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CASE NUMBER: 598301 - NYC: 247377
FINDINGS OF FACT AND DECISION
Student’s Name [1]: [REDACTED] (“Student”)
Date of Birth: [REDACTED]
School District: NYC Department of Education
Hearing Requested by: [REDACTED] (“Parent(s)”)
Request Date: Complaint Filed: 04/10/2023
Date(s) of Hearing: 06/22/2023
06/29/2023
07/05/2023
07/12/2023
07/20/2023
Actual Record Closed Date: 09/22/2023
Date of Decision: 09/22/2023
Time Sensitive: Yes
Hearing Officer: Olivia Sohmer, Esq.
INTRODUCTION AND BACKGROUND
Student is classified under the Individuals with Disabilities Education Act (IDEA) as a student with Multiple Disabilities, whose eligibility for special education supports and services is not in dispute. In the present action, Parent alleges that the District denied Student a free and appropriate public education (“FAPE”) for the 2021-2022 and 2022-2023 school years. As remedy for this denial, Parent seeks direct funding of tuition for the Private School where Parent unilaterally enrolled Student for the 2022-2023 school year, as well as provision of compensatory tutoring and related transportation costs.
For the reasons more fully discussed below, I find that Student was denied a FAPE for two years, and I order compensatory education as remedy for the first year and tuition as remedy for the second year.
PROCEDURAL HISTORY
On April 10, 2023, a due process complaint (“DPC”) was filed against the New York City Department of Education (“DOE,” “the District”) by the Counsel for the Parent(s) (“Parent”) on behalf of their child (“Student”), pursuant to the Individuals with Disabilities Education Act (“IDEA,” or the “Act”), 20 U.S.C. Section 1415(f)] and Section 4404(1) of the New York State Education Law (IHO Ex. i). [2]
On April 27, 2023, the District filed and served on Parent’s Counsel a copy of the Prior Written Notice dated November 9, 2021 as its Due Process Response (IHO Ex.ii; Tr. A: 5). [3]
The District did not arrange a meeting with the Parent during the 30-day resolution period (Tr. A: 5). The parties appeared before me on May 17, 2023 for a Pre-Hearing Conference, and again on June 6, 2023 for a Status Conference.
The Due Process Hearing commenced on June 22, 2023 and was continued on June 29, July 5, 12, and 20, 2023. The hearing was conducted virtually. Parent was present throughout the hearing, appearing from a conference room accompanied by her attorney and a Spanish-speaking paralegal from the attorney’s office. All sessions were translated for the benefit of the Parent by Language Line interpreters, except when translation of non-evidentiary proceedings was waived.
The District presented documentary evidence and the testimony of two witnesses: the DOE Special Education Teacher who was Student’s Classroom Teacher during the 2021-2022 school year (the “DOE Special Education Teacher”) (Tr. A: 60-93), and the testimony of the DOE School Psychologist who was the District Representative at the October 2021 IEP meeting (Tr. A: 105-125), after which the District rested (Tr. A: 125).
Parent also introduced documentary evidence, as well as the testimony of the Parent (Tr. A: 126-137; Tr. B: 9-37), the Founder and Director of a Tutoring Provider Agency (the “Tutoring Director”) (Tr. B: 61-90), and the Assistant Head of Private School where Parent unilaterally placed Student for the 2022-2023 school year (Tr. B: 104-125). The Parent rested (Tr. B: 127), and the District waived rebuttal (Tr. B: 91-92; 127).
The parties requested the opportunity to present written closing statements (Tr. B: 127-128), which were filed on August 28, 2023 (IHO Exs. iii, iv, v). A total of 3 extensions to the timeline were granted in this case.
JURISDICTION
The due process hearing was held, and this decision is rendered pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.
LEGAL FRAMEWORK
The IDEA is a comprehensive statutory framework established by Congress to ensure that students with disabilities are afforded a FAPE. See 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 US 49 (2005).
A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its Committee on Special Education (“CSE”) through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 [2d Cir. 2014]; R.E. v. New York City Dep't of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012]; M.H. v. New York City Dep’t of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). “‘[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP’” (Walczak, 142 F.3d at 129, quoting Rowley, 458 U.S. at 206; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]).
The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction” (Rowley, 458 U.S. at 203). However, the “IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP” (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). “The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created” (Endrew F., 580 U.S. at 388).
If a procedural violation is alleged, a hearing officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits. 20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; 8 NYCRR § 200.5[j][4][ii].
