New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 246102

Student’s Name: [REDACTED]

School District: District # [REDACTED]

Impartial Hearing Officer: Michelle S. Babbitt

Date of Filing: 2.21.23

Hearing Requested by: Parent

Date of Hearing: 6.13.23

Record Close Date: 8.8.23 Date of Post Hearing Written 7.20.23 and 7.26.23 Summations: Date of Decision: 8.9.23

NAMES AND TITLES OF PERSONS WHO APPEARED ON 6.13.2023:

For the Student:

[REDACTED], Esq. (hereinafter referred to as “Parent’s representative”)

[REDACTED], Parent (hereinafter referred to as “Witness #1”) (affidavit in lieu of direct testimony and cross-examination)

[REDACTED], Director of Early Childhood at Private School (hereinafter referred to as “Witness # 2”) (affidavit in lieu of direct testimony)

For the Department of Education:

[REDACTED], Esq., Agency Attorney (hereinafter referred to as “District’s representative”)

BACKGROUND AND PROCEDURAL HISTORY

Petitioner filed a Due Process Complaint on 2.21.23 against the New York City Department of Education (“NYC DOE” or “DOE” or “District”) pursuant to the Individuals with Disabilities Education Act (“IDEA”). I was appointed as the impartial hearing officer on 4.25.23 I held a Prehearing Conference in this matter on 5.23.23. The District representative stated that she is still investigating the case. Therefore, I directed that the DOE shall advise the Parent and this tribunal of its position with respect to the allegations and requested relief in the DPC by sending an email to both on or before the close of business (5:00 p.m.) on 5.17.23. That email shall also include the number of witnesses the DOE is going to present and if they will testify by affidavit or by direct testimony. The DOE shall also state if they will be making any pre-hearing motions or serving any subpoenas. I afforded the DOE two weeks’ time to decide how they are to proceed. The parties selected 5.30.23 from 10:30 a.m.-1:00 p.m. for a hearing on the merits (IHO Exhibit 1). The hearing was then rescheduled for 6.13.23. Participating in the hearing were Parent’s Representative and the District’s representative.

HEARING

At the beginning of the 6.13.23 hearing, I confirmed the District’s position. The District stated they were not conceding Prong 1 but were resting on the documents alone to support the provision of a free and appropriate public education (“FAPE”) for the Student. The District did not present any witnesses to testify on their behalf (Tr. 5-6, 15). The District stated that they could meet their Prong 1 burden through documents alone and would address the issue in their closing memorandum. The District stated they were not affirmatively putting on a Prong III case, but if there were issues, they would be brought out on cross-examination (Tr. 6). The DOE made a brief opening statement but did not make any assertions as to any of the three prongs under the Burlington/Carter standard (Tr. 6-7) The Parent made an opening statement discussing the Student, the placement and the three prongs to be considered in rendering a decision (Tr. 7-15).

Parent objected to the admission of the District’s untimely disclosure into evidence (Tr. 15-17). The District sought to introduce two documents into evidence, the Individualized Education Program (“IEP”) and the Prior Written Notice (“PWN”) (which speaks to placement) for the 22-23 school year. The Parent admitted receiving the IEP and PWN for the Student. I admitted the documents into evidence, finding them germane to the proceeding and necessary to complete the record. Parent argued that admission into evidence of the untimely documents was prejudicial to the Parent as the DOE was relying on these documents alone to prove their case. Admission of the documents, Parent argued, significantly impacted the Parent’s presentation of its case. Acknowledging the impropriety of late disclosure and the possible impact on the case, I ruled that I would reconsider my ruling and the admissibility of the two documents if my decision relied on the two documents to render a decision in favor of the DOE. I also afforded Parent’s representative the opportunity to review the documents after the hearing to ascertain whether the documents were complete and accurate. Parent was permitted to admit copies of these two documents if they differed from those offered and admitted into evidence by the District. After the hearing, Parent did not submit an IEP or PWN, thereby agreeing that the District’s documents were complete and accurate (Tr. 21-25).

