New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 597448- NYC: 246749

FINDINGS OF FACT AND DECISION

Student’s Name: Redacted

School District: REDACTED

Impartial Hearing Officer: Michelle S. Babbitt

Date of Filing: 3.17.23, DPC amended on 5.1.23

Hearing Requested by: Parent

Date of Hearing: 7.18.23 and 8.9.23

Record Close Date: 8.25.23 Date of Post Hearing Written 8.23.23 Summations:

NAMES AND TITLES OF PERSONS WHO APPEARED ON 7.18.2023:

For the Student:

Redacted (hereinafter referred to as “Parent’s representative”) Redacted, Parent (hereinafter referred to as “Witness #1)

For the Department of Education (“DOE”): Redacted, Esq., Agency Attorney (hereinafter referred to as “District’s representative”)

NAMES AND TITLES OF PERSONS WHO APPEARED ON 8.9.2023:

For the Student:

Redacted (hereinafter referred to as “Parent’s representative”)

For the Department of Education (“DOE”): Redacted, Esq., Agency Attorney (hereinafter referred to as “District’s representative”)

Date of Decision: 8.30.23

BACKGROUND AND PROCEDURAL HISTORY

Petitioner filed a Due Process Complaint on 3.17.23 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 3.20.23. I held a Status Conference on this matter on 4.17.23. The matter was initially scheduled for a Prehearing conference but based on the statement from the Parent’s representative that she would be filing an amended DPC (within days to one week), the conference was converted to a status conference (IHO Exhibit 1). An Amended Due Process complaint was accepted by the District on 5.1.23 (the initial and amended due process complaints, together, the “DPC”). I held a prehearing conference on 6.16.23. The District representative stated that she was still investigating the case. Therefore, I directed that the DOE 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 Parent and me by the close of business (5:00 p.m.) on 6.27.23. The parties selected 7.18.23 from 11:00 a.m.-2:00 p.m. for the hearing on the merits. The matter was marked FINAL for hearing. Parent anticipated putting on two witnesses (the parent, and one witness from the Private School) and stated that she intends to submit affidavits in lieu of direct testimony (IHO Exhibit 2).

On 6.28.23 the District sent an email stating that “I am so sorry for the delay - the DOE will not be calling any witnesses but will be resting on documents it will timely disclose. The DOE reserves its right to challenge the appropriateness of the student’s unilateral placement and argue the equities in the DOE’s favor. We also reserve the right to call rebuttal witnesses” (IHO Exhibit 3).

On 6.28.23 the District presented a subpoena for documents for signature. I asked Parent’s representative if she had any objections to the subpoena and to let me know by sending an email to me by noon on 6.30.23. Parent’s representative never responded to my inquiry. I modified the subpoena, signed it, and sent it to the District representative and the Parent’s representative on 6.30.23 (IHO Exhibit 7 and Tr. 1 4-5).

Participating in the hearing were Parent’s representative and the District’s representative.

Tr= reference to transcript from hearing, with citation to relevant page numbers.

HEARING

At the beginning of the 7.18.23 hearing, the parties had a discussion regarding the subpoena that was presented to me by the District. The District representative was unfamiliar with the mode of service and did not follow up with the Private School until one day prior to the hearing. I tried to ascertain what documents were critical to the District that had not been produced in the Parent’s disclosure packet. It appeared that most documents requested by the subpoena were produced by Parent through disclosure. I advised the District representative that if she identified any additional documents through cross-examination, she was permitted to request the production of those documents (Tr. 5-18).

The District representative stated they were conceding Prong 1 (Tr.18). The District representative made the following opening statement:

The DOE will not be putting on witnesses or presenting a case in this matter. The DOE disclosed two documents, the IEP in place at the beginning of the school year dated 3/23/2021. That's DOE Exhibit 1. The DOE also had disclosed a placement notice. That's Exhibit 2, dated 6/8/2021. The DOE is disclosing these to show that there was an IEP in placement in effect when the parent decided to unilaterally place. The DOE's position is the Parent will not be able to show that the unilateral placement is appropriate and that the equities are in its favor. Thank you.

