New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 597518 - NYC: 246815

FINDINGS OF FACT AND DECISION

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

Date of Birth: [REDACTED]

School District: NYC DOE

Hearing Requested by: [REDACTED] (“Parent(s)”)

Request Date/Date Complaint Filed: 3/21/2023

Date(s) of Hearing: 5/31/2023

6/1/2023 Actual Record Closed Date: 6/29/2023

Date of Decision: 6/30/2023

Hearing Officer: Daniel M. Hochbaum

INTRODUCTION

This is a decision in a hearing under the Individuals with Disabilities Education Act (“IDEA”). This case concerns Student, an [REDACTED]-year-old Student who attends the Private School (“Private School”). Ex. A:1. In the Parent’s Due Process Complaint (“DPC”), the Parent alleged that the Department of Education (“DOE”) failed to provide the Student a Free Appropriate Public Education (“FAPE”) for the 2022-2023 school year. Ex. A.

The Parent requests an award of tuition from January-June 2023 for Student’s attendance at the Private School, a private program that is not approved by the Commissioner of Education for the education of students with disabilities. Id at 3. The Parent also seeks compensatory Occupational Therapy, compensatory Speech-Language Therapy, and compensatory Assistive Technology (“AT”) training for the Student and Parent. Ex. A:6; TrA. 32. The Parent further seeks a vocational assessment and various assistive technology devices and software programs. Id.

As discussed below, I find that the DOE denied the Student a FAPE for the 2022-2023 school year.

I find that the Private School offers the Student specially designed instruction sufficient to meet the Student’s needs, and the equities support the Parent’s request for payment of tuition for the 2022-2023 school year. I further find that the vocational evaluation and AT devices and software are warranted, and that the Student is entitled to some, but not all, of the requested compensatory services based on the period of claims in this case.

PROCEDURAL HISTORY

The Parent filed this case on 3/21/2023. Ex. A:1. The DOE appointed me to hear this case on 3/22/2023. I conducted Pre-Hearing Conferences (“PHCs”) with the Parties on 4/21/2023 and 5/9/2023. PHC Tr. 4, 43. The DOE did not file a response to the DPC as required by law. 34 C.F.R. § 300.508(e).

I held a hearing on 5/31/2023 and 6/1/2023. TrA. 1, TrB. 1.^[1] It was a closed hearing. Parent’s Attorney represented the Parent. TrA. 4. DOE Attorney represented the DOE. TrA. 4.

During the hearing, the DOE stated that it was not introducing any documents into evidence nor was it calling any witnesses to testify, but that it was not conceding that it denied the Student a FAPE. TrA. 11. The DOE Attorney waived her opening statement but made an oral closing statement on the record. TrA. 31, TrB. 5.

The Parent argued that the DOE denied the Student a FAPE for the 2022-2023 school year, that the facts supported an order for tuition to the Private School, and that the facts also warranted compensatory services. I accepted Parent’s exhibits A-P into the record. TrA. 15.^[2] The Parent called the following witnesses, each of whom submitted testimony through affidavits: the Speech-Language Pathologist (“SLP”), the Psychologist, the Occupational Therapist, the Director of the Private School, and the Parent. Ex. I, K, L, N, O. The DOE Attorney cross examined the Parent and did not question any other witness. TrA. 26, 27, 28, 52. The Parent’s attorney delivered an oral closing statement. TrB. 9.

FINDINGS OF FACT

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

The Student is an [REDACTED]-year-old who attends the Private School. Ex. B:1; N:3. The Student is diagnosed with Autism Spectrum Disorder with accompanying language and cognitive impairment, Dysarthria, Developmental Coordination Disorder, and Mixed Disorder of Scholastic Skills. Ex. G:13. The DOE classified him as a student with Autism. Ex. B:1.

The Student has many educational difficulties related to his diagnoses. The Student has language delays; difficulties with socialization, sensory sensitivities, repetitive motor behaviors; reduced tolerance for frustration; challenges with sustained attention and adaptive functioning; expressive and receptive language deficits; fine/gross motor weaknesses; and academic delays in reading, writing, and math. Ex. K:4, 5.

Prior to attending the Private School, the Student attended the State-Approved Non-Public School (“NPS”). Ex. O:2. The DOE conducted an IEP meeting for the Student on 6/14/2022 and recommended that the Student remain at the NPS in a classroom of 10 Students, one teacher, and two paraprofessionals (10:1:2) for the 2022-2023 school year. Ex. B:18, 26. The DOE also recommended that the Student receive Occupational Therapy 2x30 1:1, Physical Therapy 1x30 1:1, Speech-Language Therapy 1x30 1:1, and Speech Language Therapy 2x30 in a group. Id at 18. Finally, the DOE recommended Parent Counseling and Training one time per month for 60 minutes. Id.

Following the IEP meeting, the Student underwent various evaluations including a Speech-Language Evaluation and Assistive Technology (“AT”) Assessment on 6/22/2022 by the SLP (Ex. C, D), an Occupational Therapy Evaluation on 7/7/2022 by the Occupational Therapist (Ex. E), and a Neuropsychological Evaluation on 7/25/2022 by the Psychologist (Ex. G). I understand that these evaluations were awarded via a prior hearing order based on information presented at the hearing. TrA.

21. According to the Psychologist, the Student presented with underdeveloped receptive language skills, profound weaknesses in visual perception, design copying, and graphomotor control/accuracy, difficulty planning and performing speech movements (which results in difficulty speaking), challenges with other fine motor tasks (such as drawing and academic writing), and severe delays in all academic areas. Ex K:5-

6. The Student is also non-verbal and uses an AT device to communicate. TrA. 67.

The SLP reviewed the Student’s records and IEPs (including the 6/14/2022 IEP) and determined that the Student had not and was not receiving appropriate services and supports based on her testing. Ex. D:3, 14; I:2. The SLP agreed with the Psychologist and stated that the Student “presents with severe delays in receptive language, expressive language, literacy skills, and pragmatic (social) skills.” Ex. D:12. The SLP determined that while the Student was receiving two 30-minute sessions per week of speech therapy, he needed “3x/week individually for 40 minutes per session [and] 2x/week in a group of 3 total students for 40-minutes per session” based on his deficits. Id at 14. The SLP also explained that the Student required 414 hours of compensatory speech and language services because “[the Student] has not received an appropriate speech-language therapy mandate in the past (1x30:1 and 1x30:unspecified group) [ ] and prior interventions were not sufficient enough for him to make meaningful progress.” Id. The SLP, during her AT assessment, also recommended various AT devices and software including:

• an iPad Air with an attachable strap and the ProLoQuo2Go speech-generating application (which was to be dedicated solely for the purpose of being a Speech Generating Device)

• an additional iPad Air to allow him to access the curriculum

• an Apple Pencil so that the Student can continue to practice handwriting skills

• a shockproof case with a keyboard and pencil holder is recommended to protect the device • noise canceling headphones to be used with audio books and text-to-speech output • applications including IXL, Phonics Genius, HB Phonological Awareness, iRead, Epic!, RazKids, Trace Letters, Trace Numbers, Clicker Writer, and Myiogym

Ex. C:11-12. The SLP also recommended 40 hours of training for the Parent and the Student’s academic support staff “in the use of Partner Augmented Input as an intervention technique, how to program and troubleshoot the device, and how to implement, carryover, and generalize device use across settings.” Id at 12. Finally, the SLP recommended 20 hours of training for the Student on how to use these tools. Id at 13.

The Occupational Therapist also reviewed the Student’s records and IEPs (including the 6/14/2022 IEP) and determined that the Student had not and was not receiving appropriate services and supports based on her testing. Ex. L:4-5. The Occupational Therapist found that the Student had deficits in “visual motor integration, visual perceptual skills, grasping and manual dexterity skills, motor planning and coordination, graphomotor (handwriting) skills, keyboarding and computer skills, sensory processing skills, ADL and iADL skills, [and] executive functioning skills.” Id at 4. The Occupational Therapist further stated that “[t]hese deficits impact [the Student’s] ability to participate in age appropriate academic, social/play, and self-care activities across school, home, and community settings.” Id. The Occupational Therapist stated that the Student needed “3 OT sessions per week at 45 minutes per session” as opposed to his IEP mandate of 2x30 at the time. Id; B:18. The Occupational Therapist also stated that the Student needed 184 hours of compensatory OT, and that she derived this number considering the Student’s then current need and the “insufficient OT mandates of 2x30 for the 2020-2021 and 2021-2022 school years, and minimal to no access to his independent living skills curriculum in the 2020-2021 and 2021-2022 school years.” Ex. L:4. The Occupational Therapist also recommended “an updated Vocational assessment to determine [the Student’s] interest, skills, and abilities towards pre-vocational, vocational, and transition planning.” Id.

The Student remained in the NPS for the start of the 2022-2023 school year. Ex. O:2. However, the Parent believed that the 6/14/2022 IEP’s program would not allow the Student to make progress and decided to enroll the Student at the Private School for the remainder of the year. Id. On 11/30/2023, the Parent signed an enrollment contract with the Private School. Id. The tuition to the private school is $93,325 for the Student’s period of enrollment. Ex. M:1. On 12/26/2022, the Parent, through her attorney, sent the DOE a Ten-Day Notice (“TDN”) stating that she disagreed with the IEP and intended to enroll the Student at the Private School for the remainder of the 2022-2023 school year and request that the DOE pay for the Student’s tuition. Ex. O:2. The Student began attending the Private School in January 2023. Id.

The Private School is an “independent not-for-profit special education school focused largely on the needs of students on the Autism spectrum in need of a highly individualized program of Applied Behavior Analysis (“ABA”).” Ex. N:2. According to the Director, the Private School uses ABA to collect data, analyze it, and determine which teaching methods are “most effective in changing a student's learning, behavior, communication, and participation in the larger community.” Id. The Private School provides an ABA program which includes small classes, delivered by ABA-trained staff and Board Certified Behavior Analysts (“BCBAs”). Id. The Private School also offers related services including speech-language and occupational therapy. Id.

The Private School provides the Student with an 8:1:4 class ratio with one head teacher and four ABA instructors. Ex. N:3. The Student receives a six-hour school day with five hours every day of 1:1 instruction. Id at 2. The Student’s lead teacher is a certified special and general education teacher and a BCBA. Id at 3. Of the Student’s four ABA instructors, two of the instructors have bachelor’s degrees in psychology, one has a bachelor’s degree in clinical neuroscience, and one has a degree as a Doctor of Medicine. Id. The Student receives speech and language therapy two times individually per week for 45 minutes each, one weekly lunch consultation for 30 minutes, and one weekly transdisciplinary group for 60 minutes. Id at 4. The Student also receives occupational therapy individually two times per week for 45 minutes each, one weekly lunch consultation for 30 minutes to work on daily living skills, and one weekly transdisciplinary group for 60 minutes. Id at 3. The Private School further conducted assessments of the Students needs and developed annual goals and short-term objectives for the Student based on the assessments. Id at 4.

CONCLUSIONS OF LAW AND ANALYSIS

The IDEA states that children with disabilities are entitled to a FAPE. 20 U.S.C. § 1400 (d)(1)(A). To provide a Student with a FAPE, a school district must develop an Individualized Education Program (“IEP”) that consists of specialized instruction and related services designed to meet a student’s unique needs and must then implement the services in the IEP. 34 C.F.R. § 300.13. The law states that a school district offers 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).

In IDEA due process hearings in New York, school districts have the burden of proof – including the burden of production and burden of persuasion – except that a parent or person in 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. NY Educ. Law § 4404(1)(c)).

This case concerns three issues: (1) whether the DOE provided the Student with a FAPE for the 2022-2023 school year, (2) whether the Student is entitled to tuition reimbursement for the 2022-2023 school year from January-June, and (3) whether the Student is entitled to various compensatory services and an evaluation. I will analyze each in turn.

I. Unilateral Placement

As noted above, in this case the Parent alleges that the DOE denied the Student a FAPE for the 2022-2023 school year. Ex. A. The Parent requests that the DOE pay for the Student’s tuition to the Private School from January 2023-June 2023. Ex. A:6; TrA. 32.

