New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 598515- NYC: 247534

FINDINGS OF FACT AND DECISION

Case Number: 247534

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

School District: NYC Department of Education District Impartial Hearing Officer: Mercedes Cesaratto

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

Date Complaint Filed: April 17, 2023

Date(s) of Hearing: June 29, 2023, and July 11, 2023 Record Closed Date: October 2, 2023

Date of Decision: October 3, 2023

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 29, 2023

For the Student:

[REDACTED], Esq.

[REDACTED]

For the Department of Education:

[REDACTED] Esq.

[REDACTED], DOE School Psychologist

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 11, 2023

For the Student:

[REDACTED], Esq.

[REDACTED]The Law Offices of REDACTED, LLP

[REDACTED] -Parent

[REDACTED] Educational Director- [REDACTED]

For the Department of Education:

[REDACTED], Esq.

BACKGROUND AND PROCEDURAL HISTORY

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parent’s Due Process Complaint (“DPC") filed on or about April 17, 2023. (Ex. P-A).^[2] In the DPC, Parent alleges that the Department of Education (“DOE/District”) failed to provide a Free and Appropriate Public School Education (FAPE) for the 2022-2023 school year because the DOE failed to fulfill its equitable duties in the development and implementation of an educational program for the Student, in violation of Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1415(f), 34 Code of Federal Regulations (CFR) § 300.130 to 300.147, and New York State Education Law § 4404(1) and § 3602-c(2)(b)(1). Parent alleges the District did not afford the Parent an opportunity for meaningful participation in the development of an educational program for Student. (Id.) Parent alleges the DOE failed to fully and timely evaluate the Student in all areas of suspected disability. Parent invoked pendency and identified the Individualized Education Services Program (IESP) dated April 16, 2021, as the last agreed upon program with the DOE. In the DPC, the Parent requested the following relief: The DOE will provide direct funding of 8 periods per week of 1:1 Special Education Teacher Support Services (“SETSS”), at an enhanced rate through a provider/agency of Parent’s choice; the DOE will fund the cost of the related and additional services as they appear in the pendency section of this hearing request ^[3]; the DOE will provide direct funding of a 1:1 full time health paraprofessional at an enhanced rate, through the provider/agency of the Parent’s choice; and the DOE will pay reasonable attorney fees.^[4](Ex. P-A) The Parent attached a Pendency Program form to the DPC which identified the Services to be provided in the IESP as: SETSS, 8 hours per week 1:1, ST 3x30 1:1; CO 1x30 1:1 & 1x30 group; OT 2x30 1:1. (P-A4).^[5] Parent mistakenly omitted from the Pendency Program form the recommendation of a crisis/behavior paraprofessional recommended in the 4/16/2021 IESP. On April 18, 2023, I was appointed as an Impartial Hearing Officer to preside over this matter. On June 7, 2023, both representatives appeared for a pre-hearing conference (“PHC”). A Due Process Hearing was held on June 29, 2023, and July 11, 2023. It was a closed hearing. The Student’s Parent was present and represented by Parent’s Counsel. DOE was represented by District Counsel. Parent entered into evidence eight (8) exhibits with an objection by the DOE to Parent’s exhibit B, the IESP dated 4/16/2021. This IHO allowed the submission of Parent’s proposed exhibit B and Parent’s exhibits A through H were admitted into evidence. Parent and Educational Director (“Director”) of Private Provider Agency testified via affidavit and live testimony. Parent presented an opening statement. The DOE entered into evidence two (2) exhibits without objection. Both parties submitted closing briefs appended to this decision as IHO exhibits.^[6] At my request, the DOE provided the Attendance page of the IESP dated 4/16/2021 because the Attendance page submitted by Parent was incomplete as it did not contain the individuals who attended the CSE meeting of the 4/16/2021 IESP.^[7] (IHO Ex. IV) The Parent provided at my request the certifications of the SETSS providers. (IHO. Ex. III) The DOE challenged Parent’s request for pendency alleging the Parent does not have a right to pendency nor due process for equitable services implementation claims. DOE further contends the Parent’s request for relief should be denied because the costs of the SETSS, related services, and full time paraprofessional are excessive, Parent failed to demonstrate the services provided to the Student were provided in an appropriate manner, Parent failed to demonstrate Parent entered into a binding contract to pay for the services, equitable considerations do not support the relief requested, and the DOE is not required to provide the Student with a FAPE because the Student is parentally placed in a religious school. ^[8]

JURISDICTION

The due process hearing was held, and a decision in this matter is being 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., and Section 504,^[9] 29 U.S.C. §794(a).

PENDENCY

I will address Parent’s request for pendency. Initially, the DOE representative stated DOE would follow up on the Parent’s request for pendency and would advise Parent and this IHO as to whether the Pendency Unit had signed the form or whether a pendency hearing had to be scheduled. (6/29/2023 Tr. 35) The DOE representative did not provide any follow up information and the parties addressed pendency on the first day of the hearing. The DOE challenged Parent’s right to pendency alleging that Parent does not have a right to pendency nor due process for equitable services implementation claims. (6/29/2023 see generally Tr. 31-33) DOE claims pendency need not be addressed and that a pendency order is not needed. (6/29/2023 Tr. 31-33) DOE further states that parentally placed Students, such as the Student in this case, are not automatically entitled to a continuation of equitable services from year to year. DOE stated parents have an affirmative obligation to request these services from the District for each school year no later than June 1st of the preceding school year. (6/29/2023 Tr. 33)^[10] Parent contends the Student is entitled to pendency under the dual enrollment statute and that pendency is based on the last agreed upon IESP dated 4/16/2021. (6/29/2023 Tr. 33) DOE conceded that the last agreed upon IESP is the one dated 4/16/2021. (6/29/2023 Tr. 42; 52) DOE did not present any evidence, documentary or testimonial, to support their basis for challenging pendency nor did the DOE address pendency in their closing brief. (IHO Ex. II) For the reasons stated below, I find that the Student is entitled to pendency based on the last agreed upon IESP dated 4/16/2021. In New York, students who are parentally placed in a nonpublic school are entitled to “equitable services.” NY Educ. Law § 3602-c(2). The IDEA and the New York State Education Law require that a student remain in their then current educational placement, unless the student’s parent(s) and the board of education otherwise agree, during the pendency of any proceedings relating to the identification, evaluation or placement of the student. 20 U.S.C. § 1415(j); NY Educ. Law §§ 4404(4), 4410(7)(c); 34 C.F.R. § 300.518(a); 8 NYCRR § 200.5(m); see Student X v. New York City Dep’t of Educ., 2008 WL 4890440, at *20 (E.D.N.Y. 2008); Bd. of Educ. v. O’Shea, 353 F. Supp. 2d 449, 455-56 (S.D.N.Y. 2005). NY Education Law Section 3602-c(2)(c) further envisions the parent’s right to file due process complaints and be entitled to the same protections as those listed in NY Educ. Law § 4404, including the right to pendency. See NY Educ. Law § 3602-c(2)(b)(l) (“Review of the recommendation of the committee on special education may be obtained by the parent or person in parental relation of the pupil pursuant to the provisions of section forty-four hundred four of this chapter”). Pendency has the effect of an automatic injunction, and the party requesting it need not meet the requirements for injunctive relief such as irreparable harm, likelihood of success on the merits, and a balancing of the hardships. See Zvi D. v. Ambach, 694 F.2d 904, 906 (2d Cir. 1982); Wagner v. Bd. of Educ., 335 F.3d 297, 301 (4th Cir. 2003); Drinker v. Colonial Sch. Dist., 78 F.3d 859, 864 (3d Cir. 1996). Parents of students with disabilities who have voluntarily enrolled their children in nonpublic schools may seek to obtain educational services, commonly known as “equitable services,” for their children at the DOE’s expense. See generally N.Y. Educ. Law. § 3602-c. Such services include “special educational programs designed to serve persons who meet the definition of children with disabilities as set forth in [N.Y. Educ. Law § 4401].” N.Y. Educ. Law §§ 3602- c (1)(a, d). Once requested, the Committee on Special Education (“CSE”) must “develop an [IESP] for the student based on the student’s individual needs in the same manner and with the same contents as an individualized education program.” N.Y. Educ. Law § 3602- c(2)(b)(1). The district must also ensure that such educational services are “made available to students with disabilities attending nonpublic schools” on an “equitable basis” as compared to the services delivered to students attending public schools located within the district. Id. Parents who disagree with the CSE’s recommendations on their children’s IESPs are permitted to seek review “pursuant to the provisions of [N.Y. Educ. Law § 4404].” Id. While § 3602-c does not explicitly address implementation failures of the type at issue in this case, the New York State Education Department has opined that “[a] parent of a student who is a NYS resident who disagrees with the individual evaluation, eligibility determination, recommendations of the CSE on the IESP and/or the provision of special education services may submit a Due Process Complaint Notice to the school district of location.” See Guidance on Parentally Placed Nonpublic Elementary and Secondary School Students with Disabilities Pursuant to the Individuals with Disabilities Education Act (IDEA) 2004 and New York State (NYS) Education Law Section 3602-c (Sept. 2007)^[11] (emphasis added); see also Gabel ex. rel. L.G. v. Bd. Of Educ, 368 F. Supp. 2d 313, 332–33 (S.D.N.Y. 2005) (holding that an IHO has jurisdiction to hear claims regarding a district’s failure to provide related services to a parentally placed student attending a nonpublic school). Parents, therefore, have a right to initiate due process proceedings under N.Y. Educ. Law § 4404 for implementation failures when their children are parentally placed pursuant to N.Y. Educ. Law § 3602-c. To conclude otherwise would lead to an incongruous result, providing a parent the procedures by which to challenge what they believe to be improper recommendations, but leaving the parent powerless to address a district’s failure to provide the services to which everyone agrees the student is entitled. Section 4404, in turn, establishes a student’s right to pendency. N.Y. Educ. Law § 4404(4)(a) (“During the pendency of any proceedings conducted pursuant to this section . . . unless the local school district and the parents or persons in parental relationship otherwise agree, the student shall remain in the then current educational placement of such student.”). Because § 3602-c(2)(b)(1) expressly incorporates § 4404’s due process procedures, the DOE’s argument is without merit, and I find that the Student is entitled to pendency as a matter of law. The DOE’s claim that an order on pendency is not needed is incorrect. Pendency is an entitlement that vests at filing. Accordingly, the District was automatically required to implement pendency for this Student when the DPC was filed on April 17, 2023. Under the IDEA, the pendency inquiry focuses on identifying the student’s then-current educational placement. See Mackey v. Bd. of Educ., 386 F.3d 158, 163 (2d Cir. 2004), citing Zvi D., 694 F.2d at 906. Although not defined by statute, the phrase “then current placement” has been found to mean:

1. the placement described in the student’s most recently implemented IEP;

2. the operative placement actually functioning at the time when the due process proceeding was commenced; or

3. the placement at the time of the previously implemented IEP.

See Dervishi v. Stamford Bd. of Educ., 653 Fed. App’x 55, 57-58 (2d Cir. June 27, 2016), quoting Mackey, 386 F.3d at 163; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 170-71 (2d Cir. 2014) (holding that the pendency provision “requires a school district to continue funding whatever educational placement was last agreed upon for the child”); see Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 452 (2d Cir. 2015) (holding that a student's entitlement to stay-put arises when a due process complaint notice is filed); Susquenita Sch. Dist. v. Raelee, 96 F.3d 78, 83 (3d Cir. 1996); Letter to Baugh, 211 IDELR 481 (OSEP 1987). A prior unappealed IHO decision may also establish a student’s current educational placement for purposes of pendency. See Abrams v. Carranza, 2019 U.S. Dist. LEXIS 95403 at *8 (S.D.N.Y. June 6, 2019); Student X, 2008 WL 4890440, at *23; Letter to Hampden, 49 IDELR 197 (OSEP 2007). Furthermore, the Second Circuit has stated that educational placement means “the general type of educational program in which the child is placed” (Concerned Parents, et. al. v. New York City Board of Educ., 629 F.2d 751, 753, 756 [2d Cir. 1980]), and that the pendency provision does not guarantee a disabled child the right to remain in the exact same school with the exact same service providers” (T.M., 752 F.3d at 171). However, if there is an agreement between the parties on the student’s educational placement during the due process proceedings, it need not be reduced to a new IEP, and the agreement can supersede the prior unchallenged IEP as the student’s then-current educational placement. Bd. of Educ. v. Schutz, 290 F.3d 476, 483-84 (2d Cir. 2002); Evans v. Board of Educ., 921 F. Supp. 1184, 1189 n.3 (S.D.N.Y 1996); Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 86 F. Supp. 2d 354, 366 (S.D.N.Y. 2000), aff’d, 297 F.3d 195 (2d Cir. 2002); see also Letter to Hampden, 49 IDELR 197. Finally, “placement” refers not just to a student’s classroom setting, but also to their related services. Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 453 (2d Cir. 2015) (“[T]he IDEA defines ‘free appropriate public education’ to include ‘special education and related services.’”) (quoting 20 U.S.C. § 1401(9)) (emphasis in original); Letter to Baugh, 211 IDELR 481 (OSEP 1987) (“The term ‘present educational placement’ . . . would generally be taken to mean the current education and related services provided in accordance with the child’s most recent individualized education program.”) (emphasis added).

I find that the program described in the April 16, 2021 IESP, which both the District and Parent confirmed was the last agreed upon IESP (June 29, 2023, Tr. 42, 54) constitutes pendency and order the DOE to implement the program and services retroactive to April 17, 2023 (the date of the filing of the DPC) and continuing throughout the duration of this litigation per the Pendency Order below.

PENDENCY ORDER

IT IS HEREBY ORDERED, retroactive to the filing of the DPC on April 17, 2023, that the DOE shall provide, during the pendency of this matter, the following program and related services in accordance with the April 16, 2021 IESP (Ex. B), as follows: • Special Education Teacher Support Services (“SETSS”)- 8 periods per week-direct service/group service in English; and • Occupational Therapy-individual 2 times per week-30 minutes in English; and • Counseling-individual 1 time per week-30 minutes in English; and • Speech Language Therapy-individual 3 times per week-30 minutes in English; and • Counseling-group 1 time per week-30 minutes in English; and • Paraprofessional Behavioral Support- individual, daily full-time.