Parent sought to admit into evidence Exhibits A-N. The District objected to Exhibit B, the 2021 IEP, and Exhibit C, Progress reports from the 21-22 school year, arguing that both documents were irrelevant to the school year at issue, that being the 22-23 school year. Parent argued that Exhibit C were the documents relied upon by the CSE to create the IEP for the 22-23 school year in that they indicated the Student’s functional, educational, and performance levels. The District representative stated that Parent’s argument supported the admission of the IEP (Exhibit 1) and withdrew the objection to Exhibit C. The District contended that the IEP from the prior school year was irrelevant for the 22-23 school year. Over the District’s objection to the admission of Exhibit B, Parent’s Exhibits A-N were admitted into evidence. Parent had the obligation to rectify its exhibit package and provide a signed copy of the neuropsychologist’s affidavit after the hearing (Tr.25- 31).

The District did not present a case in chief through witnesses but relied solely on the documents (Tr.31).

Parent relied on Witness #1’s affidavit for the Parent’s direct testimony. The District cross-examined the Parent (Tr. 33-41). Parent relied on Witness #2’s affidavit to address the Private School and the Student’s performance there. The District elected not to cross-examine Witness # 2.

The DOE and Parent submitted written closing summations and briefs on 7.20.23 (IHO Exhibits 2 and 3). On 7.21.23, after reviewing the Parent’s written summation and brief, I sent an email to Parent:

Good morning: Parent introduced a number of exhibits into evidence (A-N). At hearing I made it clear that the Parent had to tie together all evidence (testimony and documents) to support its position. Parent has the burden of proof on Prong 2. Yet, in its’ closing statement and brief Parent offered no argument and analysis but simply made a conclusory statement. It is not this tribunal’s task to wade through documents to make arguments in support of a party’s position “It is the Parent's burden to basically show me how it is relevant. I do understand that I now have the IEP for the school year in question before me through the District’s evidence. All exhibits that are introduced into evidence, it's the parties' burden to show me how they’re relevant, how they're germane to the issues. So, the District has withdrawn their objection to Exhibit C, which I, I did hear that Exhibit C actually supports the reason for one of the District's exhibits being admitted into evidence.” (Tr. 30-31)

“All evidence and testimony affirmatively establish that the [REDACTED] School was an appropriate placement reasonably calculated to meet [REDACTED]’s needs. Neither the DOE nor the IHO had any questions of the school and accepted the school and Parent testimony and evidence as to Prong 2 as unopposed. Accordingly, the Parent has met their Prong 2 burden.” (Parent’s closing statement and brief at page 14(Exhibit 3-14).

On two separate occasions I granted Parent’s request for an extension of time within which to submit its closing statement.. I find it disconcerting that Parent completely failed to address its evidence and how it supports its Prong 2 argument. I am affording Parent an opportunity to prepare argument on how it met its Prong 2 burden. Parent is to submit a written summation and brief point addressing how the Private School met the Student’s needs. This requires discussing and analyzing the testimony and evidence. Parent is required to submit this written summation and brief point on Prong 2 only on or before the close of business on 7.26.23. I will then afford the DOE an opportunity to respond to that new submission if it elects to do so.

Thank you (IHO Exhibit 4).

Parent agreed to submit a revised memorandum (IHO Exhibit 4).

On 7.21.23 after reviewing the District’s closing summation and memorandum I sent an email to the District:

I note that in its written summation and brief the DOE argues “the district did not present witnesses but did offer documents to prove that a FAPE was offered to the student. There was no dispute that an IEP was convened and created and no dispute that a school placement was recommended and sent in a timely manner.” However, there is no discussion in the DOE’s closing statement and brief how the IEP itself is sufficient on its face. The District does not detail how the IEP addresses student’s present level of performance and needs, academic skills, ELA, math, social development, physical development, annual goals, management needs, supports and services, etc. It is not the task of this tribunal to do a deep dive into the IEP to show its adequacy, as is argued by the District. I am affording the District an opportunity to provide this factual analysis in support of its legal position. If the District elects to do so, it shall provide this information/analysis by the close of business on 7.26.23. I will then afford the Parent an opportunity to respond to that new submission if it elects to do so. Thank you. (IHO Exhibit 5).

The District representative stated that she would address the concerns raised in the 7.21.23 email (IHO Exhibit 5).

On 7.26.23, the Parent submitted its supplemental brief (IHO Exhibit 6).

Thereafter, the District elected not to submit the supplemental written summation addressing its Prong 1 argument. I sent two emails to the District about the supplemental submission and whether it was now conceding FAPE; I did not receive any response (IHO Exhibit 7).

Parent submitted a corrected exhibit list and exhibits on 8.9.23.

