New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 593017 - NYC: 243483

FINDINGS OF FACT AND DECISION

STATE EDUCATION DEPARTMENT OF NEW YORK

X In the Matter of a Complaint Pursuant to Part 200 of the Regulations of the Commissioner of Education Regarding, STUDENT ^[1], a minor, by and through his/her Parent(s),

Petitioners

-against-

NEW YORK CITY DEPARTMENT OF EDUCATION,

Respondent.

X

FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION

INTRODUCTION AND PROCEDURAL BACKGROUND

This matter came before the hearing officer by way of a due process complaint filed by the Parent on December 8, 2022. A second DPC was filed by the District on December 23, 2022, which challenged the Parent’s request for IEEs. An order consolidating these DPCs was issued on January 31, 2023, on consent of the parties. A hearing was held with regard to the Parent’s request for IEEs on February 14, 2023. An order entitling the Parent to obtain the requested IEEs was issued on February 14, 2023.

A third DPC was filed by the Parent on June 30, 2023. An order consolidating this third DPC with the prior DPCs was issued on July 18, 2023, on consent of the parties. No written response to this DPC was provided by the Respondent, the New York City Department of Education (hereinafter “DOE”, “District” or “Respondent”). A hearing was held regarding this matter on August 10, 2023. It was a closed hearing and the Petitioners were represented by [REDACTED]. Respondent was represented by [REDACTED], District Representative. The record was closed on August 18, 2023.

In the due process complaint, the Parent requested direct payment and/or tuition reimbursement for a unilateral placement at the [REDACTED] (“[REDACTED]”) covering the 2023-2024 school year. In addition, the Parent sought compensatory education and services for alleged FAPE violations which occurred during the 2021-2022 and 2022-2023 school years. Finally, the Parent sought an order entitling the Student to ongoing home-based ABA therapy services and for the District to fund certain assistive technology.

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 the New York State Education Law, Educ. Law Art. 89 § 4404 et seq., and its implementing regulations, 8 N.Y.C.R.R. § Part 200.

BACKGROUND

Student is an [REDACTED]-year-old child mandated for a 12-month school year who is classified as a student with Autism. The circumstances which gave rise to the current due process complaint involved the alleged failure of the CSE to review the Student’s current IEP, the CSE’s failure to request any updated evaluations for the Student and the CSE’s failure to recommend an appropriate program for the Student for the 2021-2022, 2022-2023 and 2023-2024 school years.

ISSUES

1) Whether Student was denied a FAPE for the 2021-2022, 2022-2023, and 2023-2024 school years by the failure of the CSE to request updated evaluations for the Student, by failing to develop an appropriate IEP for the Student for the 2021-2022, 2022-2023, and 2023-2024 school years and/or by failing to recommend or provide Student an appropriate placement.

2) Whether the Parent’s unilateral placement(s) of the Student for the 2023-2024 school year was appropriate to the Student’s needs.

3) Whether the Parent has standing to pursue a claim for the payment of tuition.

4) Whether the equities favor reimbursement.

5) Whether the Student is entitled to compensatory education and/or services.

6) Whether the District should be directed to fund the Student’s assistive technology.

7) Whether the Student is entitled to ongoing ABA therapy.

Petitioner requests relief in the form of an order directing the District to fund the tuition at [REDACTED] for the 2023-2024 school year. The Parent also seeks an order entitled the Student to compensatory education and services and an order directing the District to fund the Student’s assistive technology as well as ongoing ABA therapy.

EVIDENCE SUBMITTED AT HEARINGS

DISTRICT’S CASE

The District introduced no exhibits.