When a parent believes that a school district has failed to provide a student with a FAPE, a parent may unilaterally enroll the child in a private school and seek tuition payment from the school district by filing a due process complaint. Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 376 (2d Cir. 2014) (quoting Reyes ex rel. R.P. v. New York City Dep’t of Educ., 760 F.3d 211, 215 (2d Cir. 2014)). The due process complaint may address “any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education.” 20 U.S.C. § 1415(b)(6)(A).

A district must pay for the cost of a student’s tuition at a private school if the three prongs of the Burlington/Carter test are met: (1) the DOE denied the student a FAPE; (2) the private placement is appropriate; and (3) the equities favor an order of tuition. See Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S. 359, 367 (1985); Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 12-15 (1993).

a. Prong I

The Parent alleged that the DOE committed a broad range of procedural and substantive violations including that the DOE: (1) failed to draft a legally adequate Present Levels of Performance in the 6/14/2022 IEP, (2) failed to develop specific, meaningful, and measurable goals in the IEP, (3) did not provide the Student with appropriate related services and supports to address his reading issues, (4) did not offer an IEP reasonably calculated to enable the Student to make meaningful progress appropriate in light of the child’s circumstances, and (5) did not properly evaluate the Student. Ex. A.

As to Prong I of the Burlington/Carter standard, the DOE failed to meet its burden at the hearing. According to the Supreme Court, “a reviewing court may fairly expect [public] authorities 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.” Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. 386, 404 (2017). Here, the DOE did not call any witnesses or present any exhibits to support its decisions. TrA. 11. While the Parent – not the DOE – submitted the IEP into evidence, the IEP alone, without supporting testimony could not rebut the Parent’s allegations. Ex. B. For example, while the DOE recommended Speech Language Therapy two times per week, the SLP stated that the Student needed five sessions per week, and the DOE did not offer any explanation as to why the Student would still be receiving a FAPE with fewer sessions. Ex. B:18; I:2. Likewise, the Occupational Therapist stated that the Student needed three sessions of OT per week for 45 minutes as opposed to the DOE’s offer of two times per week for 30 minutes, and the DOE did not present any information justifying its decision.^[3] Ex. B:18; L:4. Similarly, the DOE did not offer anyone to defend the goals or explain whether or not the Student needed an updated vocational evaluation. TrA. 11. As such, I must find that the DOE failed to offer the Student a FAPE for the 2022-2023 school year.

b. Prong II

A private school placement must be “proper under the Act.” Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370. This means that the Private School must offer an educational program which meets the student’s special education needs. 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). Parents seeking reimbursement “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate.” Gagliardo, 489 F.3d at 112. “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.’” Gagliardo, 489 F.3d at 112, quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006).

Parents need not show that the placement provides every special service necessary to maximize the student’s potential. Frank G., 459 F.3d at 364-65. Instead, they need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a student with a disability, supported by such services as are necessary to permit the child to benefit from instruction. Gagliardo, 489 F.3d at 112 citing Frank G., 459 F.3d at 364-65. A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student. 20 U.S.C. § 1401(29); Educ. Law § 4401(1); 34 C.F.R. § 300.39(a)(1); 8 NYCRR § 200.1(ww); Hardison, 773 F.3d 386.

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement. Frank G., 459 F.3d at 364. No one factor is necessarily dispositive in determining whether parents’ unilateral placement is reasonably calculated to enable the child to receive educational benefits. Id. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, 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. Id. 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.” Id; see also Gagliardo, 489 F.3d at 115.

In this case, the Private School met the Frank G. standard for the 2022-2023 school year and provided educational instruction “specially designed to meet the unique needs” of the Student that enabled him to make progress. First, the Private School is appropriate because it provides the Student with small class sizes. Second, the Private School developed individualized goals for the Student and provides him with individualized instruction. Third, the Private School provides the Student with the related services that he needs. Fourth, the Private School provides the Student with instruction from trained teachers. Finally, the Student is making progress at the Private School. I will discuss each in turn.

First, the Private School is appropriate because it provides the Student with small class sizes and groups him with similarly functioning peers. Small class sizes can be a factor weighing in favor of the appropriateness of the parent’s unilateral placement. Frank G., 459 F.3d at 365 (citing Knable v. Bexley City Sch. Dist., 238 F.3d 755, 768 (6th Cir. 2001)). Small class sizes at a unilateral placement “come[] within the IDEA definition of ‘special education,’ namely, ‘specially designed instruction . . . to meet the unique needs of a child.’” Frank G., 459 F.3d at 365 (citing 20 U.S.C. § 1401(29)). The Private School placed the Student in a classroom with eight students, one lead teacher and four ABA instructors. Ex. N:3. However, the Private School witness explained that the Student attends a six-hour day with five hours per day of 1:1 instruction, including “groups where he requires 1:1 instructional support from an ABA instructor or lead teacher and one hour of instruction for lunch and leisure skills with a 2: 1 instructional ratio.” Id. This small class size and the copious 1:1 instruction clearly meets the requirements for Prong II under Frank G.

Second, the Private School is appropriate because it developed individualized goals for the Student and provides him with individualized instruction. When a teacher at the unilateral placement adapts instruction (for example, working one-on-one with the student, creating a communications book, giving the student extra time to complete work, allowing the student to work in isolated areas of the classroom, adapting tests to allow the student to take them orally), these factors weigh in favor of the appropriateness of the parent’s unilateral placement. Frank G., 459 F.3d at 365-66. The Director explained that the Private School reviewed prior reports and conducted a “criterion-based assessment” of the Student to develop individualized annual goals and short-term objectives for the Student. Ex. N:4. Specifically, the assessment showed that the Student has difficulty with applied academics, communication skills, social skills, and self-care/grooming skills, and that the School developed corresponding programs to address these areas within his daily programming. Id at 5. For example, to teach the Student to understand and apply math concepts, goals have focused on teaching him to budget money when presented with a variety of costs and a budget sum of up to $10. Id at 8. The record clearly reflected that the Private School developed an individualized program for the Student which targeted his deficits, and this was one factor among others that supports a finding that the Private School is appropriate under Prong II.

