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FINDINGS OF FACT AND DECISION
NAMES AND TITLES OF PERSONS WHO APPEARED
FEBRUARY 16, 2023
For the Student:
[REDACTED], ESQ., Attorney
For the Department of Education:
NONE
NAMES AND TITLES OF PERSONS WHO APPEARED
MARCH 15, 2023
For the Student:
KAITLYN BOECKEL, Paralegal
For the Department of Education:
[REDACTED], ESQ., Attorney
NAMES AND TITLES OF PERSONS WHO APPEARED
MARCH 30, 2023
For the Student:
[REDACTED], ESQ., Attorney
For the Department of Education:
[REDACTED], ESQ., Attorney
NAMES AND TITLES OF PERSONS WHO APPEARED
APRIL 27, 2023
For the Student:
[REDACTED], ESQ., Attorney
For the Department of Education:
[REDACTED], ESQ., District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
MAY 15, 2023
For the Student:
[REDACTED], ESQ., Attorney
[REDACTED], Parent Student
[REDACTED], Occupational Therapist
[REDACTED], Speech Director, [REDACTED]
For the Department of Education:
[REDACTED], ESQ., Attorney
[REDACTED], ESQ., District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
MAY 22, 2023
For the Student:
[REDACTED], ESQ., Attorney
[REDACTED], Parent Student
[REDACTED], Physical Therapist, [REDACTED]
[REDACTED][REDACTED], Special Education Teacher
For the Department of Education:
[REDACTED], ESQ., Attorney
This case was brought before me pursuant to appointment by the New York City Department of Education (DOE) under the Individual with Disabilities Education Act (IDEA), 20 United States Code §1415(f)(1). [REDACTED] ([REDACTED]) is a [REDACTED] -year-old student, whose parents [REDACTED] and([REDACTED], [REDACTED], parents, or parent) have brought the instant hearing, arguing that the DOE had failed to provide [REDACTED] a free appropriate public education (FAPE) for the 2022-2023 school year. Ex. A. The hearing convened on March 15, March 30, April 27, May 15, and May 22, 2023. A schedule for post-hearing submissions was established (later extended) and extensions of the decision compliance date were granted in accordance with regulations, resulting in a final compliance date of August 10, 2023.
DISTRICT AND PARENT POSITIONS
The due process complaint notice (DPCN) in this case, dated January 12, 2023, claimed that the district failed to provide [REDACTED] with a free appropriate public education (FAPE) for the 2022-2023 school year, claiming that the district had created an IEP for the school year with an inappropriate program recommendation. As relief, the parent requested the DOE to provide funding or reimbursement for home-based services for [REDACTED] including special education itinerant teacher (SEIT) services, occupational therapy and speech language therapy, all at an enhanced rate, and [REDACTED] at a rate no less than $300 per hour, as well as compensatory speech services and reimbursement for out-of-pocket expenses. Ex. A.
At hearing on February 16, 2023, there was no appearance by the district. The parent attorney made an opening statement, and documents were entered into evidence. Asked about the DPCN request for reimbursement for out-of-pocket expenses, the parent attorney stated that there were at this time none.
A hearing was scheduled for March 15, 2023 to give the district an opportunity to appear and make an opening statement articulating the district position. On March 15, 2023, a representative from the district appeared, stating that he had just been given the case and was not prepared to address the issues. Another date was scheduled for March 30, 2023, at which the district attorney stated the district would be going forward on Prong 1 of the criteria established in the Burlington-Carter series of cases and offered documents into evidence. Both parties indicated they would be calling witnesses.
At hearing on April 27, 2023, the IHO had indicated the day would be limited to the district case only. A different attorney appeared for the district, stating that he had only been given this matter the previous day, but would try to reach and put on witnesses. After he was unable to obtain any witness, he stated that he didn’t have any witnesses to present in this matter, and the DOE would rest on the documentary evidence. The district Representative was advised that after the parent witnesses, he could make a proffer for rebuttal that would be considered.
At hearing on May 15, 2023, the district representative initially waived a closing statement or written submission; when the parent attorney requested a written closing, the district Representative asked to submit a closing. On May 22, 2023, a schedule was established for submission of post-hearing submissions, and the district representative confirmed he would be submitting a closing statement. By email on June 8, 2023, the district’s attorney asked for an extension of time for submission of the closing statement; on June 9, 2023, he advised that the DOE would not be submitting a closing memo in this case.