PARENT’S CASE

The Parent introduced seventeen (17) exhibits into evidence which included the following:

P-A: DPC

P-B: Rate Sheets

P-C: PWN

P-D: Fountas and Pinnell Grade Correspondence

P-E: IEP

P-F: IEP

P-G: Independent Neuropsychological Evaluation

P-H: Independent PT Evaluation

P-I: Independent OT Evaluation

P-J: Independent ABA Skills Assessment

P-K: Independent FBA/BIP

P-L: Independent SLT Evaluation

P-M: Independent Assistive Technology Evaluation

P-N: Program Description

P-O: Affidavit – School Representative

P-P: Affidavit – Psychologist

P-Q: Affidavit - Parent

WITNESSES

The District presented no witnesses.

The Parent presented three witnesses, [REDACTED], Executive Director at [REDACTED], [REDACTED], Psy.D., and the Parent. In lieu of direct examination, the Parent produced affidavits of the witnesses.^[2] The District was given the opportunity to crossexamine the witnesses.

FINDINGS OF FACT

After considering all of the evidence, as well as arguments of both sides, this Hearing Officers Findings of Fact are as follows:

1) The Student was a [REDACTED]-year-old child entering the 2021-2022 school year.^[3] The Student is classified as a student with Autism. ^[4]

2) The District appeared in this matter. However, the District did not present a Prong I case. The District further declined to submit a written closing and so offers neither evidence or argument against the Parent’s claims. Based on this failure, I am constrained to find that the District has conceded that it did not conduct an appropriate review, that it failed to conduct relevant evaluations, failed to develop an appropriate IEP, and/or did not offer the Student an appropriate placement for the 2021-2022, 2022-2023, and 2023-2024 school years. As a result, there is no question that the Student was denied a FAPE for the 2021-2022, 2022-2023, and 2023-2024 school years.

3) Subsequent to the filing of the Parent’s DPC, an interim order was issued directing the District to fund a number of IEEs. The Parent submitted copies of reports generated from those evaluations.^[5] The net result of those evaluations was that the evaluators determined that the Student is far behind his peers and required both a small structured setting and a considerable amount of compensatory education and services. The District presented neither witnesses nor arguments against such an award and is deemed to have conceded that the Student is, in fact, entitled to both a more appropriate placement than it has offered the Student to date as well as compensatory education and services.

4) During the 2023-2024 school year, the Parent intended to place the Student at [REDACTED] beginning in September 2023.^[6] The yearly tuition for [REDACTED] is ninety-seven thousand sixty-six dollars and seventy-seven cents ($97,066.77).^[7] Again, the District offered neither evidence nor argument against an award of direct funding for the Student’s placement at [REDACTED]. The District did, however, send the Parent a PWN which recommended that the Student attend a [REDACTED] school.^[8] However, there is no evidence in the record that the District ever sent the Student a school location letter essentially leaving the Parent with no school to send the Student to for the 2023-2024 school year.

5) The Parent submitted no ten-day notice with regard to his stated intention to enroll the Student at [REDACTED] for the 2023-2024 school year. During the course of the last IEP meeting, held in October 10, 2022, the Parent merely indicated that he was not in agreement with the program the District was offering and was looking into non-public schools.^[9] The Parent indicated in their affidavit that he met with personnel at [REDACTED] and that he was “told” the cost of the tuition which he further stated he could not afford. On the other hand, the Parent introduced no signed enrollment contract or tax returns to support either claim.

6) For the 2023-2024 school year, the Parent submitted documentation which arguably demonstrated that [REDACTED] may be an appropriate placement for the Student.^[10] In addition, the testimony of the school representative set forth the various ways in which [REDACTED] intended created a program which was specifically tailored to address the Student’s unique needs. ^[11]

7) The Parent submitted no enrollment contract signed by the Parent which legally obligated the Parent to pay the tuition at [REDACTED]. Rather, the Parent, in his affidavit, indicated that he was told was the yearly tuition was at [REDACTED] and that he could, in fact, enroll the Student at [REDACTED] “if it were ordered.” ^[12]

8) The Parent submitted ample documentation to support the Student’s claim for compensatory education and services.^[13] The Parent submitted ample evidence to demonstrate that the Student requires assistive technology to enable him to access his education.^[14] The Parent submitted ample evidence to demonstrate that the Student requires ongoing ABA therapy.^[15] The District did not meaningfully challenge (or offer argument against) any of these claims.