(Tr.20-21). Initially, the District stated that it was not conceding FAPE. I directed that the District was required, in its written summation to “brief how you've shown that you've -- that the DOE has delivered FAPE by virtue of its documents. That's your burden, and so you're going to have to show that. You don't have any witnesses to discuss these documents, so you'll give me the law that will support your position and you'll do a deep dive into the documents.” After considerable conversation, the District conceded FAPE, noting that it would be difficult to brief the issue without witness testimony (Tr. 21-24). The District did not affirmatively assert any Prong III issues, but reserved its rights, should issues come up on cross-examination (Tr. 25-26).

The Parent made a brief opening statement (Tr.24-25).

The District offered two exhibits into evidence. Exhibits 1 and 2 were admitted into evidence, with no objection from the Parent (Tr. 26-27). Parent did not send their exhibits to this tribunal when they were sent to the District. Parent sent its exhibits to the tribunal the day prior to the hearing, in contravention of the mandate in the PHC (Tr. 27-28 and IHO Exhibit 2). The Parent also failed to send an exhibit list (Tr. 28-31). Parent sought to admit Exhibits A through M into evidence. The objections to the admission of the documents by the District were overruled as the objections went to the weight to be given to the document, rather than their admissibility. Exhibits A through M, inclusive, were admitted into evidence. (Tr.31-43). The Parent had sent unsigned, undated and unnotarized affidavits to the District and the tribunal. Those documents were not marked as exhibits. The Parent, however, was afforded the right to authenticate the documents at hearing and introduce them into evidence (Tr. 43). Apparently, the Parent’s representative had sent a notarized affidavit to the District and this tribunal on 7.17.23 at 4:09 p.m. (Tr. 51). The District objected to the admission of the affidavit as it was disclosed in an untimely manner. The objection was sustained and the Parent, who was present at the hearing, testified directly (Tr. 51).

The hearing continued on 8.9.23.

Parent and the District submitted written summations and closing briefs on 8.23.21(IHO Exhibits

4 and 5).

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.

Witness # 1 testified that the Student had attended the Private School for three years prior to the 21-22 school year at issue (Tr.56, 97-98). The Student has been classified with a Speech or Language Impairment (Exhibit C-1). Witness #1 testified the Student has “a strong language delay,” “his reading comprehension was really very poor,” he has “attention” problems and socially, he “had a very hard time with just interacting appropriately with children his age” (Tr. 59). The Student had difficulty understanding what was expected of him for homework assignments (Tr. 68-69, 100-101). Witness #1 did not have a clear picture of the Student’s challenges for the 21-22 school year and stated that his problems were the same over the school years-the need for repetition and organization, attention deficit and speech and language delays (Tr. 70-71). Witness #1 opined that the Student’s writing was not “on par” for his age. The Student had difficulty holding a writing instrument and his vocabulary was not on grade level. The Student had difficulty enunciating words (Tr. 74-76). Witness #1 testified that the Student received speech, occupational therapy, and counseling at the Private School (Tr. 77). Witness #1 stated that the Student improved in math, but “still [was] not able to do the problem solving.” His comprehension also improved (Tr. 78).

Witness #1 did not remember if she toured the recommended school (Tr.85-86). Witness #1 did not know when the ten-day notice was sent to the District (Tr. 88, 94).

Parent’s representative apparently had not sent the Parent’s documents to Witness #1, and did so during the hearing (Tr.89-90).

Parent’s representative did not have a witness from the Private School ready to testify and asked for an adjournment of the matter. The District objected:

Yeah, I would object to any extension. We scheduled this hearing way back in June. There were subpoenas issued, I timely disclosed, the rules are clear, five business days ahead. I heard her conversation as well. It seemed to me that she never even spoke to the teacher, which leads me to believe that that teacher hadn't -- that proposed affidavit was just drafted by Redacted with no teacher input.

