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CASE NUMBER: 594034 - NYC: 251638
FINDINGS OF FACT AND DECISION
Student’s Name [1]: [REDACTED] (“Student”)
Date of Birth: [REDACTED]
School District: N.Y.C. Dept. of Ed., District # [REDACTED]
Hearing Requested by: [REDACTED] (“Parent(s)”)
Request Date/Date Complaint Filed: 09/13/2023
Actual Record Closed Date: 11/06/2023
Date(s) of Hearing: 11/01/2023
Date of Decision: 11/08/2023 Time Sensitive Yes Hearing Officer: Melanie L. Rios. Esq
NAMES AND TITLES OF PERSONS WHO APPEARED
NOVEMBER 01, 2023
For the Student:
[REDACTED], Pro Se Parent, Witness
For the Department of Education:
No Appearance, (hereinafter referred to as, “District Representative”)
BACKGROUND
The Student is a [REDACTED]-year-old student who is classified with “Autism” by the New York City Department of Education (“DOE” or “District”) under the Individuals with Disabilities Act (“IDEA”). The Student’s classification or eligibility for special education supports and services are not in dispute. The Student is currently attending the Public School for the 2023-24 school year. [2]
The Parent alleges that the District failed to provide the Student with a free and appropriate public education (“FAPE”) for the 2023-24 school year.[3] The Parent requests the following relief:
1) a finding that the DOE failed to provide the Student with a FAPE for the 2023-24 school year;
2) an order for the Committee on Special Education (“CSE”) to reconvene and refer the Student to the Central Based Support Team (“CBST”) for a New York State Education Department (“NYSED”) -approved non-public school (“NPS”) placement for the 2023-24 school year;
3) a 1:1 bus paraprofessional; and
4) a behavior intervention plan (“BIP”).
PROCEDURAL HISTORY
On July 12, 2023, Parent, a pro se litigant, filed a due process complaint (“DPC”) against the District, pursuant to the IDEA and the New York State Education Law.[4] On July 14, 2023, I was appointed impartial hearing officer (“IHO”) to this case to determine the claims in the DPC and to conduct an impartial due process hearing (“DPH”) pursuant to 20 U.S.C. § 1415(f) and New York State (“NYS”) Education Law § 4404(1), concerning the Student’s special education program. On August 11, 2023, the Resolution Period expired without the parties reaching an agreement regarding all of Parent’s requested relief. On August 16, 2023, a Settlement Conference and Pre-Hearing Conference were held, during which only the Parent attended. On August 30, 2023, a Status Conference was held, during which only the Parent attended. On September 11, 2023, a mediation took place between the parties, which concluded without the parties reaching an agreement. On September 13, 2023, a Due Process Hearing was scheduled, but converted to a Status Conference for the Parent to file an amended DPC, during which District Representative 1 and the Parent attended. On September 13, 2023, the Parent filed an amended DPC to request the additional relief of a 1:1 bus paraprofessional and a BIP.[5] On October 13, 2023, the resolution period expired without the parties reaching an agreement. On October 19, 2023, a Pre-Hearing Conference was held, during which both the Parent and District Representative 1 attended. Finally, on November 1, 2023, a DPH was held, during which only the Parent attended. [6]
At the DPH, the Parent submitted seven exhibits, all of which were admitted into evidence without objection as there was no representative for the District at the DPH. The Parent testified as their only witness. A list of the documentary evidence in this proceeding is appended to this Decision and Order.
JURISDICTION
A decision in this matter is being rendered, pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law Art. 89 § 4404 et seq., and its implementing regulations, 8 NYCRR § Part 200.