CONCLUSIONS OF LAW AND DISCUSSION

Denial of FAPE

The purpose of the IDEA is “to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs.” Bd. Of Educ. V. Rowley, 458 U.S. 176, 179-91 (1982). Implicit in the congressional purpose of providing access to a free and appropriate public education (hereinafter “FAPE”) is the requirement that the education to which access is provided be sufficient to confer some educational benefit upon the handicap child. (Id.)

Pursuant to 20 U.S.C. §1401(9) and 34 C.F.R. §300.17 FAPE is defined as follows:

Special Education and related services that are provided at public expense under public supervision and direction and without charge; meet the standards of the SEA… include an appropriate preschool, elementary school, or secondary school education in the State involved; and are provided in conformity with the individualized education program (IEP).

In deciding whether the Respondent provided a student with a FAPE, the inquiry is typically: (1) whether the Respondent complied with the procedures set forth in IDEA; and (2) whether the student’s IEP is reasonably calculated to enable the student to receive educational benefit (Rowley, supra.). Under the second prong, a school district need not maximize the potential of child but must open the door of public education in a meaningful way, and the IEP must provide the opportunity for more than only a “trivial advancement” P. v. Newington Bd. Of Educ., 546 F.3d. 111 (2nd Cir. 2008).

The IEP is “the centerpiece of the statute’s education delivery system for disabled children” Honig v. Doe, 484 U.S. 305, 311 (1988). An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides appropriate specialized instruction and related services. See 34 C.F.R. §300.320 (a). For an IEP to be “reasonably calculated to enable the child to receive educational benefits,” it must be “likely to produce progress, not regression” Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998).

Additionally, each public agency must ensure that, as soon as possible following the development of an IEP, special education and related services are made available to the child in accordance with the child’s IEP. In order to implement the IEP, a team that includes the child's parents determines where the child should be placed based on the child's IEP. Thus, the placement should not dictate the IEP but rather the IEP determines whether a placement is appropriate. Rourke v. District of Columbia, 460 F.Supp.2d 32, 44 (D.D.C. 2006).

The DOE must ensure that the IEP team reviews a student’s IEP periodically, but not less than annually, to determine whether the annual goals for the child are being achieved. Moreover, the DOE must ensure that the IEP team revises the IEP, as appropriate, to address any lack of expected progress toward the annual goals; and the results of any reevaluation or information about the child provided to, or by, the parents. Additionally, if the parent obtains an independent educational evaluation (“IEE”) at public expense, or shares with the public agency an evaluation obtained at private expense, the school district must consider the results of the evaluation, if it meets agency criteria, in any decision made with respect to the provision of FAPE to the child. The IDEA mandates that an IEP be based on the results of the most recent evaluation of a student.

In determining the appropriate placement for a child, preference is given to the least restrictive environment and the appropriate schools nearest the child's home (Id.). The IDEA requires that unless the IEP of a child with a disability requires some other arrangement, the child is to be educated in the school that he or she would attend if the student was otherwise not disabled. In selecting the least restrictive environment, consideration is given to any potential harmful effect on the child or on the quality of the services that he or she needs. A child with a disability is not removed from education in age-appropriate regular classrooms solely because of needed modifications in the general education curriculum. See 34 C.F.R. § 300.116.

When developing the IEP, the District will have evaluations of the child, as a procedural safeguard the parents are entitled, as a matter of Law, an independent education evaluation (IEE) at public expense. 34 CFR § 300.502

Where a school system fails to provide special education or related services to a student with a disability, the student is entitled to compensatory education, “i.e., replacement of educational services the child should have received in the first place.” Reid v. District of Columbia, 401 F.3d 516 (D.C. Cir. 2005). An award of compensatory education “should aim to place the disabled children in the same position they would have occupied but for the school district’s violations of IDEA” (Id.). Compensatory education is a remedy for “past deficiencies” therefore a finding as to whether a student was “denied a FAPE in the relevant time period is a necessary prerequisite to a compensatory education award.” Peak v. District of Columbia, 526 F. Supp. 2d 32 (D.C. Cir. 2007).

