New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 596581 - NYC: 246062

FINDINGS OF FACT AND DECISION

Student’s Name ^[1]: REDACTED (“student”)

Date of Birth: REDACTED

School District: NYC # REDACTED

Hearing Requested by: REDACTED (“Parent”)

Request Date/Date Complaint Filed: 02/17/2023

Date(s) of Hearing: 04/10/2023

Actual Record Closed Date: 04/17/2023

Date of Decision: 04/17/2023

Date of Distribution if Different than Decision Date: N/A

Hearing Officer: Leah Martin, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON 04/10/2023

For the Student:

REDACTED (“Parent”)

For the Department of Education:

REDACTED (“DOE Representative”)

INTRODUCTION AND PROCEDURAL HISTORY

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parent’s Due Process Complaint (“DPC") filed on February 17, 2023. (Ex. i) ^[2]. In the DPC,^[3] the Parent alleges that the Department of Education (“DOE”) failed to implement the student’s needed Special Education Itinerant Teacher (“SEIT”) services. (Ex. i-1).

I was appointed to hear the matter on February 21, 2023. On March 20, 2023, Parent and the DOE Representative appeared virtually for a Pre-Hearing Conference (“PHC”). At the PHC, the issues and requested remedies were clarified and a hearing date was set. (Ex. iii-2-3). At the PHC, Parent clarified that this case involves the DOE’s failure to fully implement the student’s 6/23/22 IEP in that the mandated SEIT services were discontinued after 1/20/23 and did not resume. (Ex. iii-3). As remedy, the Parent confirmed at the PHC that they are requesting: 1) an order for the SEIT services from the 6/23/22 IEP to be fully implemented going forward, 2) a bank of compensatory hours of SEIT services (with no expiration date) to make up for those missed, and 3) reimbursement for private tutoring services that Parent increased from one to two hours per week as a result of the denial of SEIT services, at a rate of $30 per hour. (Ex. iii-3).

Pendency was raised at the PHC. (Ex. iii-2). Parent indicated that pendency lies in the 6/23/22 IEP, and includes four hours per day of SEIT services, as well as a health paraprofessional, speech language therapy (“SLT”) (3x30-minute individual sessions per week), and special transportation all on a 12-month basis. (Ex. iii-2). At the PHC, the DOE Representative stated that he did not believe pendency was disputed but that he needed time to verify. (Ex. iii-2). The DOE was ordered to submit any opposition to pendency by email by 3/24/23. (Ex. iii-2). The DOE made no submission, and a pendency order was issued on 3/27/23. (See Order on Pendency).

A virtual due process hearing (“DPH”) was held on April 10, 2023. It was a closed hearing. The Parent was present and represented herself. The DOE Representative was also present. At the DPH, the DOE entered one exhibit (Ex. 1) and called no witnesses. (Tr. 14, 17).^[4] Parent entered into evidence seven exhibits (A-G) and testified as the only witness. (Tr. 18-19). Oral closing arguments were made on the record. (Tr. 29-32). At the end of the hearing, the DOE Representative requested an extension of the timeline, if necessary, to allow for review of the evidence and a decision to be issued. (Tr. 33). Parent objected on the grounds that the student would be harmed by the delay, and the extension was denied for that reason and because an extension was not necessary. (Tr. 34). The record was closed on April 17.

JURISDICTION

The due process hearing was held, and a decision in this matter is being rendered pursuant to the 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 §4404 et seq., and its implementing regulations, 8 NYCRR §200.5 et seq.

BACKGROUND

The student is in preschool and is classified as a preschool student with a disability. (Tr. 20, 22). On June 23, 2022, the DOE convened a meeting of the committee on preschool special education (“CPSE”) and developed an individualized education program (“IEP”) for the student for the 2022-23 school year. (Ex. G-1-2). The 6/23/22 IEP recommended 4 hours per day, 5 days per week of individual SEIT services (among other services) 5 at an Early Childhood Program of the Parent’s choosing for the extended school year (“ESY”). (Ex. G-20-21). The mandated SEIT services were implemented properly until January 20, 2023, when the prior SEIT provider left the position. (Ex. iii-3; F-1). The SEIT services have not resumed for the student since 1/20/23. (Ex. iii-3; F-1).