FINDINGS OF FACT AND DECISION

After a full review of the record generated at the hearing, I make the following findings of fact and determinations.

The Student, a [REDACTED]-year-old child, has significant delays across a variety of areas, including language development, attention, executive functioning, and fine motor skills (Exhibit N1). The Early Childhood program (“EC”) at the Private School serves students up to six years old (Exhibit M-3) and is designed for bright students with learning differences that require individualized instruction through explicit, sequential, direct, and multisensory instruction (Exhibit M-3). The classrooms have two teachers and a dedicated speech-language pathologist, and an occupational therapist (Exhibit M-3). The Private School uses the Orton Gillingham methodology, “a structured, sequential, explicit, systematic approach to reading, which involves multisensory instruction and a strong emphasis on phonics and morphology” (Exhibit M-3, 5). There is a thorough admissions process. After going through that process, the Private School determined the Student was an appropriate fit for their model and students and offered the Student a seat for the 22-23 school year (Exhibit M-4).

The Student was placed in an 11:1 classroom and benefited from its small size, languagebased, and individualized instruction, with similar peer groupings in the classroom. (Exhibit M-4). Like the Student, the other students in his class have at least average intelligence, are socially motivated, and struggle in one or multiple areas. (Exhibit M-4) The teacher-student ratio in the Student’s classroom provides the Student with the support he needs to participate academically and social-emotionally (Exhibit M-4). The Student was placed in the classroom after a baseline assessment; his progress was measured throughout the school year; Parents were provided with progress reports twice per year (Exhibit M-6, Exhibit I).

The Private School provides the Student with occupational therapy and speech-language therapy. The language-based curriculum is programmatic and infused throughout the curriculum (Exhibit M-5).

Considering the foregoing, and as more fully discussed below, I find that a) the DOE did not offer the Student a FAPE for the 2022-2023 school year; b) the Private School offers the Student specially designed instruction sufficient to meet the Student’s needs and c) the equities favor the Parent.

Burden

School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in a parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement. ^[1]

Prong I

The IDEA provides that children with disabilities are entitled to a Free Appropriate Public Education ("FAPE").^[2] 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”).^[3] 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.^[4] In order 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.” ^[5]

As to Prong I of the Burlington/Carter standard, the DOE failed to meet its burden at the hearing. A reviewing court may fairly expect the DOE to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances. 6 As to Prong I of the Burlington/Carter standard, the DOE failed to meet its burden at the hearing. Rather, the DOE Representative indicated on the record that DOE was introducing two documents, not presenting any witnesses, and resting on the documents alone. The District solely relies on the documents offered by the Parent to demonstrate that it provided the Student with FAPE. The documents were not accompanied by testimonial evidence, and I provided the District an opportunity to detail how the IEP and PWN provided FAPE in its closing statement and brief. The District failed to do so (IHO Exhibit 2 and 7). 7 As stated by Parent in their closing summation and brief: “It is not an IHO's responsibility to craft the DOE’s position regarding the primary issue in the case or to review the documents placed in evidence and search for and interpret their meaning. Rather, the movant of such evidence has that burden” (IHO Exhibit 6-9-10). There was no testimony to explain the CSE’s decisions and recommendations from the IEP meeting conducted in 2022, let alone a “cogent and responsive” explanation. ^[8]

Parent raised several arguments in support of its assertion that the Student was denied FAPE. Procedural Deficits:

• The IEP meeting was a turning five reevaluation. The Regulations Part 200.4(b) and the SOPM at page 88 require the following assessments in a reevaluation: (1) physical

6 Endrew F. v. Douglas County School District, 137 S. Ct. at 1002 (2017). 7 The District’s argument in its closing summation and brief is as follows:” Here, the documents submitted by the District support a finding that the District provided a FAPE to this student. In Application by the New York City Department of Education, Appeal No. 23-005, the court found that the district can meet its burden solely based on documents alone. See 23-005, 9-10. In that case, the district did not present witnesses and solely relied on the IEP and school location letter to prove that a FAPE was offered for the student (See generally 23-005). The IHO, in that matter, found that given there was no evidence to the contrary in the record other than the parent’s testimony, the evidence supported a finding that a FAPE was provided to the student (See 23-005, 9-10). In addition, on appeal, the court found that this did not constitute burden shifting as the IHO reviewed all the evidence in the matter to come to its conclusion and merely asked the parent to explain their reasons for the alleged deficiencies in FAPE to gain their perspective. Here, as in 23-005, the district did not present witnesses but did offer documents to prove that a FAPE was offered to the student. There was no dispute that an IEP was convened and created and no dispute that a school placement was recommended and sent in a timely manner. There was no testimony from anyone other than the parent that the IEP or placement was inappropriate, just as in 23-005.” examination, (2) psychological evaluation, (3) a social history evaluation, (4) classroom observation, and (5) other assessments or evaluations, as necessary. The DOE conducted none of these necessary assessments, nor did they place any in evidence to meet their burden.