Pursuant to New York Education LAW § 4401(c)(1) the DOE shall have the burden of proof, the burden of persuasion, and the burden of production in impartial hearings except for instances where the parent is seeking tuition reimbursement for a unilateral parental placement and in those cases the parent shall have the burden of persuasion and the burden of production as to the appropriateness of the placement. The burden of proof in matters such as this shall only be met upon a fair preponderance of the evidence. The preponderance of the evidence standard requires that the trier of fact to find that the existence of a fact is more probable than its nonexistence. Concrete Pipe & Products of California, Inc. v. Construction Laborers Pension Trust for Southern California, 508 U.S. 602, 622 (1993).

Unlike other standards of proof, the preponderance-of-evidence standard allows both parties to share the risk of error in a roughly equal fashion, except that when the evidence is evenly balanced, the party with the burden of persuasion must lose. Director, Office of Worker’s Compensation Programs v. Greenwich Collieries, 512 U.S. 267, 281 (1994).

In the instant matter, with regard to the Parent’s claim for prospective funding, direct payment and/or tuition reimbursement for the Student’s placement at [REDACTED], the Respondent presented neither documentary evidence nor witnesses. In the absence of a witness who could defend the IEPs developed for the Student, and, more importantly, explain how the proposed placement was appropriate for the Student, there is insufficient information in this record to conclude that the District provided the Student with a FAPE for the 2023-2024 school year. In fact, there is no evidence in this record to suggest that the District has even offered the Student a placement at all for the 2023-2024 school year.

Moreover, in assessing the propriety of the family’s effort to rectify the district’s failing, the decision-maker must take into account the limited range of options available to the family, the degree to which they possessed technical/professional educational expertise, the urgency of the placement timetable, and their natural desire to maximize the student’s potential. The family is under no obligation to seek out a program that skirts just barely above the Endrew minimum, and the district that comes to the table with unclean hands is not in a strong position to argue that, notwithstanding its own derogation of duty, the family should be barred from seeking to remedy the deprivation of FAPE because the program they initiated was too good. One of the fundamental tenets of equity jurisdiction is that ‘he that hath committed iniquity shall not have equity.’

Reimbursement for Unilateral Placement

A court or a hearing officer may order a district to reimburse the parents of a student with a disability for the student’s unilateral private placement if the district failed to make a FAPE available in a timely manner and the unilateral private placement is appropriate, 34 CFR 300, 148 (c); Florence County Sch. Dist. Four v. Carter, 20 IDELR 532 (US 1993). Parents seeking tuition reimbursement as a remedy cannot simply speculate that the assigned school will fail to provide one or more services the student needs to receive FAPE; they must show that the school is not capable of implementing the student’s IEP, M.O. and G.O. v. New York City Department of Education, 65 IDELR 283 (2nd Cir. 2015); Y.F. v. New York City Dept. of Educ., 68 IDELR 92 (2d Cir. 2016, unpublished).

It is true that a unilateral private placement does not need to meet state standards for public education programs to be “appropriate” for reimbursement services, 34 CFR 200.148 (c). However, a unilateral private placement is appropriate for reimbursement purposes if it offers instruction that is specially designed to meet the student’s unique needs as well as the support services the student requires to benefit from that instruction, M.N. v. State of Hawaii, Dept. of Educ., 60 IELR 181 (9th Cir. 2013, unpublished); Ward v. Board of Education of the Enlarged City Sch. Dist. Of Middletown, NY , 63 IDELR 121 (2d Cir. 2014, unpublished).