SO ORDERED. /s/Mercedes Cesaratto

Mercedes Cesaratto

Impartial Hearing Officer

DATED: October 3, 2023

HEARING ON THE MERITS

Findings of Fact

The Student is classified as a student with Autism and is parentally placed in a Private School in a general education class with 12 students and no assistant. (Ex. P-A; B; D-1and 2) Student was expelled from a prior school in December 2020 due to Student’s behavior. (Ex. P-B at pg. 1) Student was out of school for approximately one month and ten days before starting at the Private School. (Id.) As mentioned, during the 2021-2022 school year, during the time the Student was enrolled in the Private School, the IESP dated April 16, 2021, to be implemented on April 30, 2021 with a projected annual review of April 16, 2022 was in place. The IESP created on May 16, 2022 to be implemented on May 31, 2022 with a projected date of review of May 16, 2023 , made the same recommendations for special education services and related services as the CSE made in the IESP created on April 16, 2021, with one notable difference, the CSE removed the behavior paraprofessional from the May 16, 2022, which had been recommended in the April 16, 2021 IESP. Thus, there was no longer a provision for a behavior paraprofessional in the May 16, 2022 IESP. Witnesses School Psychologist The DOE School Psychologist testified via affidavit and live testimony. (June 29, 2023, Ex. D-2) The School Psychologist testified that they participated in the IESP meeting held for the Student on May 16, 2022, along with the CSE team which consisted of the following members all in attendance: Special Education teacher/District representative, the Student’s classroom teacher, the SETSS provider, and the Student’s mother. (June 29, 2023, Tr. 43) The School psychologist testified that in devising the IESP, the CSE team reviewed the following: the Student’s SETSS progress report dated 2/17/2022, a speech report dated 5/12/2022, an occupational therapy report progress report dated 5/17/2022, and the Student’s Autism Diagnostic Observation Scale – second edition (ADOS-2) conducted as part of a psychoeducational evaluation conducted on 12/20/2020. (June 29, 2023, Tr. 39) The CSE team also used a parent interview and a clinical observation. The School psychologist indicated that the ADOS-2 evaluation was in compliance with regulations that require psychoeducational re-evaluations every three years, as the CSE meeting was held on 5/16/2022 and the ADOS was conducted on 12/30/2020. (June 29, 2023, Tr. 44-45) Thus, the School Psychologist’s testimony established that the same psychoeducational evaluation prepared in 2020 was relied upon for both the April 16, 2021 IESP and the May 16, 2022 IESP. The School psychologist stated the CSE team considered parental concerns and the provider input, along with all the reports to devise an educational program that would provide the Student with an educational benefit in the least restrictive setting. The Student displayed clinical indications consistent with autism spectrum disorder, including “severe and pervasive impairment in the development of reciprocal social interaction, poor communication skills unusual sensory interest, and repetitive behaviors.” (Ex. D-2) School psychologist stated the Student was parentally placed in a non-public school in a 12:1 class a year below Student’s age appropriate grade but was several years behind grade level. (Ex. D-2) School psychologist stated Private School informed them that Student was promoted to REDACTED grade despite functioning three years behind. Student was academically delayed by at least two years. The Student was approaching grade level in math but significantly delayed in reading by two grades levels.

(Ex. D-2) The Student’s management needs identified the Student as requiring continuous redirection, refocusing, and help in academic avoidance and eloping from the classroom, and deficits in self-regulation. (Id.) (emphasis added) The School psychologist stated the Student’s teacher described the Student’s speech and touching as inappropriate, and found the Student lacked social boundaries and was impulsive. (Ex. D-2) The School psychologist noted that there was a full time behavior paraprofessional mandated for the Student in the prior IESP dated April 16, 2021. However, the School Psychologist stated the behavior paraprofessional was removed in creating the May 16, 2022, IESP because the Parent stated the Student did not utilize the paraprofessional during the prior year and the school also reported the Student was no longer in crisis and the Student’s current behaviors did not present safety concerns. (June 29, 2023, Tr.

44) The Student was not using a Behavior Intervention Plan (BIP) at the Private School. “School reported that [Student’s] current behaviors do not present any safety concern, [Student] is no longer in crisis. [Student] does not utilize an individualized BIP. Behaviors that are currently targeted are socially inappropriate behaviors and the school is addressing these without the use of a para.” (Ex. D-1 at pg.3; June 29, 2023, Tr. 50-51) The School Psychologist further reported that the Parent was in agreement with removing the behavior paraprofessional and the BIP going forward. (Ex. D-1at pg.7; June 29, 2023, Tr. 46, 51) The School Psychologist further testified that they discussed the Student’s social boundaries, socially inappropriate behavior, and impulsiveness at the May IESP meeting. On cross examination the Parent’s attorney asked if the paraprofessional could have helped the Student with issues of social boundaries, socially inappropriate behavior, and impulsiveness. The School Psychologist responded, “No, the paraprofessional that the DOE would provide would be addressing dangerous behaviors such as self-injurious behavior, aggressive behavior towards others that is putting others at danger and elopement behaviors, none of which [Student] exhibited”. (June 29, 2023, Tr. 46). The School Psychologist stated that because the paraprofessional was not being utilized or needed, the CSE discontinued the recommendation of the behavior paraprofessional. (Ex. D-2) The School Psychologist stated the behavior paraprofessional was removed from the IESP because the Student, “was no longer exhibiting dangerous behaviors or putting himself or others in danger. And as noted at the meeting, [Student] went the entire school year without a paraprofessional within the school”. (June 29, 2023, Tr. 47, 48, 49, 50) The School Psychologist testified that she did not know how the Private School was addressing the Student’s inappropriate social behaviors or the Student’s impulsiveness. (Id.)The School Psychologist stated the May 16, 2022 IESP did not reduce or increase the SETSS recommendations from the 2021 IESP and concluded that the Student had not improved with the SETSS recommendation and that the Student’s classroom setting was inappropriate for the Student. The School Psychologist noted the Student was not progressing despite the 1:1 services provided and the extensive 1:1 was not allowing the Student to develop social skills required for a group setting. (Ex. D-2) The School Psychologist testified the educational program in the IESP developed on May 16, 2022 was created to provide the Student with educational benefits in the least restrictive setting. (Ex. D-2)^[12]

IESP dated May 16, 2022 provided the following services to be implemented on 5/31/2022 for the 2022-2023 for a 10 month school year: • SETSS- 8 periods per week-direct service

• Occupational Therapy-individual 2 times per week-30 minutes

• Counseling-individual 1 time per week-30 minutes

• Counseling-group 1 time per week-30 minutes

• Speech Language Therapy-individual 3 times per week-30 minutes The IESP provided, “At this present IESP meeting, [Student] has not made progress, in [Student’s] reading and writing skill with the 8 periods of SETSS per week. [Student] is unable to write a complete sentence. According to the SETSS report, [Student] can read 12 site words and has deficits with phonetic awareness. [Student] is missing fundamental decoding skills. Math skills are reported to be at higher level. [Student] still requires continuous redirection, refocusing, avoidance of tasks, and impulsivity. Elopement is not an issue anymore, and [Student’s] personal safety is no longer an issue. [Student’s] SETSS provider and parent indicated that [Student] has not utilized a para for the last year and does not require a BIP, as [Student’s] social deficits/behaviors are managed by [Student’s] teachers, providers in the classroom, and BCBA”. (Ex. D-1 at pg.3, 6) It should be noted that the IESP dated 4/16/2021 increased the SETSS hours at the request of the SETSS provider from 5 hours of 1:1 SETSS per week to 8 periods of SETSS 1:1 per week. Speech was also increased from individual 2 times per week for 30 minutes to individual 3 times a week for 30 minutes.

(Ex. P-B at pg.7, 10) Parent was in agreement to change Student’s classification from “Other Health Impairment” to “Autism” and Parent was in agreement to increase the Speech services. (Ex. P-B at pg.7,

10) The IESP dated 4/16/2021 further provided, “IESP team asked parent to consider the option of a smaller setting in a public school. Team feels the present setting, even with 12 general education students in a 10-month program, does not supply the amount of support needed for [Student] to meet with academic success. While technically in a general education program, [Student’s] extensive 1:1 services are very restrictive and do not allow [Student] to develop the social skills that [Student] requires in a group setting.

