New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 596442 – NYC: 245964

FINDINGS OF FACT AND DECISION

NAMES AND TITLES OF PERSONS WHO APPEARED

March 20, 2023

For the Student:

[REDACTED] [REDACTED], Esq.

For the Department of Education:

[REDACTED] [REDACTED], Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

April 24, 2023

For the Student:

[REDACTED] [REDACTED], Esq.

For the Department of Education:

[REDACTED] [REDACTED], Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

May 5, 2023

For the Student:

[REDACTED] [REDACTED], Esq.

[REDACTED] [REDACTED], Parent Student

[REDACTED] [REDACTED], Center Director, [REDACTED]

For the Department of Education:

[REDACTED] [REDACTED], Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

May 9, 2023

For the Student:

[REDACTED] [REDACTED], Esq.

For the Department of Education:

[REDACTED] [REDACTED], Esq.

INTRODUCTION AND PROCEDURAL HISTORY

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parent’s Due Process Complaint (“DPC") filed on or about February 15, 2023. Ex. A. 1 On February 15, 2023, I was appointed by the New York City Department of Education to hear this matter. Parent alleges that the Department of Education (the “Department”) failed to provide [REDACTED] with a free appropriate public education (“FAPE”) for the 2020-2021, 2021-2022 and 2022-2023 school years^[2] and seeks compensatory education for [REDACTED] in the form of 921 hours of 1:^[1] tutoring to be provided by the [REDACTED] (“[REDACTED]”), the costs of diagnostic testing performed by [REDACTED], and Metrocards to travel to and from [REDACTED] to access the tutoring. Parent also seeks an order that the Department reconvene an IEP meeting to consider an independent education evaluation (“IEE”) of [REDACTED]. Ex. A.

I conducted a prehearing conference on March 20, 2023. Counsel` appeared on behalf of [REDACTED]’s parent and on behalf of the Department. Counsel confirmed that [REDACTED]’s parent was seeking compensatory education, and evidentiary issues were discussed with respect to such a request for relief. The hearing was scheduled for April 24.

On April 24, additional evidentiary issues were discussed. The Department waived its opening statement. Parent’s counsel presented an opening statement. Parent’s exhibits A through J were admitted in evidence. The hearing was scheduled for May 5, 8 and 9. On May 5, Department exhibits 4 through 8 and 10 were admitted in evidence, and the Department rested its case. [REDACTED]’s mother and the director of [REDACTED] testified, and Parent’s exhibit K was admitted in evidence. The May 8 hearing date was cancelled, and the hearing was completed on May 9 with the parties’ closing statements. The Department declined to propose a basis or rationale, should compensatory services be awarded, to reduce the amount of compensatory services awarded or otherwise suggest a number of compensatory services hours to be awarded. Tr. 149.

The record closed on May 16 upon the Hearing Officer receipt and review of the transcript of the final day of the proceedings.

Counsel requested an extension of the compliance date, and a written Order of Extension was issued on March 20, 2023. The reasons for granting the extension are set forth in the Order.

JURISDICTION

The due process hearing was held, and a decision in this matter is now rendered pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”), 20 U.S.C. §§ 1400 et seq., and its implementing regulations, 34 C.F.R. Part 300, and New York State Education Law § 4404, and its implementing regulations, 8 N.Y.C.R.R. Part 200. [REDACTED]’s parent consented to the conduct of the hearing by videoconference and the transmission of this decision by email.

ISSUES

[REDACTED]’s parent requests compensatory education, associated fees with respect to the compensatory services, Metrocards to travel to and from the compensatory services provider, and the convening of a CSE meeting. At the hearing, the Department did not defend the special education programs that it offered to [REDACTED] for the 2020-2021, 2021-2022 and 2022-2023 school years. The issues to be resolved are:

1. Is [REDACTED] entitled to compensatory education? And, if so, what compensatory education?

2. If [REDACTED] is entitled to compensatory education, is he also entitled to associated fees and the costs of traveling to and from the services’ provider via public transportation?

3. Should the CSE be ordered to convene to consider a 2019 IEE?

FINDINGS OF FACT

1. [REDACTED] is a [REDACTED]-year-old young man who is eligible for special education and services under the IDEA and whose disability, for the purposes of the IDEA, is classified as speech or language impairment. Ex. B at 1.

2. [REDACTED] is a [REDACTED] grade student at [REDACTED] [REDACTED], a Department general education school. Tr. 66-67.