I would object to any extension, I mean, my calendar is extremely filled at this point. I'm sure yours is, too, it's just the nature of the way things are going.

(Tr. 111). Over the District’s objection I granted a continuance of the hearing to the Parent, stating that the adjournment was the final courtesy to the Parent (Tr.111-112). The parties agreed to continue the hearing on 8.9.23 and the case was marked final (Tr.114-115, 121). Parent’s representative was also directed to let the District and the tribunal know if parent was not going to produce any witnesses within one week prior to the 8.9.23 hearing date. The witness from the Private School was directed to appear by live testimony on 8.9.23 (Tr. 121-122). The District was directed to advise the Parent and this tribunal by 7.28.23 if they intended to put on a rebuttal witness (Tr. 122-123).

After the Parent’s testimony the parties again addressed the subpoena and the District noted that there was nothing in the record to support Parent’s testimony that the Student was receiving counseling; the District asked for session notes and an attendance record. Parent’s representative was directed to request those documents directly from the Private School. If no such documents exist, and the Parent misspoke, Parent’s representative was directed to advise the District and the tribunal (Tr. 117). Parent’s representative was also directed to produce the Private School’s written curriculum to the extent it exists, and if it does not exist, to notify the District and this tribunal (Tr.118-119). The Parent’s representative was also directed to secure any classroom observations of the Student and turn them over to the District prior to the 8.9.23 hearing date (Tr. 119-120). Parent’s representative failed to comply with these directives.

On 8.8.23 at 2:11 p.m. the Parent’s representative sent an email: “The witness for [the Student’s] case (IHO 246749) tomorrow is a 10-month special education teacher at the [Private School] Program. She is currently on an overseas vacation but planned to participate at this hearing tomorrow utilizing her cell phone. She has learned that it is not a possibility because of technology issues. I respectfully request that you consider adjourning tomorrow’s hearing to a date when the teacher is more readily available to participate in this matter.”

I asked the District for their position on Parent’s application. The District responded:

If the witness is not available today, it is the District’s position that the record should be closed and no further adjournments permitted. We were supposed to proceed with both parties’ cases on July 18. Then as a courtesy we scheduled another date. We just received notice yesterday that the witness was not available when we all agreed we would be informed of such event within a week of the hearing. This is the second time the school witness was scheduled to testify and then suddenly not available. If the witness is still not available, we ask the IHO draw a negative inference towards the case as it relates to the appropriateness of the unilateral placement.

I have been informed I received mail at the office-I am waiting for the mail room to open to see if it is the subpoenaed records. In any event, if it is those records it would be one day before the hearing they were sent. I would ask the IHO draw a negative inference towards parent’s case.

For all these reasons, I would ask if the witness is not available today we close the record and move on to closing briefs and that Redacted confirm this is the case (in light of the IHO’s email below) ahead of time.

(IHO Exhibit 6, See Tr. 130-134, 137-141). The District’s application not to extend any further continuances or adjournments of the hearing was addressed by the parties at the hearing and I granted the application. The Parent was forewarned that the marking was final for the continuance on 8.9.23. The Parent’s representative was directed to let the District and this tribunal know one week in advance if Parent was not going to present any additional witnesses. Parent also failed to let the District and the Parent know in advance about documents concerning counseling, the curriculum, and a classroom observation. Parent rested. (Tr.142-144).

At the hearing Parent’s representative stated that the Student received counseling, but she did not have any records supporting that statement. Parent’s representative stated that the answer as to whether there is a written curriculum is not straightforward, but Parent had no documents showing a curriculum. Parent’s representative stated that “[t]here are documents in the evidence that were submitted, that are viewed by the school and the teacher as curriculum documents and that…” (Tr. 136). However, no witness was presented to discuss and explain the documents.

The District withdrew their exhibits and conceded Prong I (Tr.144).