Equitable Relief: Compensatory Education and/or Services
Where there has been a denial of FAPE, a hearing officer may award compensatory education relief in the form of supplemental special education or related services (P. v. Newington Bd. of Educ., 546 F.3d 111, 123 [2d Cir. 2008]). An award of compensatory education is an equitable remedy that “should aim to place disabled children in the same position they would have occupied but for the school district’s violation of the IDEA” (Reid ex rel. Reid v. District of Columbia, 401 F.3d 516, 518 [D.C. Cir 2005]; see also P. v. Newington, 546 F.3d at 123; see also Gill v. District of Columbia, 751 F.Supp.2d 104 [D.D.C. 2010] [“whether to award compensatory education is a question for the Court's equity and jurisdiction and is not a matter of legal damages”]).
A compensatory education award can be crafted using either a quantitative or a qualitative approach based on a fact-specific inquiry. In its purest application, the quantitative approach would award a straight one-for-one replacement of the services that were denied during the period of FAPE deprivation in the form of compensatory educational services. Under the qualitative approach, the focus is on a student’s needs and is based on the specific educational deficits that resulted from the FAPE deprivation, with the compensatory award consisting of the specific services reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place (see Reid, 401 F3d at 524).
A Hearing Officer has broad discretion to award compensatory education as an equitable remedy for a Student who has been denied a FAPE. Reid, 401 F.3d at 522-23 (quoting Florence Cnty. Sch. Dist. Four v. Carter, 510 U.S. 7, 15-16, 114 S. Ct. 361, 126 L. Ed. 2d 284 (1993)). Where the District disputes the grant of compensatory relief, it is incumbent upon the District to explain its own view of what type of compensatory education relief would be appropriate. See Application of a Student With a Disability, NYSED SRO Decision 11-091 n. 10.
Burden of Proof
In IDEA due process hearings in New York State, school districts have the burden of proof, including the burden of persuasion and burden of production, 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. NYS Educ. Law § 4404(1)(c). The standard required is a preponderance of the evidence. 20 U.S.C. §1415(i)(2)(C)(iii); see also Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 121 et passim (2d Cir. 1998).
A school district may be required to pay for private tuition expenses if (1) the services offered by the District were inadequate or inappropriate, (2) the services selected by the parent were appropriate, and (3) equitable considerations support the parent's claim. School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993). These three conditions constitute the three-prong Burlington/Carter test in a tuition reimbursement case (see, e.g. M.W. ex rel. S.W. v. N.Y.C. Dep't. of Educ., 725 F.3d 131, 135 [2d Cir. 2013]).
FINDINGS OF FACT AND ANALYSIS
After a full review of the record developed herein, including the testimony of all the witnesses presented by both parties, I make the following findings of fact and conclusions of law.
Background: Student’s Need for 12-Month Programming
Before Student reached the age of 4, Parent observed that Student was not able to talk, that she was frightened of using the toilet by herself, was panicked by sounds and very scared of the dark, would get upset and say that she could not breathe when she was in the shower, and would hit herself with her hand. A pediatrician told Parent that the behavior Parent described was not normal and might be autism. The pediatrician gave Parent some forms to complete to request services (Tr. A: 127-128).
Student attended a preschool for children with speech problems (Tr. A: 129). The teachers there told Parent that Student needed a lot more assistance (Tr. A: 129-130). The following year, Student attended Pre-K in the morning, and from 2:30 in the afternoon, she attended the preschool for children with speech problems that she had attended the year before (Tr. A: 130). After that, Student attended a Public Kindergarten associated with the REDACTED School but in a different location. The Public Kindergarten class was a 10-month class with 11 children, 1 teacher, and 1 assistant (11:1+1) (Tr. A: 131).
Parent saw that Student’s grades were low and asked that Student be put in a different setting, but she was told by the school that “there [was] nothing else to do besides what she already had” (Tr. A: 132). Parent noticed that “practically, when [Student] was not going to school, she forgot everything” and so she also asked for 12-month programming, but was told that Student “didn’t need it” (Tr. A: 131-132).
The 2021-2022 School Year
In the Spring of 2021, when Student was in 3rd grade, a doctor recommended that Student be evaluated. Parent testified that this was the second time the doctor had sent a letter to the District (Tr. A: 133). A neuropsychological evaluation was completed, the report of which was dated 9/22/2021 (Ex. 5).