3. From an early age, [REDACTED] struggled with receptive and expressive language. Ex. F at 3.

4. The Department evaluated [REDACTED] as a preschool student and found him eligible to receive special education and services; but [REDACTED] did not consistently receive the services recommended in the preschool IEP. Ex. F at 3-4.

5. [REDACTED] attended ICT classes at community schools for elementary and middle schools. Exs. E, F, K at ⁋⁋ 27, 31-32.

6. [REDACTED] struggled with academics in elementary school and middle school. [REDACTED]’s mother tried to help with [REDACTED]’s academics, but she stated that she did not have the skills to do so. Tr. 69-70; Ex. F at 4; K at ⁋⁋ 26, 28, 31-32.

7. [REDACTED] first received tutoring at [REDACTED] in 2014 when he was in first grade. Tr. 103, 107. At that time, he was unable to read and had difficulties with letter recognition and formation, phonics and, obviously, comprehension, was unable to do basic single-digit addition, his writing was “unintelligible,” and he could not spell any words. Tr. 104-106, 129.

8. [REDACTED] is a “provider of supplemental instruction in basic academic skills, reading, phonics, writing, math study skills, exam prep, and subject tutoring for students in kindergarten through 12th grade.” Tr. 75. It employs certified general and special education teachers to work with students. Tr. 75, 121.

9. [REDACTED] successfully remediated [REDACTED]’s reading “to the point where he was able to read” and he was functioning on grade level; he left [REDACTED] and “did okay for a while, and then began to struggle again.” Tr. 104, 131.

10. [REDACTED] returned to [REDACTED] in the later elementary grades for another “stint” of tutoring and then again as a middle school student, when, through tutoring—which commenced when he was in seventh grade and extended through November 2022—he made progress and attained middle school grade equivalency levels, which had been the goal of that period of tutoring. Tr. 104, 113-114, 132-133.

11. [REDACTED] attended, cooperated, and worked hard during his time periods of tutoring at [REDACTED]. Tr. 113.

12. [REDACTED]’s mother secured an IEE for [REDACTED]. The IEE was a

“Comprehensive Neurodevelopmental Evaluation” conducted in the fall of 2019, when [REDACTED] was in seventh grade. Ex. F. 13. On the WISC-V, [REDACTED] attained the following index scores: verbal comprehension, 81; visual spatial, 100; fluid reasoning, 79; working memory, 85; and processing speed, 100. The evaluators did not present a full scale score because, due to the significant scatter among the index scores, a full scale score would not be “an accurate representation of [his] intellectual reasoning skills.” Ex. F at 47. 14. On the WJ-4, [REDACTED], as a seventh grade student, attained the following gradeequivalent cluster scores: basic reading skills, 4.6; broad math, 2.9; broad written language, 4.7, written expression, 5.3; academic skills, 4.0; and academic fluency, 4.4. 15. Testing utilizing the CELF-5 revealed that [REDACTED]’s receptive language was in the third percentile and his expressive language was in the fifth percentile. Ex. F at 44. 16. The evaluators made the following diagnoses: [REDACTED]; [REDACTED], [REDACTED], [REDACTED], and [REDACTED]. Ex. F at 9, 42-43. 17. The evaluators opined that [REDACTED]’s public school program did not address his “complex learning challenges” and that he needed a placement that, among other things, specialized in teaching children with language-based learning disabilities and provided individualized instruction in small classes. Ex. F at 3, 44. The evaluators also recommended speech and occupational therapies and specialized reading and writing instruction and services, and they described in detail numerous strategies, interventions, modifications, and accommodations for teaching and supporting [REDACTED] at school and at home. Ex. F 18. The CSE convened on March 3, 2020 to develop an IEP for [REDACTED], who was a seventh grade student at the time. Exs. 4 at 2, E. The IEE was available to and utilized by the CSE in developing an IEP for [REDACTED]. Ex. 4 at 2. 19. This IEP includes, among other things, the following information about [REDACTED]: a. School-based assessments revealed the following grade equivalent scores for [REDACTED]: reading at a third grade level (with vocabulary at a fourth grade level, literature comprehension at a fourth grade level, and comprehension of informational texts at a second grade level) and math at third grade level (Ex. E at 1); b. [REDACTED] “adhere[d] to school rules and follow[ed] procedures” (Ex. E at 7) c. [REDACTED]’s mother expressed her concerns about [REDACTED]’s academic progress (Ex. E at 4); d. The CSE recommended that [REDACTED] continue to attend an ICT class for ELA, math, social studies and science and receive the related services of speech-language therapy and counseling without considering the recommendations included in the IEE (Ex. E at 21; K at ⁋ 27). 20. The CSE convened on March 2, 2021 to develop an IEP for [REDACTED]. Ex. 5 at 2, D.