Third, the Private School is appropriate because it provides the Student with the related services that he needs. As discussed above, the Student requires speech-language therapy and occupational therapy, and the Private School provides him with both. Specifically, the Student receives speech language therapy two times individually per week for 45 minutes each, one weekly lunch consultation for 30 minutes, and one weekly transdisciplinary group for 60 minutes, with 1:1 support from an ABA instructor in his classroom during groups. Id at 4. The speech sessions address “increasing his receptive, expressive and pragmatic language needs as well as expanding his play skills.” Id. Likewise, the Student receives OT individually two times per week for 45 minutes each, one weekly lunch consultation for 30 minutes to work on daily living skills, and one weekly transdisciplinary group for 60 minutes with 1:1 support from an ABA instructor in his classroom during groups. Id. The OT sessions focus on fine motor and motor planning skills as well as sensory processing. Id. As such, the Private School is providing and educational program which meets the student’s special education needs, inclusive of his related service needs. Gagliardo, 489 F.3d at 115.

Fourth, the Private School is appropriate because it provides the Student with instruction from trained teachers. The law in this circuit is that “a private placement need not provide certified special education teachers…for the disabled student,” but the Private School nevertheless ensures that its teachers have the training and specialization necessary to teach the Student based on her needs. Frank G., 459 F.3d at 364. As noted above, the Student’s lead teacher has a master’s degree in special education and Applied Behavior Analysis, is a BCBA, and is a certified special and general education teacher in the state of New York. Ex. N:3. Additionally, the Student has four ABA instructors in the classroom, and two of the instructors have bachelor’s degrees in psychology, one has a bachelor’s degree in clinical neuroscience, and one has a degree as a Doctor of Medicine. Id. Additionally, at the time the Private School hired them, all the staff in the Student’s class received initial training in the principles of behavior analysis, behavior management, and data collection and analysis. Id. Moreover, once the training was finished, each instructor had opportunities to observe other staff members and practice collecting and graphing data. Id. All of the staff within the Student’s classroom also receive ongoing training and supervision, including biweekly faculty training and observations from the lead teacher, training team, and/or a supervisor. Id at 4. Finally, the Student’s SLP and Occupational Therapist are also licensed in New York. Id. As such, the Private School has staff that are sufficiently trained to meet the Student’s needs.

Finally, the Private School is appropriate because the Student is making progress at the Private School. Significant educational progress can be a factor weighing in favor of the appropriateness of the parent’s unilateral placement. Frank G., 459 F.3d at 365 (citing Knable, 238 F.3d at 768). While a student’s progress at the private placement is not by itself sufficient to determine whether a placement is appropriate, that progress is a relevant factor in assessing the appropriateness of the placement. Weaver v. Millbrook Cent. Sch. Dist., 812 F. Supp. 2d 514, 523 (S.D.N.Y. 2011). In this case, the Student is making significant progress across multiple domains. In reading, the Director noted that the Student is reading text and then answering subsequent wh-questions such as who, what, when and where to demonstrate his comprehension of what he has read, and that he has mastered six texts from a leveled reader series. Ex. N:7-8. In math, the Student has mastered responding to questions to interpret data presented within tables and bar graphs: Id at 8-9. Regarding communication skills, the Student demonstrated improvement in his ability to gain the attention of an adult and convey information. Id at 9. The Private School is also addressing self-care with the Student, and he has improved his ability to follow visual schedule to complete multiple tasks including, for example, now being able to follow a visual schedule to wash his face, put on deodorant, use mouthwash, brush his hair, and put on lotion. Id at 10. With respect to communication using his AT, while he previously made mands/requests by typing on AAC device with a large page set which was time consuming, he now has increased the frequency of mands/requests using the typing function with a QWERTY keyboard. Id at 7. Finally, the Director also explained that he “has demonstrated improvement in his ability to complete vocational tasks, follow classroom routines, and use his AAC to communicate his needs.” Id. Therefore, the Student is making progress at the Private School, and this is another factor that contributes to a finding that the Private School is appropriate for the Student for the 2022-2023 school year.

The weight of the evidence establishes that Student’s individual special education needs were (and are) addressed by the Private School, and that the instruction offered there was “reasonably calculated to enable the child to receive educational benefits.” Frank G., 459 F.3d at 364. As a result of the above, I find that Parent has satisfied her burden in proving that the Private School offered an educational program which met Student’s needs under Prong II of the Burlington/Carter standard.

c. Prong III

Under the third and final prong of the Burlington/Carter test, courts consider “equitable factors” relevant to an order of tuition. Gagliardo, 489 F.3d at 112. “[A] major consideration in deciding whether the third factor is satisfied is whether the parents have cooperated with the [Department] throughout the process to ensure their child receive[s] a FAPE.” Bettinger v. New York City Bd. Of Educ., 2007 WL 4208560, at *6 (S.D.N.Y. Nov. 20, 2007). Specifically, equitable considerations include the parents’ participation in IEP meetings, visits to the proposed school placements, and notification of their unilateral placement decision to the DOE. See D.A. v. New York City Dep’t of Educ., 769 F. Supp. 2d 403, 419-20 (S.D.N.Y. 2011).

In this case, the Parent cooperated with the DOE and is entitled to full reimbursement. First, the Parent participated in the 6/14/2022 IEP meeting. Ex. B:26; M.H. v. N.Y.C. Dep’t of Educ., 685 F.3d 217, 254 (2d Cir. 2012) (holding that when a parent attends the IEP meeting, this weighs in favor of the parent’s request for a tuition award under Prong III of the Burlington/Carter test). Additionally, on 12/26/2022, the Parent provided the necessary ten-days’ notice (“TDN”) of her concerns with the DOE’s offer of FAPE for the Student for the 2022-2023 school year and her intent to unilaterally place the Student in the Private School. 34 C.F.R. § 300.148(d)(1)(ii); Ex. P:1. The DOE did not submit evidence at hearing describing its response to the TDN.

The Parent signed an enrollment contract with the Private School on 11/30/2022. Ex. H. The DOE did not make any argument that the tuition should be reduced on account of the Parent signing the contract on 11/30/2022. TrA. 31, TrB. 5-9. The total cost of tuition for the Student’s program at the Private School for the 2022-2023 school year was $93,325 which reflects tuition for January 2023 through June 2023. Ex. N:16. I find this cost to be reasonable, especially in light of the amount of 1:1 instruction the Student receives and the highly specialized training of the instructors.