LEGAL FRAMEWORK
Under the IDEA, a free and appropriate public education (“FAPE”) is offered to a student when: (a) the DOE complies with the procedural requirements set forth in the IDEA, and (b) the individualized education plan (“IEP”) developed by its Committee on Special Education (“CSE”) through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits.[7] If a procedural violation is 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. [8]
The IDEA directs that, in general, an Impartial Hearing Officer’s (“IHO”) decision must be made on substantive grounds based on a determination of whether the student received a FAPE. [9] A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” [10]
To show a denial of a FAPE based on a failure to implement an IEP, a party must establish more than a de minimus failure to implement all elements of the IEP, and instead must demonstrate that the school board or other authorities failed to implement substantial or significant provisions of the IEP.[11] Courts have held that it must be ascertained whether the aspects of the IEP that were not followed were substantial, or in other words, “material.” [12]
In actions brought under the IDEA alleging a denial of FAPE, “the court shall grant such relief as the court determines is appropriate,” limited only by the restriction that “the relief is to be appropriate in light of the purpose of the Act.”[13] Equitable considerations are relevant in fashioning relief, and the court enjoys broad discretion.[14] Although an award of damages is not available under the IDEA, 15 “a court may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies.” [16]
School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement.[17] The standard required is a preponderance of the evidence.[18] Since this case does not involve a unilateral placement or tuition reimbursement claim, the DOE has the burden of proof on all issues.
15 See Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 486 (2d Cir. 2002)
FINDINGS OF FACT
I. FAPE
At impartial due process hearings in New York, the burden is on the District to prove that they provided Student with a FAPE.[19] A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits.[20] The Supreme Court has found that “[a] reviewing court may fairly expect those authorities [school district staff] to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.”[21] At the DPH, District Representative 2 did not appear and the hearing record is silent as to whether the District provided the Student with a FAPE for the 2023-24 school year. Therefore, the District failed to address or sustain its burden under the NYS Education Law and failed to demonstrate they provided Student with a FAPE for the 2023-24 school year. Accordingly, the Parent is entitled to a presumption as to the truth of the asserted facts underlying Parent’s claims that are contained in the documentary evidence and testimony to the extent that they are credible and not contradicted by the hearing record. Based on that presumption and the District’s failure to sustain its burden under the NYS Education Law, I find the record establishes that the District failed to provide Student with a FAPE 2023-24 school year.
II. CSE/CBST
Generally, an award of prospective relief in the form of Individualized Education Program (“IEP”) amendments and the prospective placement of a student in a particular type of program and placement, under certain circumstances, has the effect of circumventing the statutory process, pursuant to which the CSE is tasked with reviewing information about the student's progress under current educational programming and periodically assessing the student's needs.[22] However, concerns about circumventing the CSE process arise most prominently in matters where the school year challenged has ended and, in accordance with its obligation to review a student's IEP at least annually, the CSE would have already convened to produce an IEP for the following school year.[23]
Additionally, while prospective placement might be appropriate in rare cases[24] the pitfalls of awarding a prospective placement have been noted in multiple State-level administrative review decisions, including that where a prospective placement is obtained by the parents through the impartial hearing, such relief could be treated as an election of remedies, where the parents assume the risk that future unforeseen events could cause the relief to be undesirable. [25]
In the Parent’s DPC, the Parent stated that the Student is diagnosed with severe autism and is nonverbal.[26] In the Parent’s DPC, the Parent stated that they are “not happy with the placement that the District recommended,” specifically the District 75 (“D75”) Public School, for the 2023-24 school year and “would like [their] daughter in a [NPS]…” because “[the Student] can benefit more from the services offered.[27] The Parent explained that the “public school [t]hat [w]as recommended is not appropriate for [their] child.”[28] Additionally, the Student “tends to put everything in [their] mouth and must be watched at all times.”[29] As relief, the Parent requested that the Student be placed “in a [NPS] setting where [they] will be helped more and can actually benefit learning.”[30] As an example, the Parent referenced Blue Feather Elementary, which offers “[Applied Behavior Analysis], PECS, TEACHH, word/sign language, [augmented communication devices], social skills group, Star Autism Program, [Speech Therapy], [Physical Therapy], [Occupational Therapy], and much more.[31] The Parent wishes for the Student to be placed in a school that “could fully accommodate [their special] needs.” [32]