This IEP includes, among other things, the following information about [REDACTED], an eighth grade student at the time: a. On assessments conducted in February 2021, [REDACTED] attained an overall reading grade equivalent score of second grade (vocabulary – first grade and comprehension – third grade) and an overall math grade equivalent score of second grade (Ex. D at 1-2, 24); b. The above results “indicate[d] that he declined in both ELA and Math standards” and notes that “this could be due to testing anxiety” (Ex. D at 2); c. The IEP notes that [REDACTED] “would benefit from intensive intervention focused on skills and concepts related to quantitative reasoning and representation. Instruction that connects understanding of algebraic representation, computation, and problem solving skills will strengthen [REDACTED]’s math abilities across domains” (Ex. D at 4); d. [REDACTED] was able to write “comprehensible and complete sentences” but “capitalization [was] inconsistent” (Ex. D at 4); e. The IEP also notes that [REDACTED] is a “very kind and calm student” who is “responsible,” “attends class regularly, participates in class discussions, and submits all assignments,” and is on time for class (Ex. D at 5); f. The CSE recommended that [REDACTED] attend and ICT class for ELA, math, and social studies and receive the related services of speech-language therapy and counseling (Ex. D at 19-20). 21. The CSE convened on January 27, 2022 to develop an IEP for [REDACTED]. Exs. 6 at 2, C. This IEP includes, among other things, the following information: a. [REDACTED]’s reading comprehension is on a sixth grade level and math is on a sixth grade level (Ex. C at 2, 21); b. [REDACTED] arrives on time for class and attends classes on a regular basis; he completes classwork and other assignments in a timely manner but “would benefit from extended time to process the content material” (Ex. C at 3); c. [REDACTED] uses proper punctuation and grammar; to write a complex sentence, he needs the support of the special education teacher (Ex. C at 3); d. [REDACTED]’s mother expressed her concerns about [REDACTED]’s progress in all areas (Ex. C at 4); e. The CSE recommended that [REDACTED] attend and ICT class for ELA, math, social studies and science and receive the related services of speech-language therapy and counseling (Ex. C at 15). 22. [REDACTED] assessed [REDACTED] in November 2022. Tr. 49-50, 76; Ex. H. The assessments were administered by a certified teacher with training in the administration of the assessments that were administered. Tr. 120. 23. At the time of the assessment, [REDACTED] was “finishing up some of the [compensatory] hours that he already had” from a prior decision. Tr. 55-56; see also Tr. 111. 24. As a tenth grade student, the [REDACTED] assessment results indicated that [REDACTED] was functioning as follows (see Exs. H, J; Tr. 79-91): a. On the Slosson Visual-Motor Performance Test: in the below average range; b. On the Slosson Oral Reading Test: well below grade level, having difficulties reading the words on the seventh grade word list, indicating that he has significant difficulties with decoding and vocabulary which would interfere with his reading comprehension and his classroom functioning; c. On an assessment of reading fluency and comprehension (Burns and Roe Informal Reading Inventory), [REDACTED] performed “poorly” on a fifth grade and sixth grade reading passages; on the seventh grade passage he managed only one correct vocabulary item; d. On a writing assessment, when asked to write an essay on a particular topic, [REDACTED] was able to write only three sentences; e. In general, the above assessments indicated [REDACTED] was reading independently at a third grade level; at an instructional functional level of approximately fourth grade; and unable to “successfully complete” fifth grade level work; f. On the Star Reading assessment, which consists of multiple choice questions, [REDACTED] attained a grade equivalent score of 6.2, indicating that [REDACTED] “is better able to recognize a right answer if it’s provided” to him; g. On the Star Math assessment, [REDACTED] attained a grade equivalent score of 4.6; h. On the Huntington Math Placement assessment, [REDACTED] did not demonstrate mastery of any math skills other than addition and subtraction. 