FINDINGS OF FACT
[REDACTED] is a student who was classified as a preschool student with a disability; despite not attending school, she was recommending for a special class 12:1:2, as well as speech language therapy 4x30, occupational therapy 4x30, and physical therapy 3x30. Related services only and SEIT only were rejected as not addressing various goals. A requested review in October 2022 added an assistive technology device at home and at school. Exs. 1, C, G. [REDACTED] described [REDACTED]’s condition of Pontine Tegmental Cap Dysplasia. She doesn’t walk, talk, stand, or do anything compared to her sisters (she’s one of triplets), but it takes a long time, and she was getting better. She also has facial palsy and is hearing impaired. [REDACTED] stated that she would be hopeful that [REDACTED] will be able to stand on her own and walk on her own, as well as being able to talk and communicate.
When she was in early intervention, [REDACTED] was recommended for SEIT services at home; [REDACTED], a neurologist, also recommended [REDACTED] have services at home. In June 2022, she was recommended for a school program. [REDACTED], the district representative at the IEP meeting, stated that [REDACTED] could start off for one hour a day in a school, although that was never documented and [REDACTED] was not in agreement with it. [REDACTED] stated her concerns, particularly that [REDACTED] wouldn’t accomplish anything with just one hour a day, and also that she did not have a form of communication that was appropriate. When asked about the [REDACTED] physical therapy, [REDACTED] stated that that was “above her pay grade,” and that if the parent didn’t agree with the recommendation, she wouldn’t get an increase in the related services of occupational therapy and speech. Tr. 229-
258. [REDACTED][REDACTED], the child’s SEIT, was at the June 2022 IEP meeting, and testified that the IEP was not written up to the way the meeting was held. She recounted [REDACTED]’s mother as being very vocal about [REDACTED] not only the classroom, but the CPSE administrator was not listening. Tr. 188-226. [REDACTED] acknowledged that the goal would be for [REDACTED] to be in school in the future some time, but at present home-based services are where she should be. Tr. 229-258.
Special education itinerant teacher (SEIT) services were provided by [REDACTED][REDACTED], who had begun working with [REDACTED] when she was turning three years old. She was initially assigned to work as her SEIT for 15 hours a week. [REDACTED][REDACTED] described early work as being a very slow process, the child’s body flailing all over the place; she was very tactile and defensive, not touching anything. She stated that it took her about nine months to develop a relationship with the child, reading her body language and her understanding. In the 2021-2022 school year she began working with Play-Doh and sand, although it was a lot of very short period of time, as she had made very frequent breaks. Tr. 188-226; Ex. N.
In the 2022-2023 school year, she began working with [REDACTED] on pointing; first each morning, they did tactile exercises, pointing, making sure her body was aligned and focused for beginning work on matching and more difficult matching and the more difficult tasks. Focus and body control are worked on for at least one half-hour to 40 minutes. [REDACTED][REDACTED] described everything as a building block type of strategy, giving as example pointing leading to communication device. She described working on sorting, shapes, and colors, all with focus in mind. In communication, she is working with [REDACTED] on sign language, with the basic use of “I want” taking her hand to the communication device to demonstrate its use. She stated [REDACTED] has about 50 percent accuracy now, using first the hand-over-hand as a guide. Tr. 188-226. [REDACTED][REDACTED] is paid by the DOE, pursuant to pendency order at $125 per hour. She works with [REDACTED] for six hours a day, depending on if another therapist comes in and then she observes the therapy to bring it into her sessions. [REDACTED][REDACTED], who is state certified in special education and in regular education, works with [REDACTED] in all five domains, covering speech, occupational therapy, physical therapy, cognition, and feeding. She described the work she does with the occupational therapist [REDACTED] about following directions and using her hands appropriately and not flailing her hands, and with the physical therapist, working with [REDACTED]with her standing and using her body, assisting her with focusing while she is standing and using her upper and lower body together. In regard to feeding, unfortunately [REDACTED] is still drinking from the bottle but at this point they have her sitting up. Tr. 188-226; Ex. N. [REDACTED][REDACTED] stated that [REDACTED] still needs the home base. She gets sick very easily, and she’s not ready to be in a generalized setting as she doesn’t have the communication skills. It takes a long time to get to know her and her body language and wants; until she does better with the communication device she’s not ready. She stated that she thought