ISSUES

Parent contends that the DOE’s failure to implement the student’s SEIT services after 1/20/23 denied the student a FAPE for the 2022-23 school year. (Ex. iii-3). 6 Parent confirmed at the hearing that the only mandated service from the 6/23/22 IEP that was not implemented was the student’s SEIT services. (Tr. 21). The DOE conceded at the hearing that the student is entitled to special education services as a preschool student with a disability. (Tr. 20). They also conceded that the program contained in the 6/23/22 IEP is appropriate for the student, and that the SEIT services from the IEP were not implemented after 1/20/23. (Tr. 20-21). Accordingly, there is no factual dispute as to the appropriateness of the 6/23/22 IEP^[7] or the DOE’s failure to implement the SEIT portion of those services after 1/20/23. The only issue to be decided is the appropriateness of the Parent’s requested remedies. At the hearing, the DOE did not dispute the appropriateness of the requested order to implement the SEIT hours and issue a bank of compensatory hours for those that were missed. (Tr. 29-5 Since the implementation of the SEIT services is the only one in dispute here, the other services will not be discussed further in this decision. 6 At the hearing, the Parent indirectly raised the issue for the first time that the student’s early intervention services were denied twice, which caused the student to fall behind her peers, academically. (Tr. 27). According to the Parent, part of the reason she enrolled the student in private tutoring was to make up for delays caused by the early intervention denial. (Tr. 27). As this case only concerns the current school year, and any issue regarding denials prior to that were not timely raised, I decline to consider them here. Similarly, at the hearing, Parent raised the issue of appropriate summer services for the summer of 2023 (Tr. 6-7), and I advised her that the school year at issue ends in June 2023, and that any dispute over summer services for the 2023-24 school year would not be considered in this decision and would need to be addressed in a subsequently filed DPC (Tr. 7-8). 30). Furthermore, the DOE stated that they would not object to reimbursement for private tutoring, should I find it necessary^[8] to make the student whole. (Tr. 29-30). The only requested remedy to which the DOE explicitly objected at the hearing was reimbursement for any private tutoring that was provided during the period of the school year (prior to 1/20/23) when the SEIT hours were being fully implemented. (Tr. 30). ^[9]

FINDINGS OF FACT 10

This student is in preschool and has serious medical issues, including sickle cell disease. (Tr. 27; Ex. G-4). She also demonstrates poor skills in the areas of cognition and expressive and receptive language. (Ex. G-4). The student is easily distracted and “requires constant redirection.” (Ex. G-5). She needs teacher modeling or support to demonstrate consistency with her learning. (Ex. G-5).

On June 23, 2022, the CPSE met and drafted an IEP. (Ex. G-2). The Parent was present at the meeting along with the student’s private tutor (“Private Tutor”). (Ex. G-3). The 6/23/22 IEP recommended SEIT services (4 hours per day individually, 5 days per week), speech language therapy (“SLT”) (3x30x1), a health paraprofessional, and a transportation paraprofessional for the ESY. (Ex. G-20-21). The 6/23/22 IEP notes that the student “presents with delays that require the support of an extended school year program in order to prevent substantial regression of skills.” (Ex. G-21).

The student received the mandated SEIT services from the beginning of the 2022-23 school year until 1/20/23. (Tr. 20-21, 25; Ex. F-1). The student’s last day of SEIT services was 1/20/23. (Ex. F-1). Parent has been in frequent communication with the student’s school and DOE in order to arrange for the SEIT services to be restarted. (Ex. C-1; E-1; F-1; ). However, those efforts have not been successful, due to staffing shortages. (Ex. C-1; E-1; F-1; i-1-5).

On October 7, 2022, the student began receiving tutoring from the Private Tutor. (Tr. 25; Ex. A-1). Parent sought private tutoring because she was concerned that the student had fallen behind her peers due to a denial of early intervention services (Tr. 27) and also because she believed that the student’s SEIT sessions were not adequately addressing the student’s reading needs (Tr. 25-26).^[11] According to the Parent, the student’s SEIT services focused primarily on her annual goals, using primarily “learning through play,” and she did not feel that there was sufficient focus on reading. (Tr. 25-26). Parent wanted the student reading by June. (Tr. 25). The Parent heard of the Private Tutor through word of mouth. (Tr. 25). The Parent has no contract with the Private Tutor, but instead has a “pay as you go” arrangement. (Tr. 26). The Private Tutor has New York state professional certificates in early childhood education

10 Facts contained in the “Introduction and Procedural History” and “Background” sections above are incorporated here as well. (birth to 2d grade), childhood education (grades 1-6), and students with disabilities (birth to grade 6). (Ex. B).