District Position
The District failed to appear at the hearing and present any evidence or testimony. Parent Testimony
The Parent represented themselves at the DPH as a pro se litigant. On the record, the Parent opted to combine their opening statement with their direct testimony. The Parent testified that want the CSE to refer the Student to the CBST to transfer the Student to a NYSED NPS from the Student’s current kindergarten placement at a D75 school. The Parent believes that a NPS will have more programs that will help the Student, as they were diagnosed with severe autism and are nonverbal. The Parent does not believe that the Student is progressing in their current setting and that if the Student was in the correct setting, they would make progress. The Student was additionally removed by the Parent out of their summer placement, as the Student was attacked while attending. The Parent argued that the Student should be placed in a “school for autism that is about autism.” The Parent wishes for the Student to be placed in a small class setting. The Student also has no speech-generating device to communicate with despite the DOE having knowledge that they are nonverbal. The Parent contacted the DOE to request a NPS placement after they received notice of the Student’s placement at the D75 Public School.[33] They were informed by the DOE to file a lawsuit. [34]
While the Parent stated at the DPH that the Student does not need to be in a NPS with Applied Behavior Analysis (“ABA”) therapy, they would prefer that the Student attend a NPS that utilizes ABA methodologies throughout the day. However, the Parent would be satisfied with any NPS for students with autism, regardless if they could provide ABA therapy. The Parent was familiar with a NYSED NPS called “Blue Feather Elementary” and would like the Student to attend that school, as it is a school for Students with autism. The Parent testified that the Student receives ABA therapy privately, along with Board Certified Behavior Analyst (“BCBA”) supervision, which the Parent arranged for the Student on their own without DOE involvement. The Student’s prior private “behavior therapist” created a plan for the Student to help them, which included potty training. The ABA therapist would come to the Student’s home and teach them how to read, do puzzles, match cards, etc. Most importantly, they would reinforce positive behavior, which allowed the Student to do “better by starting to become more structured.” The Student does not currently receive ABA therapy in school and when they requested such service for the Student, the Parent was informed by the DOE that it was “illegal” for the DOE to provide the Student with ABA therapy at school.
Overall, the Student requires a NPS that disciplines the Student and “reinforces [them],” as well as uses “constant repetition” during their academic classes because the Student requires a lot of repetition in order to master a subject. Documentary Evidence
The Parent additionally provided documentary evidence to support their request for a CBST referral to a NYSED NPS. Prior Written Notice, sent from the District, dated May 23, 2023, notes the Student’s classification as “Autism” and recommended a 10-month program in a 6:1:1 class at a New York City (“NYC”) DOE Specialized School.[35] The Prior Written Notice lists that the Student had the following assessments conducted: a Psychological Update, Classroom Observations, Occupational Therapy Progress Report, Physical Therapy Progress Report, Speech and Language Progress Report, Teacher Report, and Record Review. [36]
The Parent also provided the DOE’s Psychological Update, conducted on April 19, 2023, as part of the Student’s “turning 5 re-evaluation.”[37] At the time, the Student was 4-years-old and attended a Pre-Kindergarten placement in Brooklyn.[38] The Psychological Update acknowledges that the Student is diagnosed with “Autism” and stated that the purpose of the update was to “redetermine special education eligibility and appropriateness of special education services for Kindergarten.”[39] The Student placed in the “very likely” range for probability of Autism Spectrum Disorder (“ASD”), which “is consistent with a Level 3 severity for ASD, indicating that [the Student] requires a very substantial level of support.[40] The Student’s “overall adaptive functioning falls well below that of [their] same aged peers.”[41] The Student is nonverbal and their receptive, expressive, and written skills “were at the [l]ow adaptive level…,” “consistently responds to parent’s voice by looking and looks when parent gestures for attention,” inconsistently responds upon hearing [their] name called,” sometimes follows directions, “inconsistently understands basic gestures,” “does not yet understand at least 10 words,” inconstantly understands ‘no’ and ‘yes’.”[42] The Student cannot identify letters or write letters/words and cannot read.[43] The scored in the low adaptive level for personal, domestic, and community skills, as they cannot feed themselves, can cooperate with getting dressed/undressed, is not toilet trained, doesn’t consistently remain with their parents in public spaces, and does not yet “understand count with one-to-one correspondence.”[44] The Student scored in the low range for interpersonal relations, play & leisure time, and coping skills.[45] The Student can recognize familiar family members and friends, can show emotions, but is inconsistent with maintaining eye contact and does not play with peers.