After considering the record at hearing, I find that the equities support Parent’s claim for the cost of tuition and order the DOE to fully fund the Student’s tuition to the Private School for the 2022-2023 school year (i.e., from January 2023 through June 2023).

II. Compensatory Relief

The Parent in this case is also seeking an evaluation, compensatory services, and an assistive technology device with software. TrA. 31-32.

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). Compensatory education can serve as a “replacement of educational services the child should have received in the first place,” and any award “should aim to place disabled children in the same position they would have occupied but for the school district’s violations of IDEA[.]” Reid v. Dist. of Columbia, 401 F.3d 516, 518 (D.C. Cir. 2005); see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 (11th Cir. 2008) (holding that “[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act”).

Additionally, as noted above, the DOE bears the burden of proof – including the burden of production and burden of persuasion – on compensatory claims in New York. NY Educ. Law § 4404(1)(c). In compensatory cases in New York, it is “incumbent on the district to develop the hearing record to establish the appropriate amount of relief needed to remediate the district's failure.” Application of the New York City Department of Education, Appeal No. 14-014 (SRO NY 2014). “It is not persuasive for the district to simply fault the parent’s request for relief without also explaining its own view of what type of compensatory education relief would be appropriate to remediate the district's failure to provide the student with a FAPE.” Id.

At hearing, the Parent introduced evaluations and affidavits in support of each of the services and supports she was requesting. Ex. C, D, E, I, L. The DOE made two arguments in opposition to the Parents request for compensatory services: (1) that the DPC only alleged violations related to the 2022-2023 school year, and the IDEA does not permit compensatory service for the same period of time that the Student is unilaterally enrolled at a Private School as this would constitute “double relief,” and (2) that Parent did not sign a DOE consent form for evaluations in December 2021 and, therefore, the Parent was not entitled to compensatory relief. TrA. 55-56; TrB. 7. I will address these arguments and then address each area of requested service.

First, the DOE argued that I cannot order compensatory services for the 2022-2023 school year because the Student was unilaterally enrolled, but this argument was both legally incorrect and did not accurately match the facts of this case. The DOE cited two cases from the Third Circuit for the proposition that a court cannot award compensatory services when a student has been unilaterally enrolled, but those two cases were cited and rejected by the Southern District of New York which stated that awarding compensatory services and tuition for a private school are not mutually exclusive. VW v. N.Y.C. Dep’t of Educ., 2022 U.S. Dist. LEXIS 147630, at *14 (S.D.N.Y. Aug. 17, 2022) (citing Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 445 (2d Cir. 2015) (concluding that “appropriate equitable relief” can include “reimbursement or compensatory education (or both) for the full value of services that the educational agency was required to fund”). Additionally, in this case, the Student was entitled to services on a 12-month basis, and the Parent did not unilaterally place the Student at the Private School until January 2023. Ex. B:19, O:2. Therefore, at a minimum the Student could be entitled to compensatory services from July 2022 through December 2022, prior to him beginning at the Private School.

Second, the DOE argued that the Student was not entitled to compensatory relief because the Parent failed to sign a consent for the DOE to evaluate the Student in December 2021. TrA. 55-56. However, in the questioning, the DOE explained that it sent this consent from following the Parent’s request for an Independent Educational Evaluation (“IEE”), but that the DOE was seeking the Parent’s consent for the DOE, not an independent evaluator to perform the testing. TrA. 57. The IDEA and State and federal regulations allow a parent to request an IEE at public expense if the parent disagrees with a school district’s evaluation. 20 U.S.C. § 1415 (b)(1); 34 C.F.R. § 300.502(b); 8 NYCRR § 200.5(g)(1); D.S. by M.S. and R.S. v. Trumbull Bd. of Educ., 975 F.3d 152, 158 (2d Cir. 2020) (“[a] parent is entitled to a publicly funded IEE if the parent disagrees with an evaluation obtained by the public agency”) (internal quotation marks and citations omitted). When a parent disagrees with a school district’s evaluation and requests an IEE at public expense, the school district “must, without unnecessary delay,” either (1) ensure that an IEE is provided at public expense; or (2) initiate an impartial hearing to establish that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria. 34 C.F.R. § 300.502(b)(2)(i)-(ii); 8 NYCRR § 200.5(g)(1)(iv) (emphasis added). Here, the Parent was not obligated to agree to a DOE evaluation after requesting the IEE. Instead, the DOE was required to either grant the IEE or file for due process, and the regulations do not allow the DOE to circumvent the process by requesting consent for it to evaluate the Student in lieu of an IEE. Id. Therefore, in this case, whether the Parent consented to a DOE evaluation makes no difference and does not impact their request for compensatory relief.

a. Vocational Assessment

At hearing, the Parent requested a vocational assessment. TrA. 18. The Parent based this request on the OT’s recommendation for “an updated Vocational assessment to determine [the Student’s] interest, skills, and abilities towards pre-vocational, vocational, and transition planning.” Ex. L:4. The DOE did not introduce any evidence showing that it conducted an appropriate vocational evaluation of the Student in the last three years. TrA. 11, 31; TrB. 5. Therefore, the DOE did not carry its burden, and I award a compensatory private vocational assessment by a provider of the Parent’s choosing as outlined in the order below.

b. Speech Generating Device and Software

The Parent also requested an iPad Air (to be dedicated solely for the purpose of being a Speech Generating Device) with an attachable strap and the ProLoQuo2Go speech-generating software. TrA. 32. In her evaluation, the SLP recommended that the Student be provided with an iPad Air along with the ProLoQuo2Go speech-generating application “to be used as a supplemental communication system in order to target the necessary growth and development of [the Student’s] expressive language and receptive language skills.” Ex. I:6. The SLP further explained that the ProLoQuo2Go application would provide the Student “with the opportunity to access vocabulary without exhausting copious amounts of time on understanding the symbolic representations of the pictures.” Ex. I:6. Finally, the SLP explained that an iPad Air was necessary because the Student’s current device, which the Parent provided, was “too small and does not allow for a wide array of keys to be used (e.g., he is currently using an array of 20 keys, whereas he evidenced the ability to navigate 77 keys given a bigger device).” Ex. I:6. Ultimately, the point of the larger device was to allow the Student to communicate faster and more appropriately. Ex. I:6.