(Ex. P-B at pg. 9) The April 16, 2021 IESP notes the Student is receiving ABA services through a private ABA Agency through insurance. (Ex. P-B at 9) The May 16, 2022 IESP notes the Student receives ABA therapy in school through private ABA Agency for about 2 hours a day, and the main idea of the BCBA is for focus and to pay attention to work because the Student does not have social boundaries. (Ex. D-1 at pg. 3) (July 11, 2023, Tr. 16) The IESP CSE team from May 16, 2022 expressed that the SETSS with the related services did not provide the Student with educational benefits. (Ex. D-1 at pg.7) The IESP noted Parent declined the offer of a public school placement. [Parent] would like to parentally place child in private school of [Parent’s] choosing and receive services from the NYC Department of Education.” (Ex. D-1 at pg.7) provided “Parental rights were reviewed. Parent expressed verbal understanding of her right” (Ex. D-1 at pg. 2). Parent Parent testified via affidavit and direct testimony. (Ex. P-H). I found portions of the Parent’s testimony to be contradictory, confusing, and vague in certain respects. As noted below, Parent was contradictory on (i) whether Parent agreed with the recommendation to remove a paraprofessional; and (ii) whether a paraprofessional was utilized following the May, 16, 2022 IESP meeting (and, if so, when the behavior paraprofessional services commenced). Parent’s affidavit states Parent agreed with recommendations made in the IESP dated 4/16/2021. (Id.) Parent states the May 16, 2022 CSE IESP recommended SETSS, Speech Language Therapy, Counseling, and Occupational Therapy. The paraprofessional was not recommended. Parent states, “I disagreed with the removal of the paraprofessional. At the meeting I expressed for the 2021-2022 school year, [Student] did not utilize [Student’s] paraprofessional. However, I also expressed [Student] does not have social boundaries and [Student] can be impulsive”. (Ex. P-H at pg.1) Parent further stated that at the start of the school year, no one from the DOE contacted Parent regarding services for the Student even though the DOE was aware Student was parentally placed and required special education services. (Ex. P-H at pg.2) Parent states they obtained the services of Agency Provider for SETSS, Speech Language Therapy, and a paraprofessional for the Student for the 2022-2023 school year. Parent states, “I understand the rate for SETSS is $197 per hour, the rate for Speech Language Therapy is 225 per hour, and the rate for paraprofessional is 65 per hour. I am seeking funding for the services …” (Ex. P-H at pg.2) Parent further states despite best efforts to obtain appropriate special education services for Student through DOE, Parent was not left with any other option than to seek private services, as the DOE failed to provide [Student] with the mandated services that will meet [Student] unique special education needs. (Id.) On cross-examination Parent stated she did not know whether the Student had a paraprofessional at the Private School in the spring of 2022. When asked again, Parent stated that the Student had a part-time ABA specialist helping Student for a few hours a day in 2021-2022. (July 1, 2023, Tr. 16) Parent then testified that during the 2020-2021 school year the Student did not have a paraprofessional. (Id.) District representative then asked parent, “Okay, at any point prior to the 2022-23 school year, which is at issue in this case, did your son have a paraprofessional?” Parent responded, “No” (July 1, 2023, Tr. 16) Parent testified that she does not remember when she obtained the paraprofessional for the 2022-2023 school year. (July 1, 2023, Tr. 17) Then Parent testified the school “highly recommended” that the Student have a paraprofessional, but she cannot recall who at the Private School made such a recommendation. (Id.) Then Parent testified she does not recall if the Private School recommended a specific agency. (Id.) District representative then asked Parent, “Who provides your [Student’s] paraprofessional services?” Parent: “[Student] does not have a paraprofessional”. District representative, “So, for the 2022-23 school year, [Student] never received paraprofessional services?” Parent: “Correct” (July 1, 2023, Tr. 17) Parent then testified that she attended the IESP meeting in May 2022 and that she agreed with the recommendation of SETSS and related services but was confused about the paraprofessional. (July 1, 2023, Tr. 18) Parent confirmed that at the May 2022 IESP meeting Parent reported that the [Student] was not receiving paraprofessional services. (Id.) Parent testified the Student has been attending Private School for two years and that Parent communicates with the Provider Agency approximately three times a year. (July 1, 2023, Tr. 19) Parent then testified that after the IESP meeting of May 16, 2022, Parent called the DOE a number of times and left messages about getting services for the Student but never received a call back. Parent states she then signed a contract with Provider Agency on June 23, 2022 for services to commence in September 2022. (P-Ex. C July 1, 2023; Tr. 19-21) Parent stated she has not paid for any of the services provided by Provider Agency. (July 1, 2023, Tr. 21) Parent testified she was aware of the services being provided by the Provider Agency. (Id.) Parent was then asked what services were being provided by Provider Agency and Parent responded, “They are providing SETSS, Speech, OT, and counseling.”^[13] (July 1, 2023, Tr. 21) Parent then testified that she was aware of the cost of the services and testified SETSS was $197, speech was $225 and the paraprofessional was $65. (July 1, 2023, Tr. 22) Then Parent again confirmed that the Student had never received a paraprofessional before, but now Parent stated that the Provider Agency was providing a paraprofessional. (July 1, 2023, Tr. 22) Parent conceded that she attended the May 15, 2022 CSE/IESP meeting and agreed that the paraprofessional should be removed, “Yes, I—I want—yes. At that point I agreed because—" (July 1, 2023, Tr. 23-emphasis added) Then this IHO asked for clarification from the Parent: HEARING OFFICER CESARATTO: I'm sorry. So you agreed at that point. What, if anything --okay. So I'm just a little confused. You agreed that the paraprofessional should be removed during that IESP, then your son -- when did your son then start to receive a paraprofessional? [REDACTED]: Following that, once – once I agreed to it, I got really confused. The school contacted me that he really -- he was running out of class and –” (July 1, 2023, Tr. 24 emphasis added)

Parent then testified that she contracted with Provider Agency for a paraprofessional for the Student to commence on September 2022 for the 2022-2023 school year. (July 1, 2023, Tr. 26) HEARING OFFICER CESARATTO: Okay. And you're saying -- when did the school tell you that your son needed a paraprofessional? [REDACTED]: Almost the first week when he got into the school. The first few days he got into the school, I already got the call that he was just roaming around. (July 1, 2023, Tr. 26-27) Parent testified that the Student started to leave the classroom everyday from the time the Student walked into the Private School two years ago. (July 1, 2023, Tr. 27) Then on re-direct Parent testified that she attended the IESP meeting of May 2022 and that she disagreed with the removal of the paraprofessional, “ I -- I -- at this -- I --actually, I disagreed with it, but I was -- I was outspoken (sic). I was the -- they convinced me otherwise. They're like, it's not necessary, so we can't provide it. They don't see a need for it.” (July 1, 2023, Tr. 28) Educational Director of SETTS/Speech Provider Agency The Educational Director testified via affidavit dated June 22, 2023 and live testimony. (Ex. P-G) The Educational Director testified she is the Educational Director (“Director/Educational Director”) of the Provider Agency. (July 11, 2023 Tr.33) The Director testified the Student is receiving 8 hours of SETSS for the 2022-2023 school year, at a cost of $197.00 per hour. (Ex. P-G-3 ¶ 26; July 11, 2023 Tr. 33-34)