[46] The Student scored in the low adaptive level range for gross and fine motor skills, as they can run without falling, but are still working on going up and down the stairs and cannot catch, kick or throw a ball.[47] The Student can press buttons on a screen or keyboard, open a door using the handle, but cannot open or close scissors, or hold a writing instrument or crayons properly for drawing.[48] The Parent reported at the psychological assessment that the Student is “overly dependent, gets fixated on objects or parts of objects, eats non-food items, and engages in compulsive behavior.”[49] The Student also needs to be watched at all times.[50] The DOE’s Psychological Update has no recommendations other than that the Student’s “educational planning requires a special education program and environment that is highly structured with educational supports that will includes: adaptations, modifications, and accommodations in addressing [their] daily living skills, language, social and educational needs.” [51]
The Student’s IEP meeting for the 2023-24 school year was held on May 17, 2023, which the Parent attended.[52] The CSE recommended a 12-month special education program for the Student consisting of special education classes for all academic courses, a daily 1:1 health paraprofessional, and the following related services: counseling in a group of 2 1x/week for 30 minutes; 1:1 occupational therapy (“OT”) 3x/week for 30 minutes; group parent counseling and training (“PCAT”) 3x/year for 40 minutes; 1:1 physical therapy (“PT”) 3x/week for 30 minutes, and 1:1 speech-language therapy (“SLT”) 3x/week for 30 minutes.[53] Notably the Student is not recommended for any “strategies, including positive behavioral interventions, supports and other strategies to address behaviors that address the student’s learning or that of others” and was not recommended for a BIP.[54] Despite being nonverbal, the Student also was not recommended for a “particular device or service to address their communication needs” or for “an assistive technology device and/or service” to be used in-school or at-home.[55] The Student’s “Present Levels of Performance and Individual Needs” summarizes a Classroom Observation that was conducted in April of 2023, which notes the Student “requires significant amounts of adult supervision, prompting, and support to attend classroom activities and routines,” “was unresponsive to teacher’s directives and participated minimally.”[56] The Student is further noted under “speech-language therapy” to present “with severe speech and language deficits” and “does not have language to express [themselves]….”[57] The Student is beginning to be able to follow simple commands, but requires “maximal adult assistance.”[58] The Student’s IEP notes that they “benefit[] from significant amounts of adult supervision and prompting to attend classroom routines and activities,” “needs hand-over-hand physical cues,” “requires consistent prompting in and use of multi-sensory approaches to learn and engage.”[59] At the IEP meeting, the Parent reported that the Student made minimal progress, but had made more progress with their 1:1 private behavior specialist. [60]
As the Parent testified, a NPS that specializes with educating students with ASD or a NPS that utilizes ABA therapy would help the Student access their educational curriculum in light of their disability in that they could provide a small class size and a special education program and supports tailored for students with autism. A NPS for students with autism or utilizes ABA therapy would allow the Student to gain access and derive educational benefit from their academic curriculum. The District presented no case at the DPH to defend its recommended special education program and services, or the D75 placement that the Student currently is in for Kindergarten. The record contains no evidence or testimony from the District that explains why the Student was recommended the current placement, special education program and related services in the 2023 IEP, or how the recommended special education program and supports would allow the Student to meaningfully benefit from their education and make even minimal progress in light of their disability. According to the Student’s Parent, the Student’s current placement lacks ABA therapy, but most importantly lacks necessary supports to teach a student who is severely autistic, like the Student. The DOE acknowledged that the Student requires a “very substantial level of support” due to the severity of ASD, yet only recommended her for a 6:1:1 class in a D75 Public School with a 1:1 health paraprofessional, who is not fulltime. This class size notably contains no supports other than 1 assistant to the teacher. As the 2023-24 school year is currently ongoing, I find that the hearing record and Parent’s credible testimony support a finding that the current special education program and placement are not appropriate for the Student for this current school year, and that the Parent is entitled to the requested relief for an order directing the CSE to reconvene and refer the Student to the CBST to place the Student in a NYSED NPS placement for students with autism or one that utilizes ABA therapy. Transportation