On October 27, 2021, an IEP meeting was held (Ex. 3-29). Student was at that time in a 12:1+1 special class at the REDACTED School, as per the previous year’s IEP (Ex. F-016). Parent did not feel that Student was making sufficient progress at the REDACTED School and did not feel that the school was taking seriously parent’s concerns about Student’s lack of progress (Tr. A: 136). Parent expressed these concerns at the October 2021 IEP. She requested summer classes and more “support for Student’s social development and security in herself” but was told that “they were not able to give more service” (Tr. A: 135, Tr. B: 13). Even though the Classroom Special Education Teacher was at the IEP meeting, Parent was told that since there was no “letter from the teacher,” Student could not receive summer classes (Tr. A: 136-137; Ex. 3-29). Parent was also told to “look outside” for counseling, since the school could not provide that service (Tr. B: 13).
The IEP generated at the October 27, 2021 meeting continued Student in the same 12:1+1 special class at the REDACTED School, with the same mandates for 1x30 individual and 1x30 group OT, and 2x30 SLT in Spanish (Ex. 3-22; F-016). Based on recommendations in the private neuropsychological evaluation obtained by Parent that Student needed counseling to address “class anxiety,” peer relationships, grasping of social cues, organization, goal setting, and timely task completion, the IEP added no individual counseling (which the school was not able to provide), but only 30 minutes per week of counseling in a group of 5 students, essentially half the class (Tr. A: 116-117; Exs. 3-7, 3-21; 5-17). Student was also enrolled in REDACTED, an after-school program from 2:30-4:15 “intended to address needs arising from learning disruption caused by the pandemic” (Ex. 1-1; Tr. B: 28). At the time, Student told Parent that the program was “boring.” Even now, when Parent asks Student what the activities were in the SERS program, “she doesn’t really answer. She just puts this face like she was about to cry” (Tr. B: 28-29). Parent called the school to ask about the program, but the office staff told Parent that “everything was fine” (Tr. B: 28, 35). When asked at the hearing how Student did as a result of the additional services, Student’s Classroom Special Education Teacher answered, “I don’t have that information available,” and testified only that Student “made progress towards all IEP goals” (Tr. B: 70-71). I find that Student did not receive educational benefit from the SERS.
During the 2021-2022 school year, Parent saw that Student did not want to go to school any more. Student was crying and telling Parent that “everything was about homework” – the teachers only said that “she had to do her homework; she had to finish her homework” (Tr. A:135). Student was tired from writing too much (Tr. A: 135). Student was unable to complete the homework from three math books issued to her in 4th Grade. When Parent went to the school in person to discuss this, she was told by a member of the office staff that this “might have been a mistake” and that they would speak to the teacher (Tr. B: 11-12).
Student would sometimes come home from school with bruises on her face and chin, and once she saw that a chunk of Student’s hair had been cut off on the front right side of her head (Tr. A: 135, Tr. B: 32). Parent never received any report from the school about any incidents (Tr. B: 25-26). Instead, Parent called the school office, and the office staff said they would speak to the teachers. When the school got back to the Parent about this, they simply told her that the children were not watched during lunch, that the children did not have access to scissors, and that they really didn’t know what had happened (Tr. A: 135; Tr. B: 26).
Parent spoke to the Classroom Special Education Teacher about her various concerns – about the bruises and about the fact that Student felt that the Teacher “became upset or angry” when Student was not able to complete her homework. The Teacher responded only that “it was fine” (Tr. B: 12). The Teacher had been Student’s Special Education Teacher during September through November of 2020, conducting remote instruction (Tr. A: 75). Then, during the school year at issue, Student joined the Teacher’s in-person self-contained 12:1+1 classroom in October 2021 and was in Teacher’s class through June 2022 (Tr. A: 65). However, Teacher’s descriptions of Student’s performance were simply recitations of the IEP goals (Tr: A:66-68, 73), and statements that Student was “on par with the peers in her class” – a self-contained special education class comprised of children who were all significantly behind their age and grade cohort (Tr. A: 79-80, 92). Teacher knew that she had spoken with Parent at the October 2021 IEP and at parent/teacher conferences during the school year, but had no recollection of any conversations in which Parent raised concerns about Student’s lack of progress (Tr. A: 71, 88).
