

A school has the right in the first instance to obtain a comprehensive evaluation upon which to structure a student's IEP, and only if the child's parents believe that the evaluation is insufficient can they seek an IEE at public expense for the school's additional consideration.

The publicly funded IEE protects parents' ability to contribute and have their voices heard; but this right arises in response to school action, it does not preempt it. Nor does it give parents the first and final word. The school, as a beneficiary of federal funds, has the right and obligation to conduct an evaluation in the first instance and to prove that its evaluation was appropriate. Only when those established procedures fall short does a parent get an IEE at public expense. See Schaffer, 546 U.S. at 60-61.

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 up 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.

Parent DPC includes an allegation that the DOE failed to evaluate the Student in all areas of suspected disability. (Ex A 5)

Parent seeks:

e. An Order directing DOE to fund an independent neuropsychological evaluation at public expense. (Ex A 7)

Parent Attorney argues:

“DOE failed to conduct updated evaluations in OT, PT, SL, and AT. (Ex. E). DOE failed to conduct a vision evaluation for the purpose of adding vision education to C.P.’s IEP. (Id.). Additionally, DOE failed to conduct a neuropsychological evaluation, despite DOE’s own Standard Operating Procedures Manual recommending such an evaluation for students who have traumatic brain injuries. (Special Education Standard Operating Procedures Manual (nyced.org)). The only meaningful evaluation that DOE conducted prior to the hearing was a psychoeducational evaluation, which is not enough to properly evaluate C.P. for an IEP meeting. (Ex. E).” (IHO Ex VII 13)

In this case the DOE did not present any evaluations to dispute the allegation that the Student was not sufficiently evaluated in all areas of disability.

Documents presented in evidence, are not responsive to the claim that a Neuropsychological Evaluation is needed. (Ex 8, 9, 10 & 11)

The DOE does seek opportunity to conduct the requested evaluations moving forward.

The DOE failed to defend against the specific allegation that the requested evaluation is needed to assess the Student is all areas of suspected disability.

I find the Parent is entitled to the sought after IEE as Ordered below.

ORDER

1. The Department of Education (DOE) failed to offer the Student a FAPE for the 2022-2023 school year.

2. The DOE shall directly fund Student transportation services, up to the amount of $[REDACTED], each way, to and from, the Student’s home and [REDACTED] –

International Academy for the Brain, for the 22-23 school year.

3. The DOE shall directly fund Student, 12-month, 22-23 Tuition, for Student Program, at [REDACTED] -International Academy for the Brain (UP), for the 22-23 school year, as per Tuition Contract:

o Base Tuition: $[REDACTED] (Paraprofessional, School Nurse and academic programming) o Supplemental Tuition: $[REDACTED] (Based on Student services) Hourly - $[REDACTED] individual / $[REDACTED] group Related Services, Technology Services and Equipment o Up to Total: $[REDACTED]

4. The DOE shall fund an Independent Neuropsychological Evaluation of the Student.

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: March 10, 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 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.

New York City Department of Education, Impartial Hearing Decision