The DOE argued that the Student was not entitled to this relief because the Student is now at the Private School and the DOE was not responsible for enhancing the services at the Parent’s unilateral placement. TrB. 8-9. However, the DOE’s argument misses the point because the Student was in need of this equipment and software prior to enrolling at the Private School and the DOE did not provide it. Ex. B; C:11-12. The SLP evaluated the Student just a week after the DOE IEP meeting on 6/14/2022, and yet the SLP determined the that the Student needed this service whereas the DOE did not. Even if the DOE were to argue that it did not have the benefit of the evaluation at the time of the IEP meeting, the DOE did not introduce any evidence that it conducted an appropriate AT evaluation of the Student before the meeting nor did it introduce any evidence about what it did when it received the evaluation and this recommendation. TrA. 11, 31; TrB. 5. Therefore, I find that this equipment (the iPad Air and strap) and the software (ProLoQuo2Go) are appropriate as compensatory services for the DOE’s failure to recommend these supports at any point from 6/14/2022 (the date of the IEP meeting) until January 2023 (when the Student enrolled in the Private School) and order the equipment and software as outlined below.

c. Second iPad, related equipment, and software

The Parent also requested an additional iPad Air, an Apple Pencil, shockproof case with keyboard and pencil holder, noise canceling headphones and the following applications: IXL, Phonics Genius, HB Phonological Awareness, iRead, Epic!, Raz-Kids, Trace Letters, Trace Numbers, Clicker Writer, and Myiogym. TrA. 32.

With respect to equipment, the SLP recommended the iPad to “allow [the Student] to access the curriculum” and further explained that device was an appropriate tool to support his learning because the Student is familiar with touch screen devices and “the compact design will allow for portability so that [the Student] can carryover skills in various settings (e.g., classroom, therapy sessions, home, etc.).” Ex. I:7. The SLP recommend an Apple Pencil so that the Student can continue to practice handwriting skills. Ex. I:7. Additionally, the SLP recommended a shockproof case with a keyboard and pencil holder to protect the iPad and assist the Student in traveling with the iPad, keyboard, and Apple Pencil. Ex. I:7. Finally, the SLP recommended noise canceling headphones to be used with audio books and text-to-speech output. Ex. I:7.

Regarding applications, the SLP stated as follows:

5. Reading:

a. IXL is required to assist [the Student] with acquiring ELA skills as well as skills in other subject areas including science, social studies, math, and Spanish.

b. Phonics Genius is required to assist [the Student] with learning letter/sound patterns when decoding words.

c. HB Phonological Awareness is required for [the Student] to phonological awareness skills.

d. iRead is required for [the Student] to practice reading comprehension skills.

e. Epic! individual membership is needed to support literacy skills by downloading a plethora of digital books to read.

f. Raz-Kids individual license is needed in order to access leveled readers.

6. Writing:

a. Trace Letters and Trace Numbers are required to practice handwriting skills.

b. Clicker Writer is required to learn how to write using appropriate grammatical markers and syntax.

7. Math and other subjects: a. IXL is recommended for additional academic practice across subjects.

b. Myiogym is required to shape non-speech sounds into functional speech sounds.

Ex. C:12-13.

In this case, the DOE did not carry its burden with respect to the equipment and services. The DOE did not provide any evidence that the Student did not need these services either at the time of the IEP meeting or at any time between then and when the Student began at the Private School. TrA. 11, 31; TrB.

5. Again, even though the DOE did not have the evaluation that recommended these supports at the time of the meeting, the Student had the same needs at the time of the meeting on 6/14/2022 and the time if the evaluation on 6/22/2022. Ex. B, C. Additionally, the DOE did not deny that it received the AT evaluation that recommended these supports nor did it explain what actions, if any, it took upon receiving these recommendations. TrA. 11, 31; TrB. 5. As such, I order that the Student receive this equipment as compensatory services for the DOE’s failure to provide them at the 6/14/2022 IEP meeting or at any time until the Student’s unilateral placement.

d. 20 Hours of AT Training for the Student

Additionally, the Parent requested 20 hours of AT training for the Student regarding the use of these AT tools. TrA. 33. The SLP recommended this training to “ensure confident access to these tools.” Ex. C:13. The DOE did not take any position about these compensatory services, nor did the DOE offer any information to suggest that they were unnecessary. TrA. 11, 31; TrB. 5. Given the variety of tools the SLP recommended, the Student will undoubtedly need training on how to use each application. As the DOE did not carry its burden and the Parent presented information that the tools and training were necessary, I find that this compensatory training is appropriate and order it as outlined below.

e. 40 Hours of AT Training for the Parent and Academic Support Staff

The Parent also requested 40 hours of compensatory AT training for the Parent and the Student’s academic support staff. TrA. 32. This request was based on the following recommendation from the SLP:

[A]ll of his team members including his mother, sister, and academic support staff require

40 hours of training (based on approximately 2x30/week for 40 weeks) in the use of Partner Augmented Input as an intervention technique, how to program and troubleshoot the device, and how to implement, carryover, and generalize device use across settings.

Ex. C:12. Again, the DOE did not take a position on these hours, nor did the DOE explain why it did not recommend this service on the Student’s IEP or at any point prior to him beginning at the Private School. TrA. 11, 31; TrB. 5. For example, the service could have been recommended in the following sections: as part of Parent Counseling and Training, in the Assistive Technology Devices and/or Services section, and/or in the Supports For School Personnel on Behalf of the Student section. Ex. B:18-19. As such, I find that the DOE’s failure to provide these services denied the Student a FAPE and order them as compensatory services. ^[4] f. 414 Hours of Compensatory Speech-Language

The Parent further requested 414 hours of compensatory Speech-Language services. TrA. 32. The Parent based this request on the recommendation of the SLP who found that “[the Student] has not received an appropriate speech-language therapy mandate in the past (1x30:1 and 1x30:unspecified group) in the past and prior interventions were not sufficient enough for him to make meaningful progress.” Ex. D:14. The SLP made the above recommendation in both her evaluation and her affidavit. Ex. I:4. The SLP appears to have made this recommendation based on her review of the Student’s 6/1/2021 and 6/2/2020 IEPs as well as her review of the 6/14/2022 IEP (which she mentioned in the affidavit and must have reviewed following her report as it does not mention that latest IEP). Ex. D:3, 1; I:5.