• The Regulations Part 200.5(a) requires the DOE to meet and determine what assessments in addition to the above are needed and notify parents via Prior Written Notice (“PWN”) in accordance with the Regulations Part 200.5(a) of the proposed assessments and evaluations to be used at the IEP meeting. Here, the DOE did not provide pre-IEP PWN as required by the Regulations Part 200.4(a). The Regulations also require that the CSE provide copies of the evaluations and assessments to be used to the Parents in advance of the reevaluation meeting, but here the Parent was not provided copies of any reports in advance. Part 200.5(a) also requires post-IEP PWN, which was not established to have been provided to the Parent.

• Part 200.4(b) requires the CSE to make efforts to obtain the Parents informed consent and review the evaluation process at a social history meeting and/or update, but here, the DOE failed to present these documents. The Parents were not provided with a copy of the procedural safeguards.

• Procedural violations denied Parent the ability to meaningfully participate in the development of the Student’s 22-23 program and placement, a substantive denial of FAPE, under the Regulations Part 200.5(d)(1).

• The Parents did not receive proper, timely, or adequate PWN of the reevaluation, adequate procedurally compliant notice of the IEP meeting, or copies of all reports and evaluations the CSE proposed to utilize at the meeting. (IHO Exhibit 6-10-11).

Substantive Deficit:

• IEP recommendations were not in accord with educational evaluation (Exhibit D-9) (IHO Exhibit 6-12-13).

DOE Failed to Show Placement Could Implement IEP:

• The District failed to allege or prove that the recommended placement had the ability to implement the recommendations in the IEP (IHO Exhibit 6-13).

As alleged by Parent and detailed above, the DOE failed to provide a witness to explain its recommendations or respond to the deficiencies alleged by Parent. ^[9]

Prong II

A private school placement must be "proper under the Act."^[10] This means that the private school must offer an educational program that meets the student's special education needs.^[11] Parents seeking tuition reimbursement “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate.”^[12] Subject to certain limited exceptions, “the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement.” ^[13]

Parents need not show that the placement provides every special service necessary to maximize the student's potential.^[14] When determining whether a unilateral placement is appropriate, “[u]ltimately, the issue turns on” whether the placement is “reasonably calculated to enable the child to receive educational benefits.”^[15] A private placement is appropriate if it provides instruction specially designed to meet a student’s unique needs. ^[16]

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement. No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefits, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. ^[17]

Private School was an appropriate educational program for the Student The Private School addresses the Student’s challenges with the following:

• scaffolded, multisensory, interactive, and repetitive teaching approach, which supports his attention, comprehension, and learning (Exhibit M-6). • dynamic lessons where he can establish a personal connection and prior knowledge of the content (Exhibit M-6) • seating that is in proximity to the speaker or the smartboard, which helps decrease external distractibility (Exhibit M-6). • extra support as needed (Exhibit M-6). • attention and confidence significantly improve in small group, multisensory learning opportunities that are interactive, visually stimulating, and provide kinesthetic opportunities with a reduction in language demands (Exhibit M-6). • when fatigued, the Student benefits from a seating change and incorporated movement to reengage him (Exhibit M-6). • explicit, direct, interactive, and reiterative instruction (Exhibit M-6). • periods of physical movement or input every thirty minutes, so during the other times, he can attend, focus, and learn to the best of their abilities, whether in academics, play, or social opportunities (M-7). • participates in Yoga to help with his mindfulness, core and extremity strength, balance, and focus (Exhibit M-7). • reading instruction is multi-sensory and fully integrated with spelling and handwriting, allowing the Student to experience letters in multiple ways (Exhibit M-7). • kinesthetic cues to support reading skills (Exhibit M-7). • Stern Structural Arithmetic and Singapore Math are used in conjunction with interactive games and activities to provide students with structural, hands-on tools to connect the mathematical language to concrete concepts and experiences (Exhibit M-8). • during Play Time, the Student is in a small, facilitated group that helps him practice negotiating with his peers, creating a group plan, and expanding his schema given his concerns with rigidity (Exhibit M-8). • Therapeutic Art sessions are also socially focused, as the Student learns how to navigate shared spaces and materials with other peers (Exhibit M-8).