The School Psychologist had been involved in Student’s IEP planning starting with her “Turning 5 reevaluation,” conducted the psychoeducation evaluation in May of 2021, was part of the October 2021 IEP team, and “was always available to address Mother’s concerns throughout that lapse of time” (Tr. A: 109; Exs. 3-29; 8-3; H-002).[4] Parent told the School Psychologist that Student felt too much pressure at school, and that Student would cry and resist going to school (Tr. B: 13-14).[5] Parent recalled that the School Psychologist responded that “these are things that children usually do, but [Student] was getting the help that she needed” (Tr. B: 14). The School Psychologist did not “think” Parent voiced any disagreement with the program recommendation in the IEP, even though the “Present Levels of Performance” section of the IEP, where “parent concerns” “typically” appear, clearly documents the concern of Parent and a developmental pediatrician that Student “is not making adequate progress in school” (Tr. A: 117-118; Ex. 3-5 to 3-6).
In all, and despite the Classroom Special Education Teacher’s repeated statement that Student “made growth and progress towards all of her IEP goals” (Tr. A: 65, 70-71), I find that the October 2021 IEP was not reasonably calculated to enable Student to receive educational benefits.
I further find that Student needs 12-month programming. As early as Kindergarten, Parent noticed Student’s regression when not in school, and requested 12-month services. In the 2021-2022 school year, the District observed that Student had “lost a lot of learning during the previous year due to remote instruction” (Tr: B 69) and enrolled student in not one but two cycles of SERS: from November 15, 2021 to February 10, 2022 and a second cycle after that (Ex. 1-2; Tr: B: 91). Notably, SERS services “do not replace your child’s IEP-recommended programs and services” (Ex. 1-1) and cannot cure an otherwise deficient IEP.
I find that Student was inappropriately denied 12-month programming by the IEPs governing the 2021-2022 and 2022-2023 school years (Exs. F-017; 3-22).
Adding to these deficiencies in support and services to Student was the District’s insufficient response to unexplained injury that occurred while Student was in school. The record before me is not sufficient for a finding that bullying alone sufficed to deny Student a FAPE (cf. T.K. v New York City Dep’t of Educ., 770 F.Supp.2d 289, 318 [EDNY 2011]). Nevertheless, the Community School’s response when Parent brought the incidents to their attention is further evidence on which I base my finding that the 12:1+1 placement did not appropriately address Student’s unique needs and circumstances.
In all, I find that Student was denied a FAPE for the school years 2021-2022 and 2022-2023, both of which I find should be considered and are 12-month school years.
The Requested Compensatory Relief
For this denial of FAPE, Parent seeks compensatory education in the form of 1:1 tutoring.
The Tutoring Agency Founder has a master’s degree in special education, a doctorate in education, and more than 20 years in the field of Special Education. (Tr. B: 76). Approximately 20 years ago she founded the Tutoring Agency, which specializes in provided one-one-one tutoring services to special education students using the combination of research-based multisensory techniques that are most appropriate for each student (Tr. B: 63). After assessing Student herself, the Tutoring Agency Founder recommends 700 hours of individualized multi-sensory instruction using the Orton-Gillingham method for reading and spelling, and similar research-based methods for math. This recommendation was based on the Tutoring Agency Founder’s personal evaluation of Student, her thorough review of Student’s neuropsychological evaluation and IEP, and her extensive experience working within the field of special education and with children like Student (Tr. B: 74, 80). In her professional judgment, which I credit, Student can make significant academic progress and come close to, if not achieve, grade level. She recommends 700 hours of individual tutoring to remediate all of Student’s core academic skills: decoding, spelling, reading comprehension, writing, and math, all of which are well below grade level (Ex. P-002; Tr. B: 74-75, 85-86). The Tutoring Agency Founder based her recommendation on a schedule of approximately 8-10 hours per week over roughly a period of roughly two years, allowing flexibility to used school vacations and weekends (Tr. B: 88-89).
The District disputes the grant of compensatory relief. The District appropriately seeks to explain its position Application of a Student With a Disability, NYSED SRO Decision 11-091 n. 10. However, I reject the arguments advanced by the District: First, the District contends that Parent did not “plead for compensatory relief in the DPC” (IHO Ex. iv.005). This is simply not the case. The DPC clearly stated that the Parent seeks compensatory tutoring services at an enhanced rate and gave notice of Parent’s intent to offer proof at a hearing to support a specific request (IHO Ex. i.001, i.010). A parent filing a request for a due process hearing is required to include in the request only “a description of the nature of the problem …” and “a proposed resolution of the problem to the extent known and available to the party at the time.” 8 NYCRR 200.5[i][1][v] (emphasis added). By alleging in the DPC a list of deficiencies in the October 2021 IEP (IHO Ex. i.007-008), Parent described the nature of the problem. The request for compensatory tutoring was also discussed at the PHC (Tr. A: 10). At the hearing, the District had and used the opportunity to cross examine the Tutoring Agency Provider about the basis for the recommendation (Tr. B: 76-88). The District had ample notice of Parent’s request for compensatory relief and opportunity to address it at the hearing.