I requested written summaries but advised the parties not to brief Prong I as it has been conceded. ^[2] I advised the Parent’s representative that she had to show how Parent met its Prong II burden, and to provide case law which supports such showing, absent a witness from the Private School. Both parties were told not to make conclusory statements such as “we have Exhibit A, B, C, D, E, F which show that the program is appropriate. There has to be a detailed explanation based upon facts” (Tr.146).

Considering the foregoing, and as more fully discussed below, I find that a) the DOE did not offer the Student a FAPE for the 2021-2022 school year; and b) the Parent did not meet their burden to show that the Private School offers the Student specially designed instruction sufficient to meet the Student’s needs.

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. ^[3]

Prong I

The IDEA provides that children with disabilities are entitled to a Free Appropriate Public Education ("FAPE").^[4] 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”).^[5] 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. ^[6] 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.” ^[7]

As to Prong I of the Burlington/Carter standard, the DOE failed to meet its burden at the hearing. The District representative stated they were conceding Prong 1 and withdrawing their exhibits (Tr. 18, 144).

Parent had alleged the following in its DPC:

For the school year in question The New York City Department of Education failed to evaluate [the Student] thoroughly and appropriately on a timely basis.

The Department of Education failed to develop a timely and appropriate IEP that is substantively and procedurally valid.

The Department of Education did not recommend an appropriate program and placement for [the Student] in a timely manner for the 2021-2022 school year.

The parent is not in agreement with the recommendation for a 12:1:1 special class.

The Parent informed the Department of Education during her son’s IEP meeting that she was not agreement with their recommendations and did not feel that her son could master the goals on his IEP in such a class (Exhibit A-2).

The District did not address any of the foregoing deficiencies alleged by the Parent.

The DOE failed to provide a witness to explain its recommendations or respond to the deficiencies alleged by Parent.^[8] Additionally, the DOE withdrew their exhibits, including Student’s March 2021 IEP.

Prong II

A private school placement must be "proper under the Act."^[9] This means that the private school must offer an educational program that meets the student's special education needs.^[10] Parents seeking tuition reimbursement “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate.”^[11] 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.” ^[12]

Parents need not show that the placement provides every special service necessary to maximize the student's potential.^[13] 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.”^[14] A private placement is appropriate if it provides instruction specially designed to meet a student’s unique needs. ^[15]

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. ^[16]

General information about a unilateral program is insufficient to establish that the unilateral program is specifically designed to meet a student’s needs. ^[17]

Witness #1 was the sole witness who testified on behalf of the Parent. Witness #1 did not provide details as to the Student’s challenges and how the Private School and its curriculum addressed his needs. Her testimony regarding the Student was largely conclusory and Witness #1’s testimony were statements that transcended several school years. As noted by the District, Parent presented testimony largely based on her feelings regarding her child’s disability and what she believed her child needed. While the DOE is sympathetic, the law does not accept a parent’s feelings as credible evidence of a Student’s needs and the appropriateness of a unilateral placement in meeting those needs. When the Parent was not relaying her feelings, Parent was relaying what the Unilateral Placement told her. The Parent relayed what was reported to her by the Student’s teacher as to what was concerning regarding the Student’s functioning in the classroom. T.67, line 20-25; T.68, line 1.

According to the Parent, the Student had trouble with reading comprehension, sitting without fidgeting, following directions, hearing what was going on and reporting back. See id. There was no testimony from the Student’s actual teachers confirming the Student’s areas of need as reported by the Parent. The Parent stated, “writing was definitely, in my opinion, below his age-appropriate level” (emphasis added). T.74, lines 12-

14. There was no testimony to confirm whether writing, was in fact, an area of need for the Student within the IDEA.

(IHO Exhibit 4-8). The District cited to several decisions to support its argument that the evidence in the record, which is devoid of any testimony from the Private School, is not sufficient for the Parent to meet its Prong II burden:

As in Appeal No. 21-015, there was no credible testimony from the Unilateral Placement to show how the Unilateral Placement was addressing each of the alleged concerns. Any testimony presented by the Parent in this regard should not be afforded any weight as the Parent was not in classroom instructing this Student or observing him, and she did not present any personal knowledge of the actual instruction offered to the Student at the Unilateral Placement.