In order to for a parent to establish that they have standing to assert a claim seeking the direct payment of rests in Article III of the Constitution of the United Stated which limits the jurisdiction of federal courts to “cases” and “controversies.” S.W. v. New York City Dept. of Educ., 646 F.Supp2d 346, 354 (S.D.N.Y. 2009) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 559 (1992)). “To satisfy the requirements of Article III standing, a plaintiff must show that (1) she has suffered an actual or imminent injury in fact, which is concrete and particularized; (2) there is a causal connection between the injury and defendant's actions; and (3) it is likely that a favorable decision in the case will redress the injury. The party invoking federal jurisdiction bears the burden of establishing these elements.” Id. “If the parents of a special needs child who is enrolled in a private school have not paid tuition and are not legally obligated to do so, then their standing to pursue IDEA remedies may be called into question.” E.M. v. New York City Dept. of Educ., 758 F.3d 442 (2nd Cir. 2014).

In the instant matter, while the District did not contest the appropriateness of the Parent’s proposed placement at [REDACTED], and while the documentation provided by the Parent would seem to indicate that [REDACTED] may very well be an appropriate placement for the Student, the Parent has failed to establish that, at present, they have standing to assert a claim for either tuition reimbursement or direct funding of the Student’s tuition at [REDACTED]. Specifically, the Parent’s failure to offer proof of an enrollment contract reflects, in the clearest possible sense, that the Parent has neither suffered an injuryin-fact nor that he is likely to sustain any injury to the extent that the Parent has not legally obligated himself to pay the tuition of [REDACTED]. In further support of this conclusion, the Parent has not, as far as this record is concerned, even provided the District with the requisite ten-day notice of the Parent’s intention to unilaterally place the Student. In fact, the most recent IEP reflects that the Parent indicated merely that he was looking into non-public school alternatives, not that he intended to enroll the Student at [REDACTED]. Even the Parent’s affidavit does not say the Student is enrolled at [REDACTED]. Rather, the Parent indicates the amount of the tuition, the fact that he learned that a seat is available but will only enroll the Student at [REDACTED] “if it is ordered.” Rightly or wrongly, the Parent is clearly unwilling to assume the financial risk of enrolling the Student at [REDACTED] until such time as he knows that the District will fund it. Indeed, although the last hearing date was held on August 10, 2023, there is no evidence that the Student is even attending [REDACTED] even though the Student is mandated for a twelve month school year. In any case, the ongoing absence of a legally enforceable obligation to pay the tuition at [REDACTED] deprives the Parent of standing to pursue such a claim.

It is for these reasons that I find that the Parent’s claim for direct payment and/or tuition reimbursement must be denied as the Parent has failed to demonstrate that the Parent has standing to prosecute this claim.

Equities

Pursuant to 20 U.S.C.A. § 1412(a)(10)(C)(iii), the cost of reimbursement described in clause (ii) may be reduced or denied if:

(I)(aa) at the most recent IEP meeting that the parents attended prior to removal of the child from the public school, the parents did not inform the IEP Team that they were rejecting the placement proposed by the public agency to provide a free appropriate public education to their child, including stating their concerns and their intent to enroll their child in a private school at public expense; or

(bb) 10 business days (including any holidays that occur on a business day) prior to the removal of the child from the public school, the parents did not give written notice to the public agency of the information described in item (aa); (II) if, prior to the parents' removal of the child from the public school, the public agency informed the parents, through the notice requirements described in section 1415(b)(3) of this title, of its intent to evaluate the child (including a statement of the purpose of the evaluation that was appropriate and reasonable), but the parents did not make the child available for such evaluation; or

(III) upon a judicial finding of unreasonableness with respect to actions taken by the parents.