Second, the District argues that the requested compensatory services are excessive and “should be reduced considering the progress that [Student] has made at the [Private School]” (IHO Ex. iv.005-006). I reject this reasoning. The harm caused to Student by the denial of FAPE in 2021-2022 is not diminished by the fact that Parent unilaterally found a remedy for the District denial of FAPE in 2022-2023. The District’s discussion of this relief in its closing brief appears to conflate the two school years. Furthermore, just as the District is not permitted to consider the compensatory services awarded for a past denial of FAPE when developing future IEPs, I will not consider the benefit Student has derived from the unilateral placement in 2022-2023 when devising a remedy for the denial of FAPE in 2021-2022 and the summer of 2022. (See Application of a Student with a Disability, Appeal No. 19-093 at 13 [citing with approval Boose v. Dist. of Columbia, 786 F.3d 1054, 1056 (D.C. Cir. 2015)]). The relief requested will not be offset by Student’s progress.
Finally, I reject the District’s proposal that the number of hours be reduced from 700 hours to 46 hours (IHO Ex. iv.006). This would be the equivalent of one hour per week for one 12-month school year. I am not persuaded by the District’s suggestion that the expense of enhanced-rate tutoring (Tr. B: 75; IHO Ex. iv.006) weighs in favor of such a drastic – or, indeed, any – reduction in compensatory relief. If the District had provided Student with a FAPE in the first place, there would be no need for these additional enhanced-rate services now.
The 2022-2023 School Year
The October 2021 IEP governed the July-October period of the 2022-2023 school year. As discussed above, that IEP did not provide a FAPE. There was no meeting in October 2022 and no new IEP for the remainder of the 2022-2023 school year (Tr. A: 137).
For the 2022-2023 School year, the Parent unilaterally placed the Student at Private School, for which she now seeks funding of tuition. As described above, the three-prong Burlington/Carter analysis applies to this claim.
Parent did some online research with the help of someone to help her translate, and she learned about the Private School (Tr. B: 15). The school offered SLT, OT, and the counseling that Student needs. The school also had a kitchen, music classes, and other activities. Most of all, counseling was available every day, “and there were many services that were available and that [Student] would be able to talk and express herself” (Tr. B: 16). By having counselors available, the Private School helps student achieve security and self-confidence (Tr. B: 16-17). Parent has noticed progress while Student is attending the Private School. Student is happy at Private School and says that the teachers and therapists seem to understand her. Student writes more and focuses on her homework. She asks for help when she doesn’t know something (Tr. B: 17-18). Despite this progress, Parent believes that Student needs tutoring, as she is still not able to do her homework alone (Tr. B: 19). I find that Student’s progress at Private School proves that she is capable of academic progress in an appropriate learning environment (Ex. Q). Her continued struggles, however, are further evidence of the harm that was caused to Student by the denial of FAPE the previous school year, and her need for individual services to compensate for that harm.
In its Closing Brief, the District unequivocally concedes that it did not offer Student a FAPE for the 2022-2023 school year (IHO Ex. iv.004), satisfying Prong I of the Burlington/Carter analysis.
The District’s purported contest of Prong II addresses only the Parent’s request for tutoring services. However, as discussed above, Parent seeks tutoring as compensatory relief for the denial of FAPE in 2021-2022. The District does not contend that the Private School is inappropriate – on the contrary, the District notes in its Closing Brief that Student made “evident progress at [Private School] without private tutoring services” (IHO Ex. iv.005). This concession is supported by the record, including the testimony of the Assistant Head of Lower School at Private School (Exs. K, L, M, Q, S; Tr. B: 104-125).
The District raises no equitable objection to paying the Private School tuition for 2022-2023, but expressly “concedes the tuition for the 2022-2023 school year in the amount of $82,850.00 and for the Department to provide round-trip transportation between [Student’s] home and [Private School]” (IHO Ex. iv.006). Parent’s claim for this tuition is likewise supported by the record (Exs. N, O, R). Prongs II and III of the Burlington/Carter analysis are satisfied.