The SLP’s unrebutted opinion was that the Student required five sessions per week of SpeechTherapy all along, but only received two sessions. Ex. D:14; I:4. The SLP testified that she “derived [the recommended compensatory hours] from a qualitative clinical approach, considering [the Student’s] past service mandates, growth shown in available documents and academic reports, current needs, and the time he will need to ‘catch up’ to make him whole given the insufficient mandates he has received in the past.” Ex. D:14.

The SLP’s statement strongly implies that she based her recommendation for 414 hours on multiple years of violations, not just the 6/14/2022 IEP, and any years prior to 2022-2023 are outside the scope of the Parent’s DPC. Ex. A:1. However, neither the DOE, who bore the burden, nor the Parent, who bore no burden, explained what an appropriate compensatory award for violations related to 2022-2023 alone would be.

As noted above, the Student was educated under the IEP from July 2022-December 2022. Ex. B; O:2. Once the Student began attending the Private School, he began receiving more speech-language therapy than under his IEP but slightly less than the SLP recommended (albeit allocated differently). Ex. N:4. Specifically, the SLP recommended 3x40 minutes individually and 2x40 group (200 minutes per week). Ex. I:4. The Private School provided the Student with Speech-Language Therapy two times individually per week for 45 minutes each, one weekly lunch consultation for 30 minutes, and one weekly transdisciplinary group for 60 minutes (180 minutes). Ex. N:4.

The DOE did not present any information that the services in the 6/14/2022 IEP were reasonably calculated to provide the Student with a FAPE (or that they were delivered at all). TrA. 11, 31; TrB. 5. As such, I am awarding compensatory services as follows:

• 200 minutes per week for the 22 school weeks from July-December5 totaling 73.33 hours

• An additional 46 hours as additional qualitative hours for the DOE’s failure to begin providing the higher five sessions per week from the start of the 2022-2023 school year.

In total, I order the DOE to provide 119.33 hours of compensatory speech-language services as outlined below.

g. 184 hours of Compensatory Occupational Therapy Services

Finally, the Parent requested 184 hours of compensatory OT services. TrA. 32. The Parent based this request on the recommendation of the Occupational Therapist who recommended this amount based on the Student’s “current needs and the time he will need to make up for a lack of appropriate intervention based on the plan of care/goals in prior years, including insufficient OT mandates of 2x30 for the 2020-2021 and 2021-2022 school years, and minimal to no access to his independent living skills curriculum in the 2020-2021 and 2021-2022 school years.” Ex. E:18.

As noted above, the Student was receiving 2x30 of OT under the 6/14/2022 IEP as well. Ex. B:18. The Occupational Therapist believed that the Student should have been receiving 3x45 of OT at the time of her evaluation, and the DOE did not introduce any evidence that it considered this recommendation or any explanation as to why it failed to implement this recommendation. Ex. L:4. Additionally, the DOE failed to introduce any evidence that the 2x30 services from July-December 2022 were reasonably calculated to provide the Student with a FAPE (or that the services were even delivered) and therefore did not carry its burden with respect to the Parent’s allegation that the Student was denied a FAPE and was owed compensatory services. TrA. 11, 31; TrB. ^[5].

Neither party introduced clear evidence as to what amount of compensatory service would put the Student back in the position he would have occupied but for the denial of FAPE during the 2022-2023 school year. The DOE, who bore the burden, did not introduce any evidence. TrA. 11, 31; TrB. 5. The Parent introduced information from the Occupational Therapist, but the calculation was based on two years that were outside of the period of claims in the Parent’s DPC. Ex. A:1; L:4. Nevertheless, because the violations were the same in 2022-2023 as they were in the prior years, I deem it appropriate to use this information to arrive at a proper award for 2022-2023. One year of compensatory services per the Occupational Therapist’s calculation is 92 hours. Ex. L:4. Pro-rating that amount for the time that Student spent at the NPS under the inappropriate IEP equals 44 hours (2 hours per week for 22 weeks). However, based on my review of the Student’s records, I also deem it appropriate to add an additional 23 hours for the DOE’s failure to begin the services in the appropriate amount at the start of the school year and determine that the Student will need these additional hours to “catch up” to where he would have been had he been offered the appropriate amount of services at the start of the 2022-2023 school year. Therefore, I order 67 hours of compensatory occupational therapy as outlined below.

For the reasons explained above, I find that the record supports the Parent’s request for the compensatory services, and I order the services as outlined below.

ORDER

Based upon the above Findings of Fact and Conclusions of Law, it is hereby ordered: (1) The DOE shall, within 35 days of this Order, assign an individual from its Impartial Hearing Order Implementation Unit (“IHOIU”) to serve as a contact person for the Parent regarding the implementation of this Order. The IHOIU contact person shall provide their name, direct phone number, and email address to the Parent and the Parent’s attorney within 35 days of the date of this Order. The contact person shall respond to any inquiry by the Parent (or her attorney) concerning the implementation of this Order within 2 business days.

(2) Within 35 days of the date of this Order, the DOE shall directly pay the Private School $93,325 for the cost the Student’s tuition. The DOE shall not require any documentation that is not already in the hearing record to issue payment to the Private School.

(3) The DOE shall pay for a Vocational Evaluation to be conducted by a provider of the Parent’s choosing at the provider’s customary rate. The DOE shall pay the provider within 35 days of receipt of an invoice and a copy of the final evaluation. The evaluation shall include information about the Student’s interests, aptitude, and abilities in all areas of need and how each need impacts the Student’s readiness for post-secondary (1) employment, (2) education, and

(3) independent living. The evaluation report shall include specific recommendations for all relevant sections of the IEP, including proposed management needs, draft measurable annual goals, and proposed time for direct post-secondary instruction in the “Recommended Special Education Programs and Services.” (4) Within 5 days of receiving the Vocational Evaluation, the DOE shall reconvene the Student’s IEP team to consider the evaluation and determine whether any changes to the Student’s IEP are appropriate. The IEP team shall include at least one individual from the school the Student is attending at that time.