The student received seven 12 private tutoring sessions between October 7, 2022, and January 13, 2023. (Ex. A-1). The student received nine 13 private tutoring sessions between January 25, 2023, and March 31, 2023. (Ex. A-1). The Parent has paid $30 per hour for the tutoring sessions with the Private Tutor. (Ex. A-1). Prior to January 2023, the student was receiving approximately one to two sessions per month and in January started receiving approximately one session per week. (Ex. A-1). It is unclear 14 whether the increase in services was due to the Private Tutor’s availability (Tr. 26) or whether the Parent requested the increase due to the student’s lack of SEIT services (Ex. iii-3). Parent testified that the student’s medical costs cause her financial hardship. (Tr. 27).

In preparation for the student’s turning five IEP, a psychoeducational evaluation was conducted on February 17, 2023. (Ex. 1-1). During the evaluation, the student required frequent prompts to remain on task and benefited from redirection, repetition, breaks, and positive reinforcement. (Ex. 1-1). For that reason, the evaluation notes that it is only “a rough presentation” of the student’s current functioning. (Ex. 1-1). According to the psychoeducational evaluation, the student’s full-scale IQ and verbal comprehension are in the low average range. (Ex. 1-2). Additionally, the student’s total achievement performance (which measures overall academic achievement in areas of reading and math) was in the very high range (94th percentile). (Ex. 1-5). Her performance in word reading and alphabet writing fluency were above her grade equivalent. (Ex. 1-5). Her math problem solving scores fell within the average range. (Ex. 1-5-6).

Although the DOE issued related service authorizations for the SEIT services during the pendency of this case (Tr. 24), they have been unable to locate an available provider and SEIT services have not yet resumed (Tr. 7; Ex. C-1; E-1). It is still unclear when the student’s SEIT services will resume. (Tr. 11; Ex. C-1; E-1).

LEGAL FRAMEWORK

IDEA

The IDEA provides that children with disabilities are entitled to a free appropriate public education (“FAPE”). 20 U.S.C. §1400(d)(1)(A). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written Individualized Education Program (“IEP”). 34 C.F.R. §300.13. 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. Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). To meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2017). A 12 Two in October, one in November, two in December, and two in January prior to 1/20/23. (Ex. A-1). 13 Two in January after 1/20/23, three in February, and four in March. (Ex. A-1). 14 Parent gave a different explanation for this at the hearing than she did at the PHC. school district must be able to “offer a cogent and responsive explanation for their decisions” in creating the IEP.” Id. The IEP must be reviewed at least annually [34 C.F.R. §300.324(b)(1)(i)], and a district must have an IEP in place for each student with a disability within its jurisdiction at the beginning of each school year [8 NYCRR §200.4(e)(1)(ii); Davis v. Wappingers Cent. Sch. Dist., 772 F. Supp. 2d 500, 508 (S.D.N.Y. 2010)]. To avoid predetermining an IEP, the District must come to the meeting with an “open mind.” T.P. ex rel S.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 (2d Cir. 2009).

For procedural violations, a denial of a FAPE only occurs “if the procedural inadequacies- (I) impeded the child’s right to a [FAPE]; (II) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a [FAPE] to the parents’ child; or (III) caused a deprivation of educational benefits.” 20 U.S.C. §1415 (f)(3)(E)(ii); 34 C.F.R. §300.513(a)(2). Failure to implement substantial or significant provisions of an IEP is a denial of a FAPE. J.L. v. New York City Dept. of Educ., 324 F. Supp. 3d 455, 467 (S.D.N.Y. 2018); see also Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 (5th Cir. 2000); Davis v. Wappingers Cent. Sch. Dist., 431 Fed. App. 12, 14 (2d Cir. 2011). The IDEA requires school districts to provide appropriate education to students with disabilities, "not one that provides everything that might be thought desirable by loving parents." Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 132 (2d Cir. 1998) quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989).

Relief

A hearing officer may award compensatory education relief in the form of supplemental special education or related services when there has been a denial of a FAPE. See P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008). An award of compensatory services may be appropriate if a student has been denied appropriate services for an extended period of time and if such deprivation of instruction can be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation. An award of additional services should aim to place a student in the position he or she would have been in had the district complied with its obligations under the IDEA. Id.

A compensatory education award can be crafted by either a “quantitative” or “qualitative” approach. Under the quantitative approach, the compensatory award is based on the amount of time that comprised the FAPE deprivation (in which a student is entitled to compensatory education for a period equal to the period of deprivation). Under the qualitative approach, the focus is on a student’s needs and is based on the specific educational deficits that resulted from the FAPE deprivation (with the compensatory award being the specific services needed to correct those deficits).