(continued on next page)
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby ordered that:
1. Student was denied a FAPE for the 12-month 2021-2022 school year.
2. Student was denied a FAPE for the 12-month 2022-2023 school year.
3. The DOE is directed to fund, at its sole cost and expense, 700 hours of 1:1 tutoring by the provider named herein or another provider of the Parent’s choosing.
a. These hours may be used at any time of day, on any day of the week, and without limitation by the DOE calendar, and shall be available until the first day of the 10-month
2025-2026 school year.
b. The provider will be compensated at the rate of $150/hour or the lowest rate paid by the DOE’s Implementation Unit for comparable services in the last six months, whichever is greater.
c. The DOE shall reimburse the Parent for the expenses of transportation to and from these services.
4. The District shall make direct payment to the Private School of $82,850.00 (eighty-two thousand eight hundred fifty dollars), for the 2022-2023 school year.
5. The District shall reimburse the Parent or make direct payment to the Private School upon presentation to the Implementation Unit of proof of payment for expenses of transportation to and from the Private school not otherwise included in tuition.
6. This Order will be satisfied in part by any payments already made pursuant to pendency.
SO ORDERED.
DATED: September 22, 2023
/s/ Olivia Sohmer
OLIVIA SOHMER, Esq.
Impartial Hearing Officer
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of this decision, the parent and/or the Public-School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.
An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.
APPENDIX A – DOCUMENTATION ENTERED INTO THE RECORD
DOE’S EXHIBITS
1 REDACTED Plan 10/25/2021 3
2 Notice of IEP Meeting 10/25/2021 3
3 IEP 10/27/2021 29
4 IEP (Spanish) 10/27/2021 49
5 Neuropsychological Evaluation 09/22/2021 21
6 Consent for Speech Tele-Therapy Services 10/18/2021 1 7 Consent for Occupational Therapy Tele-Therapy Services 09/21/2021 1 8 Prior Written Notice 11/09/2021 5
PARENT EXHIBITS
A NOT ADMITTED
B NOT ADMITTED
C 2018 Individualized Education program 05/15/2018 23
D NOT ADMITTED
E 2019 Individualized Education program 05/08/2019 24
F 2020 Individualized Education program 05/05/2020 23
G Report Card 2, 2020-2021, Term 1 03/08/2021 7
H Psycho-Educational Evaluation 05/12/2021 9
I WITHDRAWN
J WITHDRAWN
K [Private School] Lower School Program Description 2022 09/2022 8
L [Private School] 1st Semester Progress Report 02/03/2023 21
M Weekly Schedule 09/2022 2
N Attendance Report 06/12/2023 2
O Enrollment Contract 06/16/2022 4
P [Tutoring Provider] Tutoring Letter 05/09/2023 3
Q [Private School] 2nd Semester Progress Report 06/16/2023 25
R Ten Day Notice 08/24/2022 5
S [Head of Lower School at Private School] Affidavit 06/20/2023 17
IHO’S EXHIBITS
i. Due Process Complaint 4/10/2023 12
ii. Due Process Response 4/27/2023 5
iii. Parent’s Closing Statement 8/28/2023 11
iv. District’s Closing Brief 8/28/2023 6
v. Emails with Parties’ Counsel 8/2/2023 - 8/28/2023 6
Footnotes
[1] Personally identifiable information is attached as Appendix B, “Redaction Identification Page,” to this decision
[2] Exhibits are labeled with Arabic numerals for the District’s (DOE’s) exhibits; with letters for Parent’s Exhibits; and with
[3] The Special Education Hearings Division of the Office of Administrative Trials and Hearings migrated to a different transcription service as of July 1, 2023. As a result, transcripts of proceedings after that date are on a new pagination sequence. All proceedings prior to the transition will be cited as “Tr. A:” and all proceedings after it will be cited as “Tr. B:”
[4] The School Psychologist testified that she also attended an IEP meeting for Student’s three-year mandated reevaluation. She was not sure of the date of that meeting, and she is not listed on the attendance sheets of either the October 2018, 2019, or 2020 IEP meetings (Tr. A: 122; Exs. C-023, E-024, F-023).
[5] Parent sent Student to school despite this resistance (Tr. B: 33).