25. [REDACTED] [REDACTED], [REDACTED]’s Center Director who is a certified teacher with 21 years of experience at [REDACTED], opined that the above testing indicates that [REDACTED]’s independent reading level is third grade; shows that there are “gaps” in [REDACTED]’s decoding, “understanding how to think about questions,” vocabulary, and writing; shows that [REDACTED] needs remediation in language mechanics, capitalization, punctuation, usage, spelling and essay structure; “suggests” that [REDACTED] needs “extensive remediation in math, starting with arithmetic.” Tr. 92-93. 26. Based upon the [REDACTED]’s performance on the assessments and her experience at [REDACTED] working with students in need of remediation, Ms. [REDACTED] opined that [REDACTED] needed 921 hours of 1:1 tutoring to build [REDACTED]’s academic skills to a tenth grade level. Tr. 93-94; see also Ex. I. 27. Ms. [REDACTED] testified in detail how she computed the 921 hours based upon the curricular components and “splinter skills” that [REDACTED] needed to work on (as revealed by the assessments) and the number of hours of teaching required to address and complete each curricular component and “splinter skill;” in the context of this testimony, she also described in detail how [REDACTED] instructors would target and work with [REDACTED] on a number of the curricular components and “splinter skills.” Tr. 95-102; see also 126-127. 28. Ms. [REDACTED] explained that [REDACTED] has experience in bringing students with skill deficits comparable to [REDACTED]’s up to grade-level achievement. Tr. 102-103. 29. Ms. [REDACTED] opined that the tutoring that [REDACTED] had previously provided to [REDACTED] did “stick” with him, as demonstrated by the November 2022 Star Assessment reading grade level of 6.2, that now was the time for [REDACTED] to advance to high school grade levels, and that [REDACTED] would not make progress to high school levels without the intervention of tutoring. Tr. 104. 30. Similarly, with math, [REDACTED] needed tutoring to develop his calculation skills and understanding of fractions and decimals “so that he can understand the higher math to a level that allows him to get” high school credits and a diploma. Tr. 105-106. 31. With writing, [REDACTED] needed tutoring to learn to expand his sentences to paragraphs. Tr. 106. 32. [REDACTED] charges $110.00 per hour for tutoring; and there is a registration fee of $100.00 and an assessment fee of $295.00. Tr. 102. 33. [REDACTED] has not received tutoring at [REDACTED] since fall of 2022. Tr. 111. 34. If [REDACTED] were to attend tutoring for ten hours per week, he would complete the 921 hours of services within two years. Tr. 125. 35. The CSE convened on January 20, 2023 to develop an IEP for [REDACTED]. Ex. B. This IEP includes, among other things, the following information: a. [REDACTED]’s reading comprehension is on a fifth grade level and math is on a sixth grade level (Ex. B at 2, 21); b. [REDACTED] arrives on time for class, attends classes on a regular basis, comes to class prepared and is respectful of others (Ex. B at 2); c. [REDACTED] is easily distracted, and his teachers prompt and redirect him to return to task (Ex. B at 2, 5); d. [REDACTED] can write a complex sentence but struggles to use proper punctuation and grammar (Ex. B at 3); e. In order to be on track for graduation in June 2025, [REDACTED] must take and pass the ELA, Global History and American History Regents examinations (Ex. B at 7); and f. The CSE recommended that [REDACTED] continue to attend an ICT class for ELA, math, social studies and science and receive the related services of speech-language therapy and counseling (Ex. B at 15).