(5) Within 35 days of the date of this Order, the DOE shall provide the Student with an iPad Air (to be dedicated solely for the purpose of being a Speech Generating Device) with an attachable strap and the ProLoQuo2Go speech-generating software. The Student shall have access to the Assistive Technology listed herein until the end of the school year in which the Student turns

21.

(6) Within 35 days of the date of this Order, the DOE shall provide the Student with an additional iPad Air, an Apple Pencil, a shockproof case with keyboard and a pencil holder, and noise canceling headphones. The Student shall have access to the Assistive Technology listed herein until the end of the school year in which the Student turns 21.

(7) Within 35 days of the date of this Order, the DOE shall load the following applications onto the Assistive Technology listed in 6, above: IXL, Phonics Genius, HB Phonological Awareness, iRead, Epic!, Raz-Kids, Trace Letters, Trace Numbers, Clicker Writer, and Myiogym. The Student shall have access to the Assistive Technology listed herein until the end of the school year in which the Student turns 21.

(8) The DOE shall provide the Student with a bank of 20 hours of compensatory Assistive Technology training on the use of the equipment and software mentioned in 5-7, above. The compensatory services will be delivered by a provider of the Parent’s choosing at the provider’s customary rate. The bank of hours shall expire 6 months from the date of this Order.

(9) The DOE shall provide the Parent and the Student’s School Staff with a bank of 40 hours of compensatory Assistive Technology training in the use of Partner Augmented Input as an intervention technique, how to program and troubleshoot the devices above, and how to implement, carryover, and generalize device use across settings. The compensatory services will be delivered by a provider of the Parent’s choosing at the provider’s customary rate. The bank of hours shall expire 9 months from the date of this Order.

(10) The DOE shall provide the Student with a bank of 119.33 hours of compensatory Speech-Language Therapy. The compensatory services will be delivered by a licensed Speech-Language Therapist of the Parent’s choosing at the provider’s customary rate. The bank of hours shall not expire.

(11) The DOE shall provide the Student with a bank of 67 hours of compensatory Occupational Therapy. The compensatory services will be delivered by a licensed Occupational Therapist of the Parent’s choosing at the provider’s customary rate. The bank of hours shall not expire.

(12) The DOE shall pay the provider(s) for the services in 8-11, above, within 15 days of receipt of both:

a. Session notes for each session indicating the specific provider’s name, date of service, start and end time of each session, a paragraph describing the skills taught to the Student (or Parent) during each session, and measurable data/information regarding the Student’s progress during the session (if the session is for the Student).

b. An invoice for the services provided and accompanying sworn affidavit attesting that the services billed for were provided.

(13) If the Parent requests assistance finding a provider to provide the above services at any time, the DOE must locate 3 providers who are ready, willing, and able to begin providing the services to the Student, according to the terms of this order. If the Parent presents a good faith basis for rejecting the 3 providers, the DOE must locate 2 additional providers from which the Parent may choose. The DOE shall not be required to identify more than 5 providers in any given 6-month period. Nothing stated here prevents the Parent from locating and utilizing a provider of the Parent’s own choosing.

SO ORDERED.

DATED: 6/30/2023

/s Daniel M. Hochbaum

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 B – DOCUMENTATION ENTERED INTO THE RECORD

PARENT EXHIBITS

A. Due Process Complaint 3/20/23 7 pages

B. IEP 6/14/22 27 pages

C. Assistive Technology Evaluation 6/22/22 14 pages

D. Speech/Language Evaluation 6/22/22 16 pages

E. Occupational Therapy Evaluation 7/7/22 20 pages

F. Private School Program Description 7/21/22 12 pages

G. Neuropsychological Evaluation 9/14/22 17 pages

H. Private School Tuition Agreement 11/30/22 5 pages

I. Affidavit of Speech-Language Pathologist 4/27/23 14 pages

J. Attendance Records 5/1/23 1 page

K. Affidavit of Psychologist 5/2/23 9 pages

L. Occupational Therapist Affidavit 5/3/23 5 pages

M. Tuition Affidavit 4/26/23 1 page

N. Private School Director Affidavit 5/22/23 16 pages

O. Parent Affidavit 5/22/23 3 pages

P. Ten-Day-Notice Letter 12/26/22 2 pages

DOE EXHIBITS

1. None N/A N/A

IHO EXHIBITS

I. None N/A N/A

Footnotes

[1] There are two transcripts for this case. TrA refers to the hearing on 5/31/2023 and TrB refers to the hearing on 6/1/2023.

[2] A detailed list of the admitted exhibits is attached as Appendix B, “Documentation Entered Into the Record,” to this decision.

[3] Even though the two evaluators made their recommendations following the IEP meeting, this does not change the analysis. The evaluators evaluated the Student shortly after the IEP and were considering the Student’s functioning as documented in the IEP and as demonstrated during their testing. As such, both the IEP team and the evaluators were considering the effectively the same student, and the DOE did not explain why (as was their burden to do) it looked at the Student’s needs and recommended one set of services whereas the evaluators looked at the same student and recommended far more support.

[4] The Parent did not explain why the Student’s adult sister needed to receive the training. There are copious references to the Student’s sister in the exhibits, and it appears that she accompanied the Parent to every evaluation of the Student and is heavily involved in his education. Ex. C:1, 2, 12; D:1, 2; E:1, 2, 8, 10, 14; G:1, 2, 3, 4; I:2, 5; K:3, L:2; N:6. While the Student’s sister does not have any rights under IDEA, the DOE did not object the sister receiving the training, and I see no reason why the Student’s sister cannot attend the training as long as the trainer does not charge an additional amount for her participation.

[5] The DOE’s 12 Month/ESY program ran from July 5-August 12, 2022, totaling 6 weeks. See Extended School Year Services for July and August available at https://www.schools.nyc.gov/learning/special-education/supports-and-services/extended-school-year-services-for-july-and-august (last accessed 6/13/2023). The DOE also had 16 other instructional weeks from September-December 2022, totaling 22 weeks. See NYC Department of Education School Year Calendar 2022–2023 available at https://www.schools.nyc.gov/docs/default-source/default-document-library/parent-facing-calendar-2022-23 (last accessed 6/13/2023).