Witness # 2 testified that there are noted improvements in the Student’s regulation, confidence, reading, and writing because of explicit, direct, systematic, interactive, and reiterative instruction. (Exhibit M-6). Witness # 2 described the Student’s progress in reading, writing, mathacademic subjects, as well as his social growth (Exhibit M-7-8). Witness # 2 concluded that the Student was appropriately placed in the Private School “for the 2022-2023 school year and has made progress in this small, supportive, specialized class and school setting that can challenge the Student, while, at the same time, provide him with the specific and unique supports he needs to make progress with his attention, language, regulation, and academics” (Exhibit M-8-9).

The District did not cross-examine Witness #2, and I find Witness #2’s testimony credible as to the Student and the Private School.

Exhibit I addresses the Student’s progress: Overview (Exhibit I- 1-2); reading and spelling (Exhibit I- 2-3); writing (Exhibit I- 3-4); math (Exhibit I- 4-5); social studies (Exhibit I-6); science (Exhibit I-6-7); handwriting (Exhibit I- 9); other subjects including behavior and social-emotionally (Exhibit I-9-12); speech and language (Exhibit I-13-15); and in occupational therapy (Exhibit I-16-22).

The Private School was an appropriate educational placement for the Student to make meaningful progress.

Equities

Even if a parent establishes a right to reimbursement under the IDEA, “courts retain discretion to reduce the amount of a reimbursement award if the equities so warrant.”^[18] In making that equitable determination, a hearing officer may consider many factors, including, inter alia, whether a parent’s unilateral withdrawal of her child from the public school was justified, whether (1) the parent provided the Department with adequate notice of the withdrawal, (2) the amount of private-school tuition was reasonable, (3) the parent should have availed herself of need-based scholarships or other financial aid from the private school, and (4) there was any fraud or collusion in generating (or inflating) the tuition to be charged to the Department, or the arrangement with the school was fraudulent or collusive in any other respect. ^[19]

There is no evidence that the Parent obstructed or was uncooperative in the District’s efforts to meet its obligations under the IDEA. The DOE did not present evidence that the Parent hindered its efforts to provide the Student a FAPE.

Parent cooperated with the DOE by attending the IEP meeting, providing, and paying for the evaluation that was utilized by the DOE (Exhibit D), making the Student available for all evaluations the DOE proposed, and by making her concerns known through timely statutory notice pursuant to 20 U.S.C. 1412 (a) (10) (C) (iii) (I) (bb). (Exhibit J). The District contends that since the contract was signed on 3.1.23, months prior to the IEP meeting and issuance of the placement letter, the Parent never intended to send the Student to public school (IHO-4-7-8). The Parent established that the contract was signed to secure a spot for the Student, aware that if an appropriate place was recommended for the Student, she could terminate the contract without penalty (Tr. 35, 41-42, Exhibit E). Therefore, there is no basis for a reduction in the amount of the requested tuition, already lessened by virtue of the Parent receiving a partial scholarship for tuition (Tr.37, 41-42, Exhibits E and F).

The undersigned has reviewed the parent’s remaining contentions and finds them to be either unnecessary to this decision, without merit, beyond my jurisdiction, too vague to be of use, or without sufficient basis in the record for a finding and award of relief. Accordingly, any relief not specifically discussed in this decision is denied, and all the Parent’s remaining claims not discussed herein are dismissed.

ORDER

NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED THAT:

(1) Parent’s claim for tuition funding for the Private School for the 10-month 2022-2023 school year in the amount of $50,730.00 for the Student’s unilateral placement is GRANTED and the District shall reimburse the Parent in the amount of $50,730.00 for said tuition payments.

Dated: August 9, 2023

Michelle S. Babbitt

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.