As in Appeal No. 21-075, supra, there was no testimony regarding the specific program developed for this Student. While Parent submitted an Individualized Education Plan into evidence (see Parent Exhibit H), there was no testimony as to where this Individualized Education Plan came from, how it was developed, how it meets the Student’s needs and whether it was even implemented. As in Appeal No. 08-015, supra, parents have further failed to present any credible evidence to suggest the methodologies used in the classrooms, assessments used, or how the Student participated in the daily schedule. While the Parent admitted a Teacher Report (Parent Exhibit F) and Speech Language Progress Report (Parent Exhibit G), there was no testimony regarding the content of these documents or the relevancy. Parent Exhibit F includes a description of the “Child’s Behavior in the Following Contexts”, but there is no other documentation or testimony that describes how the Student’s behaviors described therein are specifically addressed by the Unilateral Placement. (IHO Exhibit 4-8). ^[18]

Although the Parent testified that the Student received counseling, speech, and occupational therapy the schedule and enrollment contract in evidence does not include counseling. I found the testimony of the Parent to be too vague as to be probative or instructive in discerning how the Private School met the Student’s needs This tribunal does not have the benefit of a witness from the Private School to discuss the educational program and services or how the School appropriately addressed the Student’s needs(Tr.77, Exhibits E and K).^[19] The Teacher’s Report notes the Student has “significant language deficits that require remediation and accommodation” yet no witness was produced to address how the Private School addressed those deficits. Certain actions are listed in the Teacher’s report but without an explanation as to when a certain action is employed for the Student to address which deficit, many questions remain unanswered (Exhibit F-1). Witness #1 did not testify to this issue. Similarly, the Speech and Language Report speaks to the Student’s deficits and goals, but does not specify what methodology is being utilized to reach the individual goals (Exhibit G). The Individualized Education Plan drafted by the Private School dated 11.21.21 shows that no objective evaluations, test, or assessments were conducted in formulating the Plan (Exhibit H). It is unclear whether the Individualized Education Plan dated 5.5.22 is for the 21-22 school year or the 22-23 school year (Exhibit I). The documents raise questions and without a witness to answer questions or explain policies and protocol, there is not a sufficient basis to find that the Private School provided an appropriate educational placement for the Student.

Parent’s representative had the opportunity to detail how the record supported Parent’s argument that the Private School was an appropriate educational placement for the Student. Parent’s representative did not go through the evidence and show how it supported the Prong II argument. Rather, contrary to my explicit directive at the hearing, Parent’s representative summarily stated:

There is a considerable amount of information available concerning [the Student] and his special education program. The record contains important information concerning the teacher’s qualifications and the instruction Michael received. The Progress Report (a Parent’s Exhibit is a recitation of [the Student’s] accomplishments during the 2021-2022 school year.

The DOE presented no evidence or testimony and acknowledged that they did not offer a FAPE on the record. The Parent believes that there is sufficient information available to demonstrate that [the Private School] provided [the Student] with an appropriate special education for the year in question.

(IHO Exhibit 5-7). This tribunal need not craft arguments on behalf of any party.

The evidence contained in the hearing record does not convincingly or objectively show that the Private School provided the Student with specially designed instruction to address his unique special education needs during the 2021-2022 school year. Parent did not meet their Prong II burden to demonstrate that the Private School was an appropriate educational placement for the Student and accordingly tuition funding is denied. This tribunal need not consider any equitable arguments considering this determination.

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 2021-2022 school year for the Student’s unilateral placement is DENIED.