25 hours a week was appropriate for [REDACTED]; although she has been getting 20 hours of services, she has begun to really learn, and 25 hours would serve her well. She also indicated her support for a 12-month program, noting that each Monday they have to bring her back to Friday’s goal for the Friday level. With a three-week holiday, the child went back three months; in the summer, each week approached a month in terms of regression. She noted three to six weeks to redo skills, giving as example [REDACTED] sitting properly with feet straight down in front of her, taking pieces out of shape containers and putting them back without throwing them. Tr. 188-226. [REDACTED] also noted the importance of SEIT services at home for [REDACTED], noting that the child is difficult to understand and often needs a break; they can work with her on the math that will keep her in the chair. [REDACTED] stated she believed [REDACTED] was making progress and needed the home services and a 12-month year of services. She has seen her progress in the past. Tr. 229-258. [REDACTED]’s several related service providers testified about service with [REDACTED]. [REDACTED]testified via personal testimony and affidavit. [REDACTED] is a speech pathologist who is PROMPT certified and works as speech director at [REDACTED] in addition to her independent practice for which she charges $300 an hour. She has been working with [REDACTED] since the child was three months of age through early intervention services, and in the current school year beginning in September 2022. At the time, [REDACTED] didn’t have a reliable communication system. She described goals of sustaining the child’s attention and forming a way for her to communicate her needs and wants, which she described as a vocalization with specific intent. She did assessments for augmentative communication, working with Proloquo2Go and PECS. She has been working with [REDACTED] twice a week, working on language expansion and developing the form of communication. She stated that [REDACTED] received a communication device approximately six weeks to two months prior to her testimony in May 2023; working with the PECS system, she is migrating over to the Proloquo app on the iPad she received. When she began, she was at stage one, but was moving towards the next phase 2, “distance and persistence.” [REDACTED] stated that the lack of a communication device had hindered her progress. She recommended that [REDACTED] receive services 4 times weekly in 60 minutes sessions, with augmented communication sessions including training with the parents. She also noted that [REDACTED] had recently started vocalizing, needing work on oral motor concerns. She also recommended compensatory hours for [REDACTED] due to the absence of assistive technology during the school year, and she would be available to provide the compensatory services needed for the child. She described [REDACTED]’s progress as fair, noting that [REDACTED] would begin to get PROMPT therapy now that she is showing the ability to vocalize. Tr. 115-133; Ex. P.
In terms of speech therapy, [REDACTED] testified that the speech therapist is providing 3×30, paid by pendency. She also believes she requires speech services for 12 months of the year. [REDACTED] works on multiple things, from focus, using the device, matching, modeling, as well as feeding. She stated that she thought [REDACTED] is making progress with speech therapy. She confirmed that the district provided the device, and the child is ready for the device. The speech therapist does a lot of modeling the device for her, and some hand over hand, which are building blocks to get her to use the device on her own. Tr. 229-258. [REDACTED] stated that she had communication with the DOE about the communication device, which had been an ongoing source of discussion for almost two years. She was finally evaluated for assistive technology in October 2022; it took at least until December to receive a device, and while they were waiting for a device, the DOE did not provide any further services. It has taken longer for [REDACTED] to give her lunch and communicate without having a device, using only the picture exchange (PECS) program for months. [REDACTED] stated that she wanted compensatory hours because of the time the child did not have a device. Tr. 229-258; Ex. F. [REDACTED], an occupational therapist, testified that she works primarily with children with neurological and physical disabilities, noting specialty training in neurodevelopmental treatment and sensory integration. She described working with [REDACTED] in the 2022-2023 school year from July 1, 2022, on her daily living activities, specifically feeding, fine motor skills, targeting her reach, upper body movements, and calming her down to sustain focus, and sitting independently. She described working with a team that included the parent, the speech therapist, and the physical therapist, noting that the case was very interdependent, noting the need of the physical therapist for postural stability and the communication device for communication. She stated that [REDACTED]’s biggest issues were stability of her body, and visual limitations. [REDACTED] described assessing the child, and gave examples of the work, including strategies such as deep pressure, brushing, oral stimulation, adapted spoons, wrist strengthening, and holding her bottle. She noted getting [REDACTED]’s eyes to look down so she can work on fine motor activity, working on grasping and pointing. She also described using an adaptive chair as needed to provide stability, working on extensive balancing, weight shifting, and awareness. [REDACTED] sees [REDACTED] for what she termed as 3×45 through pendency, providing an additional 15 minutes using previously