SETSS is provided in a combination of push in pull out basis. The Educational Director testified the cost for the SETSS will be $63,040 calculated from September 8, 2022 through June 30, 2023, based on 40 weeks of service, 8 hours per week, at a rate of $197.00 per hour. (Ex. P-G-3 ¶ 27) The Director identified two teachers in her affidavit that provide SETSS to the Student and stated the providers are certified to teach students with disabilities. (Ex. P-G-3 ¶ 28; July 11, 2023 Tr.35) The Director testified the SETSS are not provided in a group setting. (July 11, 2023 Tr.36) The Director testified that sessions are conducted daily by the provider who submits session notes based on the amount of time they work with a child, a summary of what was worked on, the goals, and materials used during the session. And then at the end of the month, whatever sessions were provided get generated into an invoice. (July 11, 2023 Tr.36-37) The Director testified the Student is also receiving Speech Therapy for 1.5 hours, (3x30 minutes) at a cost of $225 per hour, delivered in one to one sessions. (Ex. P-G-3 ¶ 30; July 11, 2023 Tr.37-38) The Director testified the cost for the Speech Services will be $13,500 calculated from September 8, 2022 through June 30, 2023, based on 40 weeks of service, 1.5 hours per week, at a rate of $225.00 per hour. (Ex. P-G-3 ¶31) The Director testified both the Speech Providers are licensed by the State of New York. (Ex.P-D1,2,3; E1-2). Director testified the Student is receiving a behavior paraprofessional^[14] on a 1:1 basis daily basis for the 2022-2023 school year. (July 11, 2023 Tr.40) The Director testified the cost for the Behavior Paraprofessional will be $104, 000 calculated from September 8, 2022 through June 30, 2023, based on 40 weeks of service, 40 hours per week, at a rate of $65.00 per hour. (Ex. P-G-4 ¶35; July 11, 2023 Tr.41) The Director testified the Behavior Paraprofessional does not have a license in special education license nor ABA. (July 11, 2023 Tr.40) The Director testified the Paraprofessional was trained in ABA by a supervisor. (Id.) The Director testified that the Provider Agency did not recommend the services of the behavior paraprofessional, but rather, it was the Parent who requested the services of the paraprofessional. (July 11, 2023 Tr.41, 42) Director testified the Provider Agency did not provide the services of a paraprofessional to the Student for the 2021-2022 school year but did provide SETSS to the Student for the 2021-2022 school year. (July 11, 2023, Tr.42,52) The Director testified that for the 2020-2021 school year the Provider Agency did not provide the services of a paraprofessional to the Student. (July 11, 2023, Tr.43) The Director testified the first time the Provider Agency provided a paraprofessional to the Student was at the start of the 2022-2023 school year. (July 11, 2023, Tr.43) The Director testified the Parent signed a contract with the Provider Agency on June 23, 2022 and the Educational Director signed the contract on September 2, 2022. (July 11, 2023, Tr.44, Ex. P-C3) The Educational Director testified that the Parent requested the paraprofessional in June 2022, when the Parent reached out to re-enroll the Student for services for the next year. (July 11, 2023, Tr.44) The Educational Director testified the reason the Parent reached out to the Provider Agency for a paraprofessional was because the Student is receiving insurance based services at home and the Parent wanted those services in the school setting to address the Student’s behavioral concerns and that the school had to encourage the Parent to receive those services. (July 11, 2023, Tr.45) The Educational Director testified the Provider Agency provided the paraprofessional despite the paraprofessional not being recommended in the current May 16, 2022 IESP because the Parent reported that after consultation with their legal counsel, the Parent believed the last agreed up IESP (April 16, 2021) was the appropriate placement and that was the basis for providing the paraprofessional. (July 11, 2023, Tr.51-52) Director testified that when the Parent understood they would be financially responsible they wanted to make sure there was a basis for it given that they felt their child needed a paraprofessional. (July 11, 2023, Tr.52) Educational Provider testified the Parent reported to the Provider Agency that the Student struggles with emotional regulation, impulse control, and behaviors and Student really needed that support to be able to stay in the mainstream setting, be functional in the classroom, and be an active learner. (July 11, 2023, Tr.54) The Director testified the Provider Agency provided 8 hours of SETTS because that is what was recommended in the IESP. (July 11, 2023, Tr.46) The Educational Director testified the Provider Agency conducts formal and informal assessments of the Student. (July 11, 2023, Tr.42) The Educational Director testified the Parent has not paid towards the cost of any of the services provided to the Student for the 2022-2023 school year. (July 11, 2023, Tr.48) The Educational Director testified that payment would be due when the Parent pursues an impartial hearing and there is a decision, either the payment is ordered in a decision, if not, the Parent is responsible to pay. (July 11, 2023, Tr.49) The Director testified all the services are provided to the Student at the Private School. (Ex. P-G-4 ¶42) The Educational Director stated, “The Student has already shown signs of progress with [Student’s]

SETSS services providers, and related services provider. However, the Student’s academic and social delays warrant the need for continued services of SETSS 8, 1.5 hours of Speech Therapy and full-time paraprofessional in a 1:1 setting for the 2022-2023 school year.” (Ex. P-G-5 ¶43) The Educational Director testified that the Provider Agency does not provide Occupational Therapy or Counseling services to the Student. (July 11, 2023 Tr.40)

CONCLUSONS OF LAW AND ANALYSIS

FAPE

A board of education must offer a free appropriate public education (FAPE) to each student with a disability residing in the school district who requires special education services or programs (20 U.S.C. § 1412[a][1][A]; Educ. Law § 4402[2][a], [b][2]). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive IEP or IESP. (34 C.F.R. § 300.13) When the program is developed in New York City, a FAPE requires the DOE to both comply with the procedural requirements set forth in the IDEA, and recommend a placement and program that are 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). The IDEA provides that children with disabilities are entitled to a FAPE. See 20 U.S.C. § 1400 (d)(1)(A). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written Individualized Education Program (“IEP”). See 20 U.S.C. § 1401(9). A school district has offered a student a FAPE when: (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits. See Bd. of Educ. of the Hendrick Hudson Cent. Sch.

Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). In order to meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2017).A board of education must offer a FAPE to each student with a disability residing in the school district who requires special education services or programs. See 20 U.S.C. § 1412(a)(l)(A); Educ. Law § 4402(2)(a), (b)(2). “Multiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not." R.E., 694 F.3d at 190-191. Not all procedural errors, however, render an IEP defective and warrant relief. See Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003). If procedural violations are alleged, an administrative 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 CFR 300.513(a)(2); 8 NYCRR 200.5(j)(4)(ii); Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 (2007); R.E., 694 F.3d at 190; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 (2d Cir. 2012).

Dual Enrollment

The IDEA, however, confers no individual entitlement to special education or related services upon students who are enrolled by their parents in nonpublic schools (see 34 CFR 300.137[a]). Although districts are required by the IDEA to participate in a consultation process for making special education services available to students who are enrolled privately by their parents in nonpublic schools, such students are not individually entitled under the IDEA to receive some or all of the special education and related services they would receive if enrolled in a public school (see 34 CFR 300.134, 300.137[a], [c], 300.138[b]). Under State law, parents of a student with a disability who have privately enrolled their child in a nonpublic school may seek to obtain educational "services" for their child by filing a request for such services in the district of location where the nonpublic school is located on or before the first day of June preceding the school year for which the request for services is made (Educ. Law § 3602-c[2]).^[15] "Boards of education of all school districts of the state shall furnish services to students who are residents of this state and who attend nonpublic schools located in such school districts, upon the written request of the parent" (Educ. Law § 3602-c[2][a]). In such circumstances, the district of location's CSE must review the request for services and "develop an [IESP] for the student based on the student's individual needs in the same manner and with the same contents as an [IEP]" (Educ. Law § 3602-c[2][b][1]). The CSE must "assure that special education programs and services are made available to students with disabilities attending nonpublic schools located within the school district on an equitable basis, as compared to special education programs and services provided to other students with disabilities attending public or nonpublic schools located within the school district (id.)^[16] Thus, under State law an eligible New York State resident student may be voluntarily enrolled by a parent in a nonpublic school, but at the same time the student is also enrolled in the public school district for the purpose of receiving special education programming under Education Law § 3602-c, services for which a public school district may be held accountable through an impartial hearing.

Burden of Proof

Under the IDEA and the NY State Education Law, school districts have the burden of proof that a FAPE has been provided to the student, except that where tuition reimbursement is sought, the parent has the burden of proof with respect to the appropriateness of the parent’s chosen educational placement. See Education Law § 4404(1)(c); C.F. v. New York City Dep’t of Educ., 746 F.3d 68, 76 (2d Cir. 2014); R.E.

v. New York City Dep't of Educ., 694 F.3d 167, 184-85 (2d Cir. 2012). As explained more fully below, SETSS cases have been treated as a hybrid between unilateral placement theory cases, see e.g., Application of a Student with a Disability, Appeal No. 21-101, and pure compensatory education cases. See, e.g., Foster v. Bd. of Educ. Of the City of Chicago, 611 Fed. App’x 874, 878-79 (7th Cir. 2015) (compensatory education includes reimbursement for out-out-pocket educational expenses). Therefore, I must determine whether the Department met its burden to demonstrate that its offered program was reasonably calculated and implemented to provide this Student with educational benefits. At issue is whether the IESP developed for the Student on May 16, 2022, which removed the behavior paraprofessional and recommended SETSS- 8 periods per week-direct service, Occupational Therapy-individual 2 times per week-30 minutes, Counseling-individual 1 time per week-30 minutes, Counseling-group 1 time per week-30 minutes, Speech Language Therapy-individual 3 times per week-30 minutes was implemented and reasonably calculated to provide the Student with educational benefits.