As a general rule, a school district may not argue that the “equities are in its favor once it has failed to provide a FAPE or concedes that it has not.” N.R. v. Department of Education of the City of New York, 2009 WL 874061 (S.D.N.Y. 2009). However, where the record demonstrates that the Parent failed to cooperate with the CSE or actively took steps to thwart the District’s ability to develop an appropriate IEP for the Student, it is appropriate for the impartial hearing officer to either reduce or deny the Parent’s request for tuition reimbursement. Neske v. Porter, 2022 WL 3290561 (S.D.N.Y. 2022). In Neske, the Court held,

In determining whether parents have acted unreasonably, courts consider factors including: whether the parents cooperated with the CSE (e.g., providing reports, attending the meeting, participating in the meeting); whether the parents timely notified the school district of their intent to place their child in a private school; whether the parents visited the DOE's proposed placement; whether the parents intended to genuinely consider a proposed public placement, or whether they would have kept their child in private school regardless of the proposed public placement; whether the parents or the DOE unreasonably delayed anything; and the appropriateness of the DOE's conduct.

Id., at 3-4 (citing G.B. v. New York City Dept. of Educ., 145 F.Supp.3d 230, 257 (S.D.N.Y. 2015).

In addition, even where the District fails to present a Prong I case, and even when it does not contest the appropriateness of the unilateral placement, the courts have held that it remains Parent’s burden to demonstrate that the equities are in their favor. R.E. v. New York City Dept. of Educ., 694 F.3d 167, 185 (2nd Cir. 2012); see also Donohue v. New York City Dept. of Educ., 2021 WL 4481344 (S.D.N.Y. 2021).

In the instant matter, the District offered no evidence on the subject of the equities. However, due to the dismissal of the Parent’s claim for direct payment and/or tuition reimbursement on the basis of lack of standing, there is no reason to reach the issue as to whether equities favor the Parent or the District with regard to the Parent’s claim for the payment of tuition at [REDACTED]. In any event, there is no evidence in this record to suggest that the Parent has ever taken any action to thwart the District’s ability to assess the Student. Similarly, there is no evidence in the record to suggest that the Parent has not been given a full and fair opportunity to participate in the development of the Student’s IEPs.

Compensatory Education/Services

Compensatory education is an appropriate remedy under the IDEA. P. v. Newington, 546 F.3d. 111 (2nd Cir. 2008). The aim of compensatory education services is to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA. See, Reid v. District of Columbia, 401 F.3d 516, 518 (D.C. Cir. 2005) (finding that compensatory education is not a form of damages because the courts act in equity when remedying IDEA violations and must “do equity and …mold each decree to the necessities of the particular case”). When fashioning a compensatory award, it is appropriate to look at the specific educational deficits resulting from a child’s loss of FAPE, in order to ascertain what compensatory measures are appropriate to make the child whole. Id.; Mrs. C. v. Wheaton, 916 F.2d 69 (2d Cir. 1990).

Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case. See, Wenger v. Canastota, 979 F. Supp. 147 (N.D.N.Y. 1997); SRO Appeal 14-179. Within the Second Circuit, compensatory relief in the form of supplemental special education or related services has been awarded to students if there has been a denial of a FAPE. See, Newington, 546 F.3d at 123 ("[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and . . . compensatory education is an available option under the Act to make up for denial of a [FAPE]"). Likewise, SROs have awarded compensatory "additional services" to students who have been denied appropriate services, if such deprivation can be remedied through the provision of additional services before the student becomes ineligible for special instruction by reason of age or graduation. See, Bd. of Educ. v. Munoz, 16 A.D.3d 1142 (4th Dep't 2005) (finding it proper for an SRO to order a school district to provide "make-up services" to a student upon the school district's failure to provide those educational services to The Student during home instruction); see also, Application of the Dep't of Educ., Appeal No. 13-048; Application of a Student with a Disability, Appeal No. 11-091). The purpose of an award of additional services, like compensatory services, is to provide an appropriate remedy for a denial of a FAPE and accordingly, aim to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA. See, Newington, supra.