awarded compensatory time. Her recommendation for [REDACTED] was services 4x60, on a 12-month basis, noting the help provided by the longer sessions due to the preparation needed before she can focus her eyes, extend her trunk, get into position and calm the extraneous movements caused by her neurological disorder. [REDACTED] noted that with the hour she was giving [REDACTED] in the current year the sessions were going very well. She stated that [REDACTED] was at an 18-month level, with a few skills that might be between 18 and 22 months. She noted progress, stating the child was stubborn and strong-willed, and determined to learn and to play. She is sitting better, not falling over as much, reaching better, and not as frustrated and therefore able to persist a little bit more, which [REDACTED] said was huge for her, because she had been giving up very easily before. She will persist in challenging tasks with redirection and prompting. She also noted progress in skills, in matching, grasping, and other emerging skills. [REDACTED] stated that was paid through pendency, at $200 per hour, a private rate that is comparable to rates charged by others in the city. Tr. 76-109. [REDACTED] testified that [REDACTED] had occupational therapy with [REDACTED] since early intervention, and she agreed with the therapist’s request for an increase in the time. She observed [REDACTED] trying to get [REDACTED] to focus at first, with strong support, and working a lot on focusing and releasing and writing. She stated that she had noticed progress, and again thought 12 months would be appropriate, as would longer sessions, noting that it takes [REDACTED] time to warm up and get focused when after working on relaxing her body, then she can actually do whatever is planned for the remaining 45 minutes. Tr. 229-258. [REDACTED]. a physical therapist, explained that he had state certification, as well as an additional three certifications from [REDACTED] to provide the [REDACTED] approach. He described the CME as recommended for students diagnosed with developmental delay, low muscle tone, cerebral palsy, and chromosomal deficiency. The three levels include anatomy, physiology, and how to gain head and trunk control, using light assistance to enable independence. The second level is more about the approach to gain head control, and trunk control, and the third level is a high level of exercise regarding gross motor skills, including transitions, standing, walking. [REDACTED]works for a private industry called [REDACTED], LLC.
He has been working with [REDACTED] since she was in early intervention,. He stated that according to his evaluations, she was recommended for and he provides daily service five times weekly in 60-minute sessions. He described working with [REDACTED] getting her to sit by herself in an upright position, focusing on getting neural connections to the brain. The connection is important for head and trunk control, and to establish gross motor skills and improve her protective sensory actions moving from one position to another position. Tr. 150-
181. [REDACTED] stated that [REDACTED] is making progress with the [REDACTED] and endorsed the 12 months of services for that as well. When [REDACTED] was sick, she didn’t receive the service, and regression was observed. Tr. 229-258. [REDACTED] stated that the five hours weekly is appropriate, and needed for a 12-month program. The current rate at the office is $350 an hour; at home is $400 per hour. Asked about the due process request for $300 an hour, and his own affidavit signed December 29, 2022 indicating $300 per hour for in-office sessions, he explained that the rate has gone up in January, according to the rate nationwide and experience. The rate was increased by $50 in the office, and to $400 for at-home. [REDACTED] stated that he is a contract person, and gets paid $380 an hour. He explained stated that in September services were done in the office, but began with [REDACTED] at home on January 12, 2023, acknowledging that the rate on the invoices was $300 per hour. Tr. 150-181; Ex. J.
CONCLUSIONS OF LAW
The decision in this case rests on a determination of the three-pronged test set forth by the United States Supreme Court in the Burlington case, which provided that a board of education may be required to pay for educational services obtained for a child by the child’s 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. School Committee of the Town of Burlington v. Dept. of Educ., Massachusetts, 471 U.S. 359 (1985); Florence County Sch. Dist. Four v. Carter, 510 US 7 (1993). ISSUE 1 - Appropriateness of School District Program
A central purpose of the Individuals with Disabilities Education Act (IDEA) is to ensure that students with disabilities have available to them a free appropriate public education (FAPE). 20 U.S.C. § 1400(d)(1)(A); see Schaffer v. Weast, 126 S. Ct. 528 (2005); Bd. of Educ. v. Rowley, 458 U.S.176 (1982); Frank G. v. Bd. of Educ., 459 F.3d 356 (2d Cir. 2006). A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP, which is reasonably calculated to enable the student to receive educational benefit. See Bd. of Educ. v. Rowley, 458 U.S.176 (1982); 20 U.S.C. § 1401(9)(D); 34 C.F.R. § 300.17; see 20 U.S.C. § 1414(d); 34 C.F.R. § 300.22. The student's recommended program must also be provided in the least restrictive environment (LRE). 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. § 300.114(a)(2); 8 NYCRR 200.6(a)(1).