I find the program recommend by the CSE in the IESP dated May 16, 2022, failed to provide the Student with a FAPE on an equitable basis for the 2022-2023 school year because the CSE removed the behavior paraprofessional and failed to implement the services the CSE recommended in the IESP. I will discuss the District’s removal of the Student’s behavior paraprofessional more fully below. It is uncontested that the Student and Parent reside in New York City and the Student attended the Private School during the 2022-2023 school year. (Ex. A-1, D-1) Furthermore, it is uncontested that the Private School is located within the geographic boundaries of the DOE. The Parent testified credibly regarding the District’s failure to implement the services recommended by the CSE in the May 16, 2022 IESP. The District, which bears the burden of proof, failed to put on any witnesses or evidence to contest that the Student was entitled to the services recommended in the IESP. Rather, the District maintained the CSE’s removal of the paraprofessional was warranted because the Parent verbally agreed to the removal of the paraprofessional and the Private School claimed the Student’s behavior no longer warranted a paraprofessional. The DOE did not put forth any witness from the Private School to support the District’s contention that the Private School determined a paraprofessional was not warranted. The Educational Director testified, in contrast, that the paraprofessional services were provided based on the last IESP, which provided for those services. Additionally, Parent (despite her contradictory and confusing testimony) disputes that she agreed with the removal of the Student’s paraprofessional. CSE’s Removal of the Student’s Behavior Paraprofessional from the May 16, 2022 IESP

The CSE’s recommendation to remove the Student’s behavior paraprofessional from the May 16, 2022