In the instant matter, the District did not present any evidence or witnesses that demonstrated that they had provided the Student with the services to which he was entitled. The District has therefore conceded, for all intents and purposes, and I so find, that it denied the Student a FAPE over the course of the 2021-2022 and 2022-2023 school years by failing to develop an appropriate IEP for the Student, by failing to recommend an appropriate program for the Student and/or by failing to implement their own IEP. It is similarly conceded that the Student was not provided with the level or type of services which he required. Based on the evidence presented by the Parent, it is clear that the Student is entitled to compensatory education and services.

ORDER:

Based on the Findings of Fact and Conclusions of Law and all evidence before the IHO, it is hereby ORDERED that:

1. The Parent’s claim for direct payment, prospective funding and/or tuition reimbursement of the Student’s placement at [REDACTED] is denied to the extent that the Parent, at present, lacks standing to pursue such a claim;

2. For the 2023-2024 school year, the District must fund ten (10) hours per week of home-based ABA therapy by a provider of the Parent’s choosing with said provider to be compensated at a reasonable market rate;

3. The Student is entitled to the following as and for compensatory education/services: a) A bank of 2760 hours of ABA therapy; b) A bank of 184 hours of social skills training; c) A bank of 184 hours of parent training and counseling; d) A bank of 184 hours of BCBA supervision; e) A bank of 184 hours of counseling services; f) A bank of 184 hours of speech and language therapy; g) A bank of 92 hours of occupational therapy; and, h) A bank of 46 hours of physical therapy.

The above services shall be provided by providers of the Parent’s choosing with said providers to be compensated by the District at a reasonable market rate. Said services must be utilized on or before August 31, 2026, with the exception of the bank of 2760 hours of ABA therapy which shall not have an expiration date.

4. The District must fund the AT devices recommended by the independent AT evaluation obtained by the Parent as well as 30 hours of training.

5. The District must forthwith convene the CSE, upon reasonable notice to the Parent, and, at that meeting, the CSE is specifically directed to consider the reports from the IEEs obtained by the Parent and develop an appropriate program and make an appropriate placement for the Student.

6. The district must immediately upon receipt, enter this order on a system that is used to keep track of such orders.

SO ORDERED:

Dated: August 20, 2023

_Steven P. Forbes

Steven P. Forbes

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.

STATE EDUCATION DEPARTMENT OF NEW YORK

X In the Matter of a Complaint Pursuant to Part 200 of the Regulations of the Commissioner of Education Regarding, STUDENT, a minor, by and through his/her Parent(s),

Petitioners

-against-

NEW YORK CITY DEPARTMENT OF EDUCATION,

Respondent.

X

CERTIFICATION OF RECORD

The record before me as the Hearing Officer in this matter of the following:

1. Administrative Due Process Complaint (243483) dated December 8, 2022.

2. Notice of Hearing and Appointment dated December 21, 2022.

3. Administrative Due Process Complaint (249748) dated June 30, 2023.

4. Notice of Hearing and Appointment date July 5, 2023.

5. Parent’s Exhibits A-Q totaling two hundred eight (208) pages.

6. The written transcript of the hearing totaling one hundred fifty (150) pages.

7. Findings of Fact and Decision dated August 20, 2023.

I, Steven P. Forbes, the Hearing Officer in this matter, do hereby certify that the attached record is accurate and encompasses the entire record in the above-entitled matter as of this date.

I further certify that the materials forwarded herewith are the original or a true copy of the original documents and/or other tangible items that constitute the record in this matter.

EXECUTED this 20th day of August, 2023.

__Steven P. Forbes_______

STEVEN P. FORBES

Impartial Hearing Officer

Footnotes

[1] Personally, identifiable information is attached as a cover sheet to this decision and must be removed prior to public distribution.

[2] P-O; P-P; P-Q.

[3] P-E.

[4] Id.

[5] P-G; P-H, P-I, P-J; p-K; P-L; P-M.

[6] P-Q.

[7] P-O.

[8] P-C.

[9] P-F, page 10.

[10] P-N.

[11] P-O.

[12] P-Q.

[13] P-P.

[14] P-M.

[15] P-J.