In this case I find that the DOE has failed to sustain its burden. In so ruling, I note the district representative did not present any witnesses for testimony and stated that the district rested on its documents, which in their entirety did not provide sufficient evidence that the DOE had provided the child with a FAPE. Moreover, the district did not present a closing argument nor a post-hearing brief, as was scheduled.
Under the circumstances and for the reasons noted above, I find the district failed to provide FAPE to [REDACTED]. ISSUE 2 - Appropriateness of Parent Placement
Under the second prong of Burlington, the parents bear the burden of proving the appropriateness of the services sought for [REDACTED] . M.S. v. Board of Education of the City of Yonkers, 231 F.3d 96, 104 (2d Cir. 2000); Application of a Child with a Disability, Appeal No. 99-51; Application of a Child with a Disability, Appeal No. 94-29; Application of a Child with a Disability, Appeal No. 95-57. In order to meet that burden, the parents must show that the services provided offered an educational program designed to meet [REDACTED]’s special education needs. School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); Application of a Child with a Disability, Appeal No. 99-51; Application of a Child with a Disability, Appeal No. 98-76; Application of a Child with a Disability, Appeal No. 94-29. A unilateral placement is only appropriate if it provides education instruction specifically designed to meet the unique needs of a handicapped child. Gagliardo v. Arlington Central School District, 489 F.3d 105 (2d Cir. 2007).
I find that the parents have sustained their burden of demonstrating the appropriateness of the services in the home for [REDACTED]. I credit the description of the program from the different providers, with the emphasis on their work as a team. I credit testimony of the SEIT describing her work on focus and body control for [REDACTED], noting her description of the building blocks moving [REDACTED] from one skill to the next stage, the sample being pointing to the communication device. I note the work she described with the occupational therapist and physical therapist concerning [REDACTED] following directions and standing. I also credit the work described by the related service providers, noting the occupational therapist work with [REDACTED] on activities of daily living including feeding and fine motor skills, and various strategies she used such as pressure and oral stimulation and an adaptive chair for the child. The speech therapist also described work on moving the child from sign language to PECS to the Proloquo app, addressing the child’s focus with modeling, and also working on feeding while noting her progress in advancing to stage 2. Also significant was the physical therapist’s use of the [REDACTED] methodology, working with [REDACTED] to sit by herself in an upright position and getting neural connections to the brain for head and trunk control, for gross motor skills, and for movement from one position to another. I credit [REDACTED]’s attestation to [REDACTED]’s progress during the year in all areas, noting [REDACTED]’s description of progress in skills and increased body control and persistence in challenging tasks with support where before she had been giving up very easily.
For the reasons noted above, I find that the home-based SEIT, physical therapy, occupational therapy, and speech language therapy, as provided through pendency during much of the school year, provided a program designed to meet [REDACTED]’s special education needs. As for the amounts, I find that the child was entitled to the additional time requested by the parent, which was clearly appropriate for her needs.[1] I expressly credit the testimony of [REDACTED] and Ms. [REDACTED][REDACTED], as well as [REDACTED], about the time it takes for [REDACTED] to learn, noting the extra 15 minutes that had been used with great effect in occupational therapy for [REDACTED]’s benefit, and the testimony from the SEIT about how recent advances have seen growth in [REDACTED] enabling her to learn. In both cases, the extra time requested above what was provided during the year, under pendency (occupational therapy at 4x60, SEIT at 5x50) has been sustained and without dispute. The rates request for SEIT and occupational therapy are easily justified by undisputed testimony concerning market rate. [REDACTED] also made a case for increased hours for [REDACTED]’s speech services, given the severity of the child’s delays and the work needed with the assistive technology she has now received, also at her undisputed market rate. Similarly, the [REDACTED] delivered 5 hours weekly is also justified, although I cannot find the claim for more than $300 per hour for the year, both in the office and at home, an increase in the rate stated in his affidavit and without prior notice before his testimony, to be warranted. Finally, I note the request that services should be provided on a 12-month basis and given that even the discredited IEPs recommended d12 month, extended school year is also approved.
For the reasons noted above, I find that the home program of services (SEIT, physical therapy, occupational therapy, and speech language therapy) as described above provides a program for [REDACTED] designed to meet her special education needs. ISSUE 3 - Equitable Considerations
The third prong of the Burlington decision requires a balancing of the equities in determining whether reimbursement should be awarded. The IDEA provides that an award of tuition reimbursement may be reduced or denied if notwithstanding their being advised that they should do so, parents neither inform the CSE of their disagreement with its proposed placement and their intent to place their child in a private school at public expense at the most recent CSE meeting prior to their removal of the child from public school, nor provide the school district with written notice of such information ten business days before such removal. 20 U.S.C. 1412(a)(10)(C)(iii).