Compensatory education is an equitable remedy, so principles of equity and fairness come into play and may impact whether compensatory education is awarded or the amount of the award. See, e.g., Garcia v. Bd. of Educ. of Albuquerque Pub. Schs., 49 IDELR 241 (10th Cir. 2008); Application of Student with a Disability, Appeal No. 21-244. Furthermore, a request for compensatory relief may be denied if there is insufficient causal link in the record between any deprivation and the student’s current deficits. See, e.g., Phillips v. Dist. Of Columbia, 932 F. Supp. 2d 42 (D.C. Cir. 2013) (upholding denial where student received a similar level of comparable services during the period of deprivation and there was support in the record for IHO’s conclusion that the student’s current difficulties do not stem from the FAPE denial); T.B. v. Prince George's Cty. Bd. of Educ., 897 F.3d 566 (4th Cir. 2018) (parents failed to prove a loss of educational benefits where teachers showed that when student attended class he performed well and completed assignments); Somberg v. Utica Cmty. Schs., 908 F.3d 162 (6th Cir. 2018) (holding that Endrew F. standard is not applicable to determination of compensatory education and it is appropriate to consider any advancement made by the student in crafting an award, regardless of the substantive appropriateness of the IEP); Parents of Student W. v. Puyallup Sch. Dist., No. 3, 31 F.3d 1489 (9th Cir. 1994) (denying compensatory education where the student was able to graduate with his class and the parents had declined the district’s offer of extra services).

Burdens

In New York, school districts have the burden of proof, including the burdens of persuasion and production, in IDEA due process hearings, except that a parent seeking reimbursement for a unilateral parental placement has the burdens of persuasion and production on the appropriateness of such placement. NYS Educ. Law §4404(1)(c).

The DOE has the burden of proof on the issue of compensatory education. See M.M. v. New York City Dept. of Educ., 2017 WL 1194685 at *4 (S.D.N.Y. 2017); Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 457 (2d Cir. 2015); Reid ex rel. Reid v. Dist. of Columbia, 401 F.3d 516, 524 (DC Ct. of App. 2005); Application of Student with a Disability, Appeal No. 21-169. However, just because the DOE does not submit a case does not mean the parent is necessarily entitled to their full requested compensatory remedy. See M.M. v. NYC Dep’t of Educ., 2017 WL 1194685, at *8 (S.D.N.Y. 2017); Application of Student with a Disability, Appeal No. 21-213. Requested hours may be limited if the need for them is inadequately supported by the record, would lead to diminishing returns, or could overwhelm the student. See M.M., 2017 WL 1194685, at *8 (“[c]ommon sense and experience teaches that services that may be valuable for, or even critical to, a child’s educational achievement when provided in small to moderate amounts may become useless, or even burdensome, if provided in overwhelming quantity.”); Application of Student with a Disability, Appeal No. 21-213 (“While the district failed to present evidence or its view of an appropriate compensatory education award, the IHO was not required to award all of the relief that the parents sought. Such an outright default judgment awarding compensatory education-or as in this case, any and all of the relief requested without question-is a disfavored outcome even where the district's conduct in denying the student a FAPE and in failing to actively participate in the impartial hearing process is egregious.”) citing Branham v. Govt. of the Dist. of Columbia, 427 F.3d 7, 11-12 [D.C. Cir. 2005] and M.M., supra.

ANALYSIS AND CONCLUSIONS OF LAW

There is no dispute about the student’s eligibility for a special education program and services or her disability classification here, and the DOE has conceded the appropriateness of the student’s 6/23/22 IEP. The DOE has also conceded a failure to implement the student’s mandated SEIT services (4 hours per day, five days per week) after 1/20/23. Since the DOE has conceded a failure to implement a substantial provision of the student’s IEP, they have essentially conceded a denial of a FAPE here.

The DOE has also conceded that the student should be made whole. The only issue in dispute is the appropriate remedy to achieve that end. There are no equitable considerations that weigh against the Parent here – they attended the CSE meeting and cooperated fully with the DOE. Furthermore, there is no dispute about the student’s entitlement to the mandated SEIT services or a bank of hours for those that should have been provided but were not. I find those requests to be appropriate. Given the parties’ agreement that the mandated SEIT hours are appropriate, I find that the DOE must provide them. Although the period of deprivation was only a few months, given the student’s age, that time period constitutes a significant portion of her young life. Accordingly, it is also appropriate^[15] for the DOE to provide a bank of hours for any SEIT services that should have been provided under the 6/23/22 IEP but were not.