The IDEA further requires that a school district must provide transportation for a child with a disability “if that service is necessary for a disabled child ‘to benefit from special education,’ even if that child has no ambulatory impairment that directly causes a ‘unique need’ for some form of specialized transport.”[61] In addition, New York 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.”[62] The requested transportation must also be “reasonable when all of the facts are considered.”[63] In a guidance document, the State Education Department has indicated that the CSE should consider and document a student's mobility, behavior, communication, physical, and health needs when determining whether or not a student requires transportation as a related service, that the IEP “must include specific transportation recommendations to address each of the student's needs, as appropriate,” and that when determining a student’s special transportation needs, such as the need for door-to-door transportation, it must document them.[64] Other relevant considerations may include the student's age, ability to follow directions, ability to function without special transportation, the distance to be traveled, the nature of the area, and the availability of private or public assistance. [65]
The Parent testified at the DPH that they are requesting a 1:1 bus paraprofessional for the Student, as the Student throws tantrums when entering and exiting the school bus. The school bus currently has a bus matron, but the bus matron will not tend to the Student when the Student throws a tantrum or engages in maladaptive behaviors on the bus. The Parent testified that the bus matron will call the Parent to come retrieve the Student if they throw a tantrum and will not exit the bus. This results in the Parent having to enter the school bus themselves to send the Student to school or retrieve the Student. The Parent testified that the Student’s tantrums are a symptom of their ASD. In the 2023 IEP, the Student was recommended for special transportation, specifically transportation from the closest safe curb location to and from the recommended specialized school site.”[66] In light of the Student’s disability, which causes them to throw tantrums when being transported to and from school, I find the Parent’s request for a 1:1 bus paraprofessional to aid the Student when engaging in maladaptive behaviors to be reasonable. Based on the documentary evidence and Parent’s credible testimony, I find that the hearing record supports a finding that the Parent is entitled to the relief of a 1:1 bus paraprofessional to aid the Student when riding the bus.
BIP
As relief, the Parent seeks a BIP for the Student. At the DPH, the Parent testified that the Student was not recommended for a functional behavioral assessment as part of the DOE’s evaluations.[67] While the Parent stated that the Parent does not think that the Student is engaging in maladaptive behaviors in school, the Parent testified that the Student bit their paraprofessional in school when they tried to take them to the bathroom. The Student has a tendency to be aggressive towards others. The Parent also stated that the Student will bite and throw a tantrum if they do not get their way. If the Student hears loud music, they will hit themselves. The Parent believes that a BIP will help the Student learn to manage their behaviors better, as well as stop them from engaging in self-harming behaviors and hurting others. The Parent “tries to be routine at home” to follow what is being done at school. Having a BIP in school would aid the Student in transitioning positive behaviors from school to the home and vice versa.
The Student currently was not recommended for any “strategies, including positive behavioral interventions, supports, or other strategies to address behaviors that impede the student’s behavior or that of others,” or a behavior intervention plan by the CSE for the 2023-24 school year.[68] The Student’s IEP notes that the during the classroom observation, the Student is “usually more aggressive….”[69] The Student also “engages in self-directed behaviors such as walking away, hitting, biting, scratching or pulling toys off shelves.”[70] Under the “Social Development” section, the Student is noted to not be able to interact with peers or adults, share toys, and displays a low frustration tolerance.[71] The Student throws “tantrums by throwing, hitting, biting, or scratching [their] peers or adults.”[72] The Student will grab desired items or climb to retrieve them, is not able to transition from one activity to the next, is only able to put away toys when assisted.[73] The IEP also notes the Student’s Psychological Update the Student’s reported maladaptive behaviors, which is that the Student engages in compulsive behavior and requires oneto-one support to keep themselves safe and others safe when engaged in tantrum behaviors.[74] The IEP further states the Student’s behavior therapist reported that the Student “requires one to one support in order to communicate [their] wants, needs, and frustrations appropriately.” [75]
As the Parent testified, the Student’s maladaptive behaviors are a symptom of their ASD, which causes them to throw temper tantrums, self-harm, bite, and scratch. The Parent reported these maladaptive behaviors to the CSE, who also conferred with the Student’s private behavior specialist, yet failed to recommend a BIP or any behavior support strategies for the Student. This Student requires a BIP in order to gain access to their educational curriculum and meaningfully benefit from the special education program and services recommended for them in light of their disability. I find that the hearing record supports a finding that the Parent is entitled to the relief sought, a BIP, for the Student for the 2023-24 school year.