Equities require analysis beyond the mere filing of a 10-day notice. Factors relevant to equitable considerations include whether the withdrawal of the student from public school was justified. The 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); see also Frank G., 459 F.3d 356 (2nd Cir. 2006).
There was no evidence that the parents obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA. C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826 (2nd Cir. 2014). The parent has also requested direct funding to the providers, and the parent’s tax forms confirmed that she didn’t have the means to pay the services. Under the circumstances, direct funding in this case is warranted.
Request for compensatory services
The due process notice requested compensatory sessions of speech language therapy to make up for the months [REDACTED] was without an assistive technology device. The device was recommended in the October 24, 2022 IEP meeting, but not provided for the child’s benefit for some weeks. There was some discrepancy between the parent’s testimony about waiting just until December to receive a device, and the speech therapist’s testimony that the device had only been received six weeks to two months before her testimony in May 2023. In the parent’s brief, it was acknowledged that the child received speech language services during the year, requesting an award of 15 compensatory hours based on the assumption that the speech therapist would have been working half of each speech session on the device if you been received in a timely fashion. I credit the parent’s argument that a compensatory award should aim to place the student in the position he or she would have been in but for the denial of FAPE, and noting the lack of dispute to the request, compensatory services will be awarded for the full 15 hours requested.
ORDER:
1. The DOE shall provide and pay for the following services for [REDACTED] for the 2022-2023 school year:
a. SEIT services 20 hours weekly at market rate not less than under $125 per hour, b. occupational therapy 45 minutes 3 times weekly at market rate not less than $200 per hour, c. speech language therapy 2 hours weekly at market rate not less than $300 per hour, and d. [REDACTED] 5 hours weekly at market rate and not less than $300 per hour.
2. The student shall be entitled to the following services provided and funded by the
For the Department of Education:
a. SEIT services 25 hours weekly at market rate not less than $125 per hour
b. occupational therapy 4 hours weekly at market rate not less than $200 per hour
c. speech language therapy 4 hours weekly at market rate and not less than $300
per hour, and
d. [REDACTED] 5 hours weekly at market rate and not less than $300 per hour.
3. Payment for SEIT and related services for the 2022-2023 school year shall be limited to services that were provided to the child during the school year.
4. All SEIT and related services for [REDACTED] shall be provided on a 12-month basis.
5. The DOE shall establish a bank of 15 hours of compensatory speech language therapy for [REDACTED], to be provided by a qualified speech therapist chosen by the parent at market rate not less than $300 per hour.
IT IS SO ORDERED.
Dated: July 20, 2023
Nancy Lederman
NANCY M. LEDERMAN
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 proceedings 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.
EXHIBITS
DEPARTMENT OF EDUCATION EXHIBITS
1. IEP, 6/23/22, 25 pages DOE
2. LRE, least restrictive environnement checklist, 6/22/22 5 pages DOE
3. Prior Written Notice, 6/22/22, 3 pages DOE
PARENT EXHIBITS
A. Due process complaint, 1/12/23, 25 pages
B. Ten-day notice, 6/16/22, 4 pages
C. IEP, 6/23/22, 17 pages
D. Parent letter, 7/15/22, 3 pages
E. Letter from Neurologist, 6/24/22, 1 page
F. Assistive technology evaluation, 10/18/22, 12 pages
G. IEP, 10/24/22, 19 pages
H. Parent consent, 10/25/22 1 page
I. Prior Written Notice, 10/24/22, 3 pages
J. Affidavit of physical therapist, 12/29/22, 2 pages
K. [REDACTED] progress report, 10/30/22, 2 pages
L. Session notes from [REDACTED] physical therapy, various dates 61 pages
M. Invoice for [REDACTED], various dates 3 pages
N. Resume of SEIT, 2022 2 pages
O. Progress report and goals from the SEIT, 4/4/22, 5 pages
P. Affidavit, speech-language therapist, 12/22/22, 2 pages
Q. Speech-language progress report, 12/1/22, 2 pages
R. Parent's tax forms, 2021 4 pages
S. Closing Brief, [REDACTED], 6/8/23 8 pages
Footnotes
[1] In that regard I note that the district had elected to rest on its documents, evidence I discount in part, noting IEPs which provided no explanation or excuse for the limited 30-minute sessions noted for [REDACTED]’s recommended services, and the inexplicable refusal to grant either SEIT only or related services only to the preschool child.