CONCLUSIONS OF LAW

The central purposes of the IDEA are to ensure: (1) that students with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living and (2) that the rights of students with disabilities and their parents are protected. 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 U.S. 49, 51 (2005); Board of Education v. Rowley, 458 U.S. 176, 179-181 (1982). The first step in the inquiry is to determine whether the school district offered a free appropriate public education to the student. See, e.g., Application of a Child with a Disability, Appeal No. 07-008; Application of a Child with a Disability, Appeal No. 06-121.

A free appropriate public education includes special education and related services designed to meet the student’s individual needs, provided in conformity with a written IEP. See 20 U.S.C. §1401(9); 20 U.S.C. §1414(d). A school district offers a student a free appropriate public education when (1) it complies with the procedural requirements of the IDEA and (2) the IEP developed by the district is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 137

S. Ct. 988, 999 (2017); see also Rowley, 458 U.S. at 207; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 (2d Cir. 2014); R.E. v. New York City Dep’t of Educ., 694 F.3d 167, 189-90 (2d Cir. 2012). A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” Rowley, 458 U.S. at 203. The school district also must ensure that “[t]o the maximum extent appropriate, children with disabilities are educated with children who are not disabled” that is, in the student’s least restrictive environment. 20 U.S.C. § 1412(a)(5)(A); 8 NYCRR 200.1(cc), 200.6(a)(1); see M.W. ex rel. S.W. v. New York City Dep’t of Educ., 725 F.3d 131,143 (2d Cir. 2013).

The particular educational needs of a student with a disability and the services required to meet the needs must be set forth in a written IEP. Honig v. Doe, 484 U.S. 305, 311 (1988); 20 U.S.C. § 1401(9)(D); see 20 U.S.C. § 1414(d); 34 C.P.R. § 300.320. An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs. 34 C.F.R. 300.320 (a)(1); 8 N.Y.C.R.R. 200.4(d)(2). The CSE then must establish annual goals related to the identified needs of the student and provide for the use of appropriate special education services in the IEP. 8 N.Y.C.R.R. 200.4(d)(2)(iii), (v). The school district must then implement the IEP. 8 N.Y.C.R.R. 200.4(e)(1), (3).

In New York, the school district bears the burden of proof in an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. N.Y. Educ. Law § 4404(1)(c); see R.E., 694 F.3d at 184-85. Is [REDACTED] entitled to compensatory education? And, if so, what compensatory education?

Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each student. Wenger v. Canastota, 979 F. Supp. 147 (N.D.N.Y. 1997). The purpose of an award of compensatory education is to provide an appropriate remedy for a denial of a FAPE to that student. P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008) (IDEA “allows a hearing officer to fashion an appropriate remedy” and “compensatory education is an available option . . . to make up for” a denial of a free appropriate public education”); Reid v. Dist. of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005) (in determining an appropriate compensatory education remedy, “the inquiry must be fact-specific, and to accomplish IDEA’s purposes, the ultimate award must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place”). An award of compensatory education should aim to place the student in the position he or she would have been in had the district met its IDEA obligations. Newington, 546 F.3d at 123 (compensatory education awards should be designed so as to "appropriately address[] the problems with the IEP”); Reid, 401 F.3d at 518 (compensatory education is a “replacement of educational services the child should have received in the first place” and “should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA”).

Here in the Second Circuit, compensatory educational relief in the form of supplemental special education or related services has been awarded to such students if they have been denied a free appropriate public education. P. v. Newington, 546 F. 3d at 123; see also Application of a Student with a Disability, Appeal No. 19-026 at pp. 18-19. Compensatory “additional services” have been awarded to students who remain eligible to attend school and have been denied appropriate services, “if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation.” Application of the New York City Department of Education, Appeal No. 11-132 at

p. 19. These are precisely the circumstances in the instant proceeding. In this case, the DOE did not present testimony or documentary evidence with respect to its provision of FAPE to [REDACTED] for the 2020-2021, 2021-2022 and 2022-2023 school years. Since the Department did not offer any testimony or documentary evidence to demonstrate that the programs it had developed for [REDACTED] were “reasonably calculated” to permit him to make progress given his unique circumstances, the Department did not carry its burden of proof of demonstrating that it offered [REDACTED] a FAPE for the three school years at issue.

In any event, the record is clear: all of the Department’s IEPs were inadequate for [REDACTED], and, the education that he received as per those IEPs did not result in meaningful progress for him. On the other hand, he learned to read after attending [REDACTED] as an early elementary aged student; he benefitted from subsequent tutoring at [REDACTED] to get him to early middle school equivalency. The Department’s CSEs continued to recommend ICT classes for [REDACTED] throughout his school career despite [REDACTED]’s lack of progress in such classes. While [REDACTED] was a nice, well-behaved boy and then young man who attended school, was on time for class, participated in class and did his work, this did not justify his remaining in ICT classes where he was not making meaningful progress. [REDACTED] was doing his part to learn; the Department was not fulfilling its obligations.