Dated: August 30, 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 (withdrawn at hearing)

Exhibit Title Date Pages 1 Individualized Education Program 3.23.21 23 2 Prior Written Notice 6.8.21 11

PARENT EVIDENCE

A. Amended Impartial Hearing Request 4.17.23 4 pages

B. Program Description 2 pages

C. Individualized Education Program 1.4.22 20 pages

D. Ten Day Notice 8.23.21 2 pages

E. Class Schedule 21-22 1 page

F. Teacher’s Report 11.29.21 2 pages

G. Speech/Language Progress Report 11.21.21 2 pages

H. School IEP 11.21.21 4 pages

I. School IEP 5.15.22 3 pages

J. Affidavit of Payments 6.20.23 1 page

K. Enrollment Contract 9.1.21 1 page

L. Parent Proof of Payment 21-22 21 pages

M. Attendance Record 21-22 1 page

IHO EXHIBITS

1. Status Conference 4.17.23 2 pages IHO

2. Prehearing Conference Summary and Order 6.16.23 9 pages IHO

3. Email from DOE 6.28.23 1 page IHO

4. DOE’s Closing Brief 8.23.23 12 pages IHO

5. Parent’s Post-Hearing Closing Statement 8.23.23 8 pages IHO

6. Email exchange with the Parties 8.8.23 -8.9.23 3 pages IHO

7. Email exchanges with the parties with signed 6.28.23subpoena APPENDIX Information Term Used In FOFD Redacted Student Redacted Parent Educational Advocate Redacted, Esq. District Attorney/Representative Redacted Private School Redacted, Parent Witness #1 6.30.23 6 pages IHO

Footnotes

[2] Notwithstanding my directive, the Parent’s representative provided case law as to Prong I (IHO Exhibit 5-4-5)

[3] 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).

[4] See 20 U.S.C. § 1400 (d)(1) (A)

[5] See 34 C.F.R. § 300.13

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

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

[8] 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).

[9] 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).

[10] 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).

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

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

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

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

[15] 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).

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

[17] Hardison v Bd. of Oneonta City Sch. Dist., 773 F.3d 372, 387 (2d. Cir. 2014) (finding a unilateral placement inappropriate where the hearing record lacked "more specific information as to the types of services provided to [the student] and how those services tied into [the student's] educational progress," and additionally stressing the importance of "objective evidence" in determining whether a parent's placement is appropriate); L.Q. v. Northeast Sch. Dist., 932 F. Supp. 2d 467, 490 (S.D.N.Y. 2013) (rejecting parents' argument that counseling services met student's social/emotional needs absent the counselor's testimony or evidence about the counselor's "qualifications, the focus of her therapy, or the type of services provided" or how the services related to the student's unique needs); R.S. v. Lakeland Cent. Sch. Dist., 2011 WL 1198458, at *5 (S.D.N.Y. Mar. 30, 2011) (rejecting the parents' argument that speech-language therapy services met student's needs where parents "did not offer any evidence as to the qualifications of the provider of the therapy, the focus of the therapy, or when and how much therapy was provided"), aff'd sub nom, 471 Fed. App'x 77 (2d Cir. Jun. 18, 2012)).

[18] See also, Application of the New York City Department of Education, Appeal Number 21-105 (2021); Application of the New York City Dep’t of Educ., Appeal No. 21-105, 9-15; Application of the New York City Department of Education, Appeal Number 21-075 (2021); Application of the New York City Dep’t of Educ., Appeal No. 21-075, 14-23; Application of a Student with a Disability, Appeal Number 20-084 (2020); Application of a Student with a Disability, Appeal Number 08-013 (2008); Application of a Student with a Disability, Appeal Number 08-151 (2009)(IHO Exhibit 4-4-7).

[19] As in Appeal No. 20-084, supra, the hearing record lacks specificity regarding what the speech, occupational therapy and counseling sessions entailed, such as the content, methodology or interventions employed to meet the Student's needs in each respective area (IHO Exhibit 4-9-10).