ORDER
Based on the above Findings, it is hereby:
1. ORDERED that, the DOE failed to provide the Student with a FAPE for the 2023-24 school year; and
2. FURTHER ORDERED that, the District shall convene the CSE to hold a meeting and refer this Student to the CBST within 30 days of this Order to:
a. Enroll the Student at a NYSED-approved NPS, specifically Blue Feather Elementary, and place the Student in a small class size with no more than 6 students, for the remainder of the 2023-24 school year, or b. Should the above placement in #2(a) of this Order fail to have a seat available for the Student, the CBST shall enroll the Student in a NYSED-approved NPS that utilizes ABA methodology, that can implement the Student’s special education program and related services, where the Student is in a small class size with no more than 6 students, for the remainder of the 2023-24 school year; or c. Should the CBST fail to locate a NYSED-approved NPS that utilizes ABA methodology, the CBST shall enroll the Student in a NYSED-approved NPS for students with Autism that can implement the Student’s special education program and related services, where the Student is in a small class size with no more than 6 students, for the remainder of the 2023-24 school year; and
3. FURTHER ORDERED, that the Student’s IEP shall be amended to recommend that the Student be provided with a BIP; and
4. FURTHER ORDERED that, the DOE shall provide or fund door-to-door special transportation for the Student to get to and from school, that includes a 1:1 bus paraprofessional, and transportation from the closest safe curb location to school.
SO ORDERED.
DATED: November 08, 2023
Impartial Hearing Officer
Melanie L. Bota, Esq.
DISTRICT EVIDENCE
PARENT EVIDENCE
A. Prior Written Notice 05/23/2023 4 pages
B. Psychological Update 04/19/2023 5 pages
C. Individualized Education Program 05/17/2023 32 pages
D. Due Process Complaint 09/13/2023 2 pages
E. [REDACTED] Psychosocial Evaluation 05/12/2022 4 pages
F. [REDACTED] Psychological Evaluation 10/19/2022 6 pages
G. [REDACTED] Speech & Language Evaluation 10/04/2022 4 pages
IHO EVIDENCE
I. Email Correspondence with District Representative 10/31/2023; IHO
[REDACTED] 11/01/2023
II. Prehearing Conference Transcript 08/16/2023 31
APPENDIX
[REDACTED] Information Term Used In FOFD [REDACTED] Student [REDACTED] Parent n/a Parent’s Counsel [REDACTED] District’s Representative 1 [REDACTED] District’s Representative 2
Footnotes
[1] Personally identifiable information is attached as Appendix A, “Redaction Identification Page,” to this decision and must be removed prior to public distribution.
[2] At the time that this decision was written, a transcript for the due process hearing conducted on November 1, 2023 was not available.
[3] See Parent Exhibit D, at 2.
[4] See IHO Exhibit I.
[5] See Parent Exhibit D, at 2.
[6] On October 31, 2023, I received a notice of appearance for District Representative 2 and emailed an Outlook Calendar Invitation . Prior to the start of the DPH, I emailed District Representative 2 to inquire as to whether they would be participating in the DPH. I received no response. See IHO Exhibit I.
[7] Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982); Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005).
[8] See 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2); Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 (S.D.N.Y. 2007).
[9] See 20 U.S.C. § 1415(f)(3)(E)(i).
[10] Rowley, 458 U.S. at 203 (emphasis added).
[11] See Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 (5d Cir. 2000); Fisher v. Stafford Township Bd. of Educ., 289 Fed. App'x 520, 524-25, 2008 WL 3523992 (3d Cir. Aug. 14, 2008); Couture v. Bd. of Educ., 535 F.3d 1243 (10th Cir. 2008); Neosho R-V Sch. Dist. v. Clark, 315 F.3d 1022, 1027 n.3 (8th Cir. 2003).
[12] A.P., 370 Fed. App'x at 205; Van Duyn, 502 F.3d at 822; Catalan v. Dist. of Columbia, 478 F. Supp. 2d 73 (D.D.C. 2007).
[13] Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 454 (2d Cir. 2015).
[14] Florence County Sch. Dist. Four v. Carter by & Through Carter, 510 U.S. 7, 16 (1993).
[16] Doe v. East Lyme, 790 F.3d at 454.
[17] NYS Educ. Law § 4404(1)(c).
[18] See 20 U.S.C. §1415(i)(2)(C)(iii); see also Walczak v. Florida Union Free Sch. Dist., 142 F.3rd 119 (2d Cir. 1998).