In determining the proper award of compensatory education, courts generally seek to craft an award of educational services that would serve to bring the child to the place he would have been but for the school district’s failure to provide her with a FAPE. Reid, 401 F.3d 516. Parent makes a compelling evidentiary showing that 921 hours of 1:1 tutoring is an appropriate compensatory education remedy for the Department’s failures. Ms. [REDACTED]’s uncontroverted and detailed testimony, supported by [REDACTED]’s testing and her experience as an educator, along with [REDACTED]’s history of learning challenges that were not recognized nor remediated in school, supports the recommendation of 921 hours of compensatory services. See ⁋⁋ 6, 12-31, 35 above. If [REDACTED] is entitled to compensatory education, is he also entitled to associated fees and the costs of traveling to and from the services’ provider via public transportation?

Since [REDACTED] is entitled to an award of compensatory education, his parent should not have to pay the monies owed to [REDACTED] for the fees associated with that compensatory education. Furthermore, the Department should fund [REDACTED]’s public transportation in order that he be able to access that compensatory education. Does the balance of the equities favor [REDACTED]’ parents?

Equitable considerations are relevant to consideration of requests for compensatory education. French v. New York State Dep’t of Educ., 476 F. App’x 468 (2d Cir. 2011) (compensatory education denied where parent “repeatedly demonstrated an unwillingness” to permit the student to attend school pursuant to any IEP in place”); J.G. v. Kiryas Joel Union Free Sch. Dist., 777 F. Supp. 2d, 606, 643 (S.D.N.Y. 2011) (denying compensatory education in part because parents failed to respond adequately to the District’s offer of services). The evidence establishes that [REDACTED]’ parent cooperated with the CSE by attending CSE meetings and communicating with Department personnel about her concerns. See, e.g., R.E., 694 F.3d at 185, 195; M.F. v. New York City Dep’t of Educ., 2013 U.S. Dist. LEXIS 79181 at *34-*35 (S.D.N.Y. June 4, 2013) (“equitable considerations” include parental cooperation with the school district, attending CSE meetings, and providing notice to the school district). “Important to the equitable consideration is whether the parents obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA.” C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 840 (2d Cir. 2014). There is no indication in the record that [REDACTED]’s parent impeded the Department’s efforts to offer [REDACTED] a FAPE, and equitable considerations favor the award of compensatory education. Should the CSE be ordered to convene to consider a 2019 IEE?

The IEE was conducted in 2019. It is now outdated; a reconvening of the CSE to consider this IEE would be futile at this time.

ORDER

Based upon the above Findings of Fact and Conclusions of Law, it is hereby ORDERED:

The Department of Education shall fund the following: (a) 921 hours of 1:1 tutoring at [REDACTED] to be utilized by [REDACTED] before September 1, 2025; (b) [REDACTED]’s registration fee ($100.00) and assessment fee ($295.00) for [REDACTED]; and (c) the costs of Metrocards for [REDACTED] to travel to and from [REDACTED] to receive the abovereferenced hours of tutoring.

SO ORDERED.

DATED: May 28, 2023

Jean Marie Brescia, Esq.

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.

DOCUMENTATION ENTERED INTO THE RECORD

DEPARTMENT EXHIBITS

4. Prior Witten Notice 4/20/20 4 pages DOE

5. Prior Witten Notice 8/11/21 4 pages DOE

6. Prior Witten Notice 2/4/22 4 pages DOE

7. Classroom Observation 1/10/20 1 page DOE

8. Functional Behavior Assessment 3/3/20 2 pages DOE

10. Occupational Therapy Report 11/6/19 7 pages DOE

PARENT’S EXHIBITS

A. Pare Title Date Pages nt I.D. Impartial Hearing 2/14/23 7pp. Request B Individualized 1/20/23 23pp. Education Program C Individualized 1/27/22 24pp. Education Program D Individualized 3/2/21 26pp. Education Program E Individualized 3/3/20 28pp. Education Program F Neurodevelopmental 2019 59pp. Evaluation

G. Student Transcript 8/4/22 2pp. H [REDACTED] 11/8/22 4pp. Student Academic Evaluation Results I [REDACTED] 11/8/22 3pp. Individualized Prescribed Hours J [REDACTED] 11/8/22 56pp. Student Test Results

K. Parent Affidavit: April 2023 7pp.

[REDACTED] [REDACTED]

Footnotes

[1] Exhibits shall be referred to as follows: Parent’s exhibits are identified with letters; Department exhibits are identified with numbers; and Impartial Hearing Officer’s Exhibits are labelled as “IHO.”

[2] At no point in this proceeding did the Department raise the affirmative defense of statute of limitations.