IESP for the 2022-2023 school year was not supported by the evidence in the hearing record and deprived the Student of an educational benefit. Initially, the hearing record does not include a prior written notice from the District describing, among other things, the evaluative information relied upon by the CSE in reaching its recommendations (* NYCRR 2005[a]; see 34 CFR 300.503[b]). According to the School Psychologist’s affidavit and testimony, the CSE team devised the May 16, 2022 IESP utilizing the following: “…the Student’s SETSS progress report dated 2/17/2022, a speech report dated 5/12/2022, an occupational therapy progress report dated 5/17/2022, and the Student’s Autism Diagnostic Observation Scale- Second Edition (ADOS-2) conducted as part of a psychoeducational evaluation conducted on 12/30/2020. The team used a parent interview and a clinical observation. The ADOS-2 is described in Exhibit 1-1 IESP dated 5/16/2022. This ADOS-2 evaluation was still in compliance with regulations that require psychoeducational re-evaluations every three years”. (Ex. D-2 pg 1 ¶ 6; 6/29/2023 Tr.44) The hearing record does not include any of the referenced documents the CSE team used to develop the May 16, 2022 IESP, namely the SETSS progress report dated 2/17/2022, the speech report from 5/12/2022, or the occupational therapy report from 5/17/2022. Particularly troubling is the missing referenced Student’s Autism Diagnostic Observation Scale- Second Edition (ADOS-2) conducted as part of a psychoeducational evaluation conducted on 12/30/2020 from the hearing record. The psychoeducational evaluation conducted on 12/30/2020 is the same one referenced in the Student’s IESP dated April 16, 2021, which was used by the CSE team at that time to form one of the basis for recommending a full-time behavior paraprofessional for the Student. (See Ex.P-B) While the May 16, 2022 IESP summarized the results of the ADOS-2 which is an evaluation and observation assessment tool that allows the examiner to observe and gather information regarding an individual’s social behavior and communication the report concluded “Based on formal testing, review of records, observation, and clinical opinion, ]Student] displays clinical indications consistent with an autism spectrum disorder including a severe and pervasive impairment in the development of reciprocal social interaction, poor communication skills, unusual sensory interests, and repetitive behaviors. (Ex. D-1-2) The Teacher and SETSS report was summarized in part, as describing the Student as becoming very frustrated with reading, incapable of writing a sentence, refusing to participate in reading although Student will participate in math. The teacher and the SETSS progress report further described the Student as being socially inappropriate, “very touchy feely”, “licking [Student’s] fingers, lacking social skills that are appropriate when interacting with adults and peers, lacking personal space boundaries, often touching people with hands and arms when Student is speaking with them, causing peers to single the Student out. The teacher’s observations also described the Student as being easily distracted in class because the Student is not able to focus on what the class is learning. (Ex. D-1-5) The Parent’s concerns were summarized as follows: “[Student] does not have social boundaries. [Student] can be impulsive. (Ex. D-1-5) The Occupational Therapy report was summarized as follows: the Student presents with overall delays in fine motor, gross motor, visual motor/ perceptual and sensory processing areas. Student presents with a decreased attention span and often requires cues for redirection. (Ex. D-1-5) It was recommended to continue with OT services to focus on the Student’s delays. (Ex. D-1-6) The Speech Progress report was summarized in part, as describing the Student as having speech and language delays with symptoms of dyslexia, the Student was described as being “easily distracted”, with a “short attention span and being distracted” causing Student to require repetition of information. The continuation of speech was recommended to help [Student] improve academically and socially. (Ex. D-1-4) It is clear, therefore, the CSE team removed the behavior paraprofessional from the Student’s IESP for the 2022-2023 school year, in large part attributed to i) the Parent’s alleged agreement at the time of the meeting to remove the paraprofessional from the May 16, 2022 IESP because the Parent claimed the Student has not utilized the paraprofessional during the prior school year, 2021-2022 and ii) the Private School reported that the [Student’s] current behaviors do not present any safety concerns. “Student is no longer in crisis. Student does not utilize an individual Behavior Intervention Plan (BIP). Behaviors that are currently targeted are socially inappropriate behaviors and the school is addressing these without the use of a para”. (Ex. D-1-3; D-2 pg. 2 ¶ 18, 20-22; 6/29/2023 Tr. 47-48) Although an explanation as to how these behaviors were being addressed by the Private School was never provided. While I believe as documented above, the Parent provided contradictory and at times confusing testimony regarding her alleged agreement and/ or disagreement with the removal of the Student’s behavior paraprofessional at the time of the meeting, this does not excuse the requirement the District had in providing the Parent with prior written notice of the removal of the behavior paraprofessional. Nor should the Parent’s alleged verbal agreement provide the basis for removing the Student’s behavior paraprofessional—particularly when the 2020 report (the same report relied on for both IESPs) was again relied upon to develop the 2022 IESP. Section 3602-c (2)(b)(1) states quite clearly that a student’s IESP is to be developed “in the same manner” as an IEP, which means exactly what it says – that an IESP has to be developed by the CSE in the same manner as it develops an IEP under Education Law § 4402, with the same procedural rights and safeguards. One of the procedural safeguards in Education Law § 4402 is the requirement under § 4402 (1)(b)(3)(c) that the CSE provide prior written notice whenever the CSE plans to “continue, modify or change the identification, evaluation, or educational placement of the child”. The removal of a crisis/behavior paraprofessional is a change in the educational placement of a child. Therefore, the District was required to provide the Parent with prior written notice of the removal of the crisis/behavior paraprofessional and the District failed to do so in this case. The failure to provide a prior written notice is a procedural violation, and a procedural violation only amounts to a substantive violation, and therefore a FAPE violation, if it deprives the Student of educational benefits. The removal of a behavior paraprofessional deprived the Student of an educational benefit and thus constituted a denial of FAPE in this instance. The proposition that the behavior paraprofessional was no longer needed for this Student is contradicted by the information provided to the CSE team at that time, specifically, the Student needed behavioral and social support to improve the Student’s classroom functioning and attention skills because the Student lacked social boundaries, was impulsive, inappropriately touched people, lacked focus, was easily distracted and engaged in inappropriate behavior. The District did not establish, moreover that the Parent’s obvious confusion and apparent agreement at the time of the meeting to the removal of the paraprofessional was untainted by the DOE’s procedural violation in failing to provide prior written notice of the change in placement in removing the paraprofessional. Additionally, the management goals described in the April 16, 2021 IESP were described as follows: the Student as demonstrating improved social skills and compliance with classroom routines with the assistance of Student’s crisis management paraprofessional by verbally using cues and positive feedback; by asking for breaks, or assistance when feeling overwhelmed and frustrated, by following 1-2 step direction without refusal. The Student, with assistance from the crisis para, when given a frustrating situation (i.e. undesired task, demand, and/or undesired peer behavior) with 3 prompts, will utilize coping strategies (i.e. take a break, deep breaths, etc.) and return to and remain on task with calm body and mind for a minimum of 10 minutes. During unstructured school time (recess, choice time, lunch, [Student , with the assistance of the crisis para, will participate, share, follow directions/rules, and take turns with 1 peer for 10 minutes, while refraining from negative behavior (tease, annoy, poke) toward Student’s peer, with visual and verbal clues as needed. Student with the assistance of the crisis para, will avoid leaving the classroom without permission, moving/banging desk, taking objects from teacher’s desk, and throw objects, with modeling, verbal, and visual clues as need. (Ex. P-B 16) Contrary to the School Psychologist’s testimony, it is clear from the goals listed in the April 16, 2021 IESP that the behavior/crisis paraprofessional was recommended for the purpose of providing more than just crisis management to address safety concerns for the Student and others, but also to address and include behavioral issues. (June 29, 2023 Tr. At 46) In stark contrast to the management goals found in the April 16, 2021 IESP, the May 16, 2022 IESP only lists the following management goals: Student will learn and practice: socially appropriate skills to use when interacting with peers; utilize appropriate physical boundaries with peers and teachers; and practice appropriate tone when conversing with others. Clearly, none of these goals target the Student’s clear ongoing behavioral deficits which impeded the Student’s functioning in the classroom. What is evident from the Student’s teacher, SETTS provider, Speech report, Occupational report, and Parent concerns considered by the May 16, 2022 CSE is that the Student’s social/emotional and behavioral difficulties impeded the Student’s ability to function in the classroom. Whether or not the Parent chose to utilize the services of a paraprofessional is immaterial here. The apparent lack of using a paraprofessional in the 2021-2022 school year, does not negate the fact that the Student needed a paraprofessional as determined by the underlying materials relied on for both the 2021-2022 and 2022-2023 school years, nor does it excuse the District’s failure in recommending one. Furthermore, the statements attributed to Private School regarding Student’s behavior as no longer presenting a safety concern and no longer being in crisis, does not warrant the removal of a behavior paraprofessional. There was no testimony presented from the Private School that the Student no longer required a paraprofessional. As discussed, the only psychoeducational evaluation referenced was the same one the CSE used in both the April 16, 2021 IESP, which formed the basis to recommended a behavior paraprofessional and in May 16, 2022 IESP which the CSE reviewed in removing the behavior paraprofessional. The behavioral issues (which went beyond safety concerns) remained at the time of the May 2022 meeting. Based on the above, and without the benefit of any documentary evidence or evaluations that demonstrated the Student no longer required a behavior paraprofessional, I find that it was inappropriate for the CSE to remove the behavior paraprofessional from the Student’ IESP dated May 16, 2022 and that the failure to recommend a behavior paraprofessional for the 2022-2023 school year deprived the Student an educational benefit and therefore, constituted a denial of a FAPE on an equitable basis. Implementation of SETSS School districts are obligated to provide the special education services listed in a student’s IEP. 20 U.S.C. § 1401(9)(D); 34 C.F.R. § 300.17(d) (“FAPE means special education and related services that . . . [a]re provided in conformity with an individualized education program (IEP) that meets the requirements of §§ 300.320 through 300.324”). School district actions that constitute a “material failure of implementing the IEP” deny a FAPE. See A.P. v. Woodstock Bd. Of Educ., 370 Fed. Appx. 202, 205 (2d Cir. 2010) (citing Van Duyn ex. Rel. v. Van Duyn v. Baker Sch. Dist. 5J, 502 F.3d 811, 821 (9th Cir. 2007) (“A material failure occurs when the services provided to a disabled child fall significantly short of those required by the IEP”). The implementation of IESP services falls on the district of location insofar as "boards of education of all school districts of the state shall furnish services to students who are residents of this state and who attend nonpublic schools located in such school districts, upon the written request of the parent." Educ. Law § 3602-c(2)(a). The CSE must "assure that special education programs and services are made available to students with disabilities attending nonpublic schools located within the school district on an equitable basis, as compared to special education programs and services provided to other students with disabilities attending public or nonpublic schools located within the school district.” Educ. Law § 3602-c(2)(b)(1). Additionally, section 3602-c provides that a parent may seek review of the recommendation of the CSE pursuant to the impartial hearing and State-level review procedures pursuant to Education Law § 4404.The DOE had the obligation to provide services to the Student in conformity with the IESP. See Educ. Law§ 3602-c(2)(a), (b)(l). In failing to do so, the DOE failed to provide the Student with services on an equitable basis as compared to other students with disabilities attending public or nonpublic schools located within the school district. More than that, it has been held that the Department may not effectively compel a parent to resort to self-help in obtaining a SETSS provider. See e.g., Application of a Student with a Disability, Appeal No. 21-101. Such a “de facto delegation from the district to the parent of the obligation to find a SETSS provider . . . at an acceptable rate is manifestly unreasonable” id., and a violation of State law. See Application of a Student with a Disability, Appeal No. 20-115 (“core instruction provided by a school district must be performed either by teachers who are employees of the district or pursuant to a contract for special education services that a district is specifically authorized by law to enter into”) (internal citation omitted, emphasis added); see also Application of a Student with a Disability, Appeal No. 20-087; and Application of a Student with a Disability, Appeal No. 20-140. Here, the District failed to implement the services the CSE recommended in the May 16, 2022 IESP. The District bears the burden of proof and did not put forth any witnesses to demonstrate that the services recommended in the IESP were implemented by the District. Therefore, the District failed to meet its burden in demonstrating that it provided a FAPE on an equitable basis to the Student for the 2022-2023 school year.

Appropriateness of the Private Provider SETSS and Related Services

Since the District failed to implement the SETSS and related services recommended in the May 16, 2022 IESP, the Parent secured the services of the Private Provider to provide the Student with SETSS, Speech, and a paraprofessional. As documented above, the Student’s deficits and delays were extensive across all domains as documented in the May 2022 IESP and in the more recent Private Provider SETSS Progress Report submitted by Parent dated May 11, 2023. (Ex. P-F) While the DOE points out that the CSE team did not believe the Student was making progress with the recommended SETSS, the Private Provider’s Progress Report notes the Student, while delayed, is displaying some improvement in reading and is working on reading goals using the whole language approach and explicit phonics instruction. (Ex. P-F2) In comprehension and language skills, the Student demonstrated progress at a slower pace. (Ex. P-F4) In math, the Student has been making slow but steady progress. (Ex. P-F5) The Student has shown progress in engaging in appropriate interactions with peers and adults with the help of the paraprofessional. (Ex. P-

F6) Finally, the Progress Report noted the paraprofessional was crucial in allowing the Student to function and learn from Student’s peers as well as learning in a 1:1 basis to improve the Student’s behavior so that the Student can function in a general educational setting. (Ex. P-F8) The District cannot have it both ways, and argue that the SETSS and the related services are not appropriate while the DOE recommended the Student receive the same SETSS and related services, with the exception of the paraprofessional discussed above. Additionally, the SETSS teachers and the Speech Provider all hold the appropriate licenses and certifications within their respective fields and specialties. (Ex. P-D,E, IHO-III). I find the Parent’s unilateral placement for SETSS and related services to be appropriate.