The only question remaining is the appropriateness of ordering reimbursement and future funding for the student’s private tutoring. The DOE has not disputed the qualifications of the Private Tutor, and I find that she is appropriately qualified. However, there is insufficient evidence in the record to support the need for all the private tutoring hours.

Here, the Parent sought out and obtained private tutoring for the student in October 2022, when the student’s SEIT hours were being fully implemented. Based on the hearing record, it appears that the Parent’s motivations for obtaining private tutoring were threefold: 1) she was concerned that the student had fallen behind her peers due to a denial of early intervention services, 2) she felt that the SEIT’s focus on the annual goals using “learning through play” did not provide sufficient focus on reading, and 3) she wanted the student to learn to read, possibly sooner that the regular preschool curriculum would facilitate. First, any deficits potentially caused by a denial of early intervention is not properly at issue in this case, and thus is not proper for consideration in crafting the appropriate remedy here. Second, I find it appropriate that the student’s SEIT was focused on the annual goals and learning through play is also appropriate for preschool students. Finally, while I can appreciate Parent’s desire to accelerate the student’s reading skills, that does not mean the DOE is obligated to reimburse the Parent for services obtained for that purpose. The IDEA does not require “everything that might be thought desirable by loving parents.”^[16] Moreover, since the private tutoring began prior to the FAPE violation here, there is no causal link between the FAPE deprivation and the Parent’s decision to incur the cost of private tutoring prior to 1/20/23. For these reasons, the Parent’s request for reimbursement for private tutoring sessions provided prior to 1/20/23 must be denied.

Furthermore, the record does not support any need for private ELA/math tutoring services. According to recent testing, the student’s word reading and alphabet writing fluency are above her grade level equivalent. Her extremely high scores in total achievement performance during that evaluation indicate that she is not in need of additional reading tutoring. And, although it was not fully addressed ^[17] during the hearing testimony, the student does not appear to need additional math tutoring either, as her math performance is within the average range. Accordingly, there is no causal link between any FAPE deprivation and the student’s current deficits that would justify reimbursement for private ELA/math tutoring. There does not appear to be any loss of educational benefits in the areas of ELA or math at all. Thus, the record before me does not support the appropriateness of reimbursement for private tutoring (before or after 1/20/23) in addition to the compensatory SEIT hours already discussed.

However, the equities are in the Parent’s favor. And there is some indication in the record that the frequency of private tutoring was increased in response to the FAPE deprivation. Under the circumstances, it was reasonable for the Parent to increase the private tutoring after 1/20/23 in order to try to prevent any educational loss due to the student’s lack of SEIT services. Given that, and the Parent’s financial hardship, it is fair for the DOE to bear the cost of those tutoring services provided during the period of the FAPE violation. However, as discussed previously, since I do not find it appropriate to order reimbursement in addition to the bank of SEIT hours for that period, I find that the bank of SEIT hours should be reduced by the number of sessions for which reimbursement is ordered. This is essentially a substitution of the private tutoring for SEIT sessions, which, as a special educator the Private Tutor is qualified to provide. Here, the student received nine private tutoring sessions between 1/20/23 and the end of March. Based on the current schedule, the student should receive approximately four more tutoring sessions by the end of April. By providing reimbursement for up to 13 tutoring sessions, that will allow the tutoring to continue on a weekly basis until the implementation date of this order. I find that to be appropriate in order to provide consistency for the student and prevent a gap in services. Accordingly, the Parent shall be reimbursed for up to 13 tutoring sessions ($390) upon DOE receipt of invoices and proof of payment for tutoring services rendered between 1/20/23 and 4/30/23. Correspondingly, the bank of SEIT hours will be reduced by 13 sessions.

I have reviewed the parties’ remaining contentions and find them to be either unnecessary to this decision, without merit, beyond my jurisdiction, or without sufficient basis in the record for a finding. Accordingly, any relief not specifically discussed in this decision is denied, and all the Parent’s remaining claims not discussed herein are dismissed with prejudice.