DISTRICT EVIDENCE

1. Individualized Education Program 5.3.22 25 pages DOE

2. Prior Notice Package 6.15.22 5 pages DOE

PARENT EVIDENCE

A. Due Process Complaint 2.18.23 6 pages

B. Individualized Education Program 5.19.21 19 pages

C. [REDACTED] Reports school year 2021-2022 27 pages

D. Neuropsychological Evaluation 10.21 19 pages

E. Contract 22-23 school year. 8 pages

F. Tuition Statement 1.4.23. 1 page

G. Schedule 22-23 school year 1 page

H. Attendance 22-23 school year 1 page

I. Progress Reports 22-23 school year 22 pages

J. Notice of Unilateral Placement 8.22.22 2 pages

K. DOE Response to Exhibit J 9.12.22 1 page

L. Due Process Response 8.14.23 3 pages

M. Affidavit of [REDACTED] 9 pages

N. Affidavit of [REDACTED] 6.6.23 3 pages

IHO EXHIBITS

1. Email from IHO to Parties re Prehearing Conference 10.12.22 2 pages IHO

2. Prehearing Conference Summary and Order 10.21.22 10 pages IHO

3. Status Conference Summary and Order 11.14.22 3 pages IHO

4. Status Conference Summary and Order 12.12.22 3 pages IHO

5. Status Conference Summary and Order 1.23.23 3 pages IHO

6. Status Conference Summary and Order 3.7.23 4 pages IHO

7. Email Exchange with Parties re [REDACTED] 9.24.22-9.30.22, 2.24.23,3.1.23 50 pages IHO

8. Closing Brief of the DOE 6.22.23 15 pages IHO

9. Closing Statement and Memorandum of Law of Parent APPENDIX Information Term Used In FOFD [REDACTED] Student [REDACTED], Esq. Parent Attorney/Representative [REDACTED], Esq. District Attorney/Representative [REDACTED] Private School [REDACTED], Parent Witness # 1 [REDACTED], Director of Witness # 2 Early Childhood at Private School 6.22.23 28 pages IHO

Footnotes

[1] See NYS Educ. Law § 4404(1)(c); R.E. v. N.Y.C. Dept. of Educ., 694 F.3d 167, 184-185 (2d Cir. 2012), C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 835-836 (2d Cir. 2014).

[2] See 20 U.S.C. § 1400 (d)(1) (A)

[3] See 34 C.F.R. § 300.13

[4] See Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).

[5] Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2017).

[8] Endrew F. Mr. P. & Mrs. P. v. West Hartford Board of Educ., 885 F.3d 735 (2d Cir. 2018). R.E. v. N.Y.C. Dep’t of Educ., 694 F.3d 167, 185-186 (2d Cir. 2012); see also, L.O. v. N.Y.C. Dep’t of Educ., 822 F.3d 95, 111 (2d Cir. 2016) (holding that the district could not meet its burden of proof to demonstrate sufficient evaluative material was relied upon creating an IEP without testimony regarding such).

[9] See A.M. v. New York City Department of Education, 845 F.3d 523 (2d Cir. 2017) (reliance on the views of DOE witness, which were against the clear consensus of the substance of the evaluative materials present at the CSE meeting and the views of student’s evaluators and educational instructors, was error); S.B. v. New York City Department of Education, 117 F. Supp. 3d 355 (S.D.N.Y. 2015) (reliance upon testimony of one DOE representative, who never met student, over evidence by student’s own teachers and therapists, “flies in the face of reason”); W.S., individually and on behalf of A.S., v. New York City Dep’t of Educ., 188 F. Supp.3d 293 (S.D.N.Y. 2016) (placement offered by the DOE did not bear a reasonable relation to the needs of student where placement was based on opinion of a DOE representative in contrary to the evidence at IEP meeting).

[10] Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 12, 15 (1993); see also Sch. Comm. Of Burlington v. Dept. of Educ., 471 U.S. 359, 370 (1985).

[11] See Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112, 115 (2d Cir. 2007); Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998).

[12] Gagliardo, 489 F.3d at 112

[13] Gagliardo, 489 F.3d at 112, quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006)

[14] See Frank G., 459 F.3d at 364-65.

[15] Frank G., 459 F.3d at 364; see also Gagliardo, 489 F.3d at 115.

[16] See 20 U.S.C. § 1401(29); Educ. Law § 4401(1); 34 CFR 300.39(a)(1); 8 NYCRR 200.1(ww); Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 (2d Cir. 2014).

[17] See Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65.

[18] Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 246-47, 129 S. Ct. 2484, 174 L. Ed. 2d 168 (2009).

[19] See E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014).