REMEDIES

Equities

The remedy for a school district’s failure to provide appropriate equitable services required under Education Law § 3602-c is similar to the remedy for a school district’s failure to provide appropriate services under the IDEA. See Application of a Student with a Disability, Appeal No. 20-023, citing Doe v. E. Lyme Bd. of Educ., 262 F. Supp. 3d 11, 27 (D.Conn. 2017). Under the IDEA, courts can “grant such relief as the court determines is appropriate,” limited only by the restriction that “the relief is to be appropriate in light of the purpose of the Act.” Doe v. East Lyme Bd. Of Educ., 790 F.3d 440, 454 (2d Cir. 2015) (citation omitted). Equitable considerations are relevant in fashioning relief, and the court enjoys broad discretion in doing so. Florence Cty. Sch. Dist. Four v. Carter, 510 U.S. 7, 16 (1993). Although an award of damages is not available under the IDEA (see Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 486 [2d Cir. 2002]), “a court may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies” (Doe v. East Lyme, 790 F.3d at 454). The Parent acted equitably in this case. The District was required to provide the services. The Parent reached out to the District to inquire about providers. Parent states the District never responded and therefore, the Parent obtained services at an enhanced rate. The Parent attended the IESP on May 16, 2022. The hearing record does not support a finding that the Parent’s actions were unreasonable or that the Parent failed to cooperate with the District in this case. The Parent has demonstrated that she entered into a contract with the Private Provider for SETSS and related services (Speech and paraprofessional) for the Student for the 2022-2023 school year.^[17] (Ex. P-C) Parent testified that she has not made any payments to the Private Provider and the Director confirmed that the Parent entered into a contract with the Private Provider and no payments were made by the Parent. (Ex. P-C, G, H) The Director explained how the rates for the SETSS, Speech, and paraprofessional were calculated and determined. The District failed to provide any evidence that the requested rates were inappropriate or unjustified. I do not find the rates requested of $197 per hour for SETSS, $225 per hour for Speech, or $65 per hour for the paraprofessional to be excessive. Although, the total calculations were erroneously based on 40 weeks for a 10-month program when they should be based on 36 weeks, and not 40 weeks. I will adjust the total amounts requested to reflect 36 weeks for a 10-month program and not the 40 weeks requested. ^[18] Parent did not present any testimony or evidence concerning whether or not the Student received the Occupational Therapy and Counseling mandated on the Student’s May 16, 2022 IESP through a provider. The Student is entitled to these services. Therefore, I am ordering the DOE to issue RSA’s for the Occupational Therapy and Counseling as recommended in the May 16, 2022 IESP.

OTHER CONTENTIONS

Parent seeks payment of attorney’s fees and expenses associated with representation in this matter (Ex. PA3). The IDEA does not authorize an administrative officer to award attorneys’ fees or other costs to a prevailing party. Entitlement, if any, to costs must be determined by a court of competent jurisdiction. See 20 U.S.C. § 1415(i)(3)(B); Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 402 F.3d 332 (2d Cir. 2005); see also Application of a Student with a Disability, Appeal No. 08-008; Application of a Child with a Disability, Appeal No. 06-109. Only a court can determine who is entitled to attorneys’ fees and I would be exceeding the scope of my authority by determining that the Parent is the prevailing party entitled to attorney fees.

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

ORDER

Based upon the above Findings of Fact and Conclusions of Law,

1. It is hereby ordered, that the DOE failed to provide the Student with a FAPE on an equitable basis for the 2022-2023 school year.

2. It is further ordered, that the DOE is directed to fund the following special education services and related services for the Student by issuing payment directly to the licensed providers of the Parent’s choosing, within thirty (30) days of submission of copies of invoices for such services rendered based on the 10-month program for the 2022-2023 school year for up to 36 weeks: • Special Education Teacher Support Services (“SETSS”) 8 periods per week-direct group service, at a rate not to exceed $197.00 per hour.

• Speech Language Therapy-individual 3 times per week-30 minutes, at a rate not to exceed

$225 per hour.

• Paraprofessional Behavioral Support- individual, daily full-time, at a rate not to exceed

$65.00 per hour.

3. It is further ordered, that the DOE is directed to fund the following special education services and related services for the Student by issuing payment directly to the licensed providers of the Parent’s choosing. The provider shall be paid by providing the Parent with Related Services Authorizations (“RSAs”) for the following services based on the 10-month program for the 2022-2023 school year for up to 36 weeks: • Occupational Therapy-individual 2 times per week-30 minutes

• Counseling-individual 1 time per week-30 minutes

• Counseling-group 1 time per week-30 minutes

SO ORDERED.

DATED: October 3, 2023

/s Mercedes Cesaratto (signed electronically)

Mercedes Cesaratto

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

Exhibit	Document	Date	Pages
A.	Request for Impartial Hearing	April 17, 2023	6
B.	IESP	April 16, 2021	20
C.	Contract	June 23, 2022	4
D.	Speech Language Pathologist Certificate	September 1, 2022	3
E.	Speech and Language Disabilities Certificate	January 14, 2017	2
F.	Progress Report	May 11, 2023	8
G.	Provider Affidavit	June 22, 2023	5
H.	Parent Affidavit	Undated	2
I.
J.
K.
L.
M.

DOE’S EXHIBITS

Exhibit	Document	Date	Pages
1.	IESP	May 16, 2022	12
2.	Affidavit School Psychologist and IEP [REDACTED]	June 22, 2023	3
3.

IHO’S EXHIBITS

Exhibit	Document	Date	Pages
I.	Parent Closing Brief	8/14/2023	7
II.	DOE Closing brief	8/14/2023	10
III.	SETSS Teacher’s Credentials/Certifications for [REDACTED] and [REDACTED]	undated	2
IV.	Attendance Page of IESP dated April 16, 2021	4/16/2021	1

Footnotes

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

[2] Exhibits shall be referred to as follows: “P” for Parents’ Exhibit; “D” for District’s or Department’s Exhibits; and “IHO” for Impartial Hearing Officer’s Exhibits. Exhibits will be followed by the exhibit number and page numbers as needed and appropriate. Transcript references shall refer to the date of the transcript and the page number, as the transcript pages are not paginated in sequential order and there were two hearing dates (June 29, 2023, and July 11, 2023).

[3] The Pendency section in the DPC reads as follows: “Special Education Teacher Support Services (“SETSS”), 8 hours per week, as well as related services of ST 3x30 1:1; CO 1x30 1:1 & 1x30 group; OT 2x30 1:1.

[4] Parent mistakenly requested a “health” paraprofessional in the DPC under Proposed Resolution but the IESP dated April 16, 2021 recommended a behavior paraprofessional.

[5] Parent mistakenly describes the recommendations found in the IESP dated 4/16/2021 in the pendency section of the DPC and in the pendency form (P-A2 and 4). The IESP dated 4/16/2021 provides for the following: SETSS- 8 periods per week-direct service, Occupational Therapy-individual 2 times per week-30 minutes, Counseling-individual 1 time per week-30 minutes, Speech Language Therapy-individual 3 times per week-30 minutes, Counseling-group 1 time per week-30 minutes, and Paraprofessional Behavioral Support- individual, daily full-time.

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

[7] The attendance page of the 4/16/2021 IESP is marked as an IHO Exhibit IV and the certifications for the SETSS teachers is marked as IHO Ex. III.

[8] See DOE closing brief marked as IHO Ex. II.

[9] The New York City Department of Education delegated to OATH the authority to adjudicate due process complaints under Section 504. NYC Exec. Order No. 20 (June 24, 2022), https://www1.nyc