ORDER

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

1. Parent’s claim for reimbursement for the student's private tutoring is GRANTED for the 2022-23 school year as follows: The New York City Department of Education shall reimburse the Parent in an amount not to exceed $390 for private tutoring sessions provided to the student by the Private Tutor^[18] between 1/20/23 and 4/30/23, within twenty (20) days of submission of invoices matching those service dates and proof of payment; it is further

2. ORDERED that, by April 30, 2023, the New York City Department of Education shall review service records and determine how many hours of compensatory SEIT services the student is entitled to that were not already provided for the 2022-23 12-month school year. The total number of missed SEIT sessions shall then be decreased by 13, the difference of which (total missed hours minus 13) will be provided as a bank of compensatory education services, and must be used within two years of the date of this Order; and it is further

3. ORDERED that the DOE shall fully implement the SEIT services mandated in the student’s 6/23/22 IEP (four (4) hours per day, five (5) days per week, on an individual basis) on or before April 30, 2023, through the end of the 2022-23 school year.

SO ORDERED.

DATED: April 17, 2023 Leah Martin, Esq. (Signed Electronically)_

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.

APPENDIX A – DOCUMENTATION ENTERED INTO THE RECORD

DOE’S EXHIBITS

1. Psychoeducational Evaluation 02/17/23 6 pages DOE

PARENT EXHIBITS

B. A. Tutor Historical Invoice undated 19 1 Tutor Certifications undated 2 pages

C. Correspondence RE: Delayed SEIT Start 4/3/23 1 page

D. Email from District RE: Delayed Re-evaluation Report 4/3/23 1 page

E. Email to District RE: Continued FAPE Deficiency 3/30/23 1 page

F. Email RE: Final Day of Former SEIT Services 3/30/23 1 page

G. IEP & Email from District RE: IEP 6/23/22 23 pages

IHO’S EXHIBITS

i. DPC 2/17/22 6 pages

ii. DPR 3/28/23 3 pages

iii. PHC Summary and Order 3/20/23 19 The dates for all Parent’s Exhibits, with the exception of Exhibit G, were read into the record at the DPH as 3/31/23 as that was the date listed on Parent’s Exhibit list. Upon further review, those dates were incorrect, and the list here contains the corrected dates. For Exhibit G, the date listed here is the date on the IEP itself rather than the date of the accompanying email that appears on page one of that Exhibit. 3 pages

Footnotes

[1] Personally identifiable information is attached as Appendix B, “Redaction Identification Page,” to this decision and must be removed prior to public distribution.

[2] Exhibits shall be referred to as follows: Ex. followed by lettered designations for Parent’s Exhibits, numbered designations for DOE’s Exhibits, and roman numeral designations for Impartial Hearing Officer’s Exhibits. Exhibit designations will be followed by the page numbers as needed and appropriate. For example, Parent’s Exhibit A, page 1, will be referred to as (Ex. A-1). A copy of the DPC is included in the record as IHO Exhibit i.

[3] Although the DPC does not contain all the required information, such as the student’s date of birth, the Parent’s address, or the student’s school of attendance, the DOE did not raise any issues of facial sufficiency, so they were waived. Any missing information was provided at the PHC. (See PHC Transcript).

[4] References to the hearing transcript will be referred to as (Tr.) followed by the page number within the transcript.

[7] At the hearing, the Parent indirectly raised an issue for the first time as to the appropriateness of the IEP’s goals, by claiming that she believed private tutoring was necessary because the SEIT provider was only addressing the IEP’s goals and was not working on reading skills with the student. (Tr. 25). However, this was not properly at issue during this hearing, as it was not raised in the DPC or when the issues were certified at the PHC. (Ex. i; iii-3). Accordingly, I decline to consider any challenge to the appropriateness of the IEP, as it was not timely raised.

[8] The DOE argued in summation that the student’s recent psychoeducational evaluation (Ex. 1) shows that she is doing reasonably well and that it is not clear whether having the mandated SEIT services would have changed the student’s current level of functioning. (Tr. 30).

[9] At the PHC, Parent only made a request for reimbursement for private tutoring after the SEIT services were discontinued on 1/20/23. However, at the hearing, Parent requested reimbursement for tutoring hours going back to October 2022, and also asked for an order for reimbursement for any future tutoring hours provided until such time as the student’s SEIT hours are implemented again. (Tr. 10-11).

[11] Although the invoices in evidence indicate that the private tutoring sessions are for “ELA and Math” (Ex. A-1), there was no specific testimony at the hearing regarding the need for math tutoring.

[15] The DOE has not disagreed.

[16] Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 132 (2d Cir. 1998) quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989).

[17] There was one conclusory statement by the Parent regarding the need for “ELA and math” tutoring, but no specifics as to the student’s deficits or needs in math; the only specific testimony regarding the student’s needs related to reading instruction. (Tr. 25).

[18] The invoices may have the name of the Private Tutor, or alternatively, may have the name of the Private Tutor’s agency (“Tutoring Agency”).