[19] M.W. ex rel. S.W. v. New York City Dept. of Educ., 725 F.3d 131, 135 (2d Cir. 2013); A.M. ex rel. E.H. v. New York City Dept. of Educ., 845 F.3d 523, 535 (2d Cir. 2017).
[20] Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).
[21] Endrew F. v. Douglas County School District, 137 S. Ct. at 1002 (2017).
[22] See Adams v. Dist. of Columbia, 285 F. Supp. 3d 381, 393, 396-97 (D.D.C. 2018) [noting with approval the hearing officer's finding “that the directives of IDEA would be best effectuated by ordering an IEP review and revision, rather than prospective placement in a private school”]; see also Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *16 (E.D.N.Y. Oct. 30, 2008) [noting that “services found to be appropriate for a student during one school year are not necessarily appropriate for the student during a subsequent school year”]).
[23] See V.W. v. New York City Dep't of Educ., 2022 WL 3448096, at *7 (S.D.N.Y. Aug. 17, 2022) [acknowledging that "orders of prospective services are disfavored as a matter of law" and, in the matter at hand, indicating that "the CSE should have already convened for subsequent school years]; M.F. v. N. Syracuse Cent. Sch. Dist., 2019 WL 1432768, at *8 (N.D.N.Y. Mar. 29, 2019) [declining to speculate as to the likelihood that the district would offer the student a FAPE "in the future" and, therefore, denying prospective relief]; Eley v. Dist. of Columbia, 2012 WL 3656471, at *11 (D.D.C. Aug. 24, 2012) [noting that prospective placement is not an appropriate remedy until the IEP for the current school year has been completed and the parent challenges the IEP for the current school year]).
[24] See Connors v. Mills, 34 F.Supp.2d 795, 799, 804-06 (N.D.N.Y. Sept. 24, 1998) [noting a prospective placement would be appropriate where "both the school and the parent agree[d] that the child's unique needs require[d] placement in a private non-approved school and that there [we]re no approved schools that would be appropriate"].
[25] See e.g., Application of a Student with a Disability, Appeal No. 19-018.
[26] See Parent Exhibit D, at 2.
[27] Id.
[28] Id.
[29] Id.
[30] Id.
[31] Id.
[32] Id.
[33] See IHO Exhibit II, Transcript, at 9, August 16, 2023. At the Prehearing Conference, the Parent informed the IHO that they contacted the DOE after the IEP meeting.
[34] See id.
[35] See Parent Exhibit A, at 1. It should be noted that this documentation incorrectly states that the Student was recommended by the DOE for a 10-month program, as their 2023 IEP recommends a 12-month program.
[36] See id. at 2.
[37] See Parent Exhibit B.
[38] See id. at 1.
[39] Id.
[40] Id.
[41] Id. at 2.
[42] Id.
[43] Id.
[44] Id.
[45] See id. at 3.
[46] See id.
[47] See id.
[48] See id.
[49] Id.
[50] See id.
[51] Id. at 4.
[52] See Parent Exhibit C, at 32.
[53] See id. at 24 – 25.
[54] Id. at 10.
[55] Id.
[56] Id. at 2.
[57] Id.
[58] Id.
[59] Id. at 4
[60] See id.
[61] Donald B. by Christine B. v. Board of Sch. Commissioners of Mobile County, Ala., 117 F.3d 1371, 1374 (11th Cir 1997) (citations omitted).
[62] NYS Educ. Law §§ 4401(1); 4402(4)(a); see also NYS Educ. Law § 4401(2); 8 NYCRR § 200.1(ww).
[63] Alamo Heights Indep. Sch. Dist. v. State Bd. of Educ., 790 F.2d 1153, 1160 (5th Cir. 1986).
[64] “Special Transportation for Students with Disabilities,” VESID Mem. (Mar. 2005), available at http://www.p12.nysed.gov/specialed/publications/policy/specialtrans.pdf).
[65] See Donald B., 117 F.3d at 1375.
[66] See Parent Exhibit C, at 29.
[67] See also Parent Exhibit A, at 2.
[68] Parent Exhibit C at 10.
[69] Id. at 1.
[70] Id. at 3.
[71] See id. at 4.
[72] Id.
[73] See id.
[74] See id., at 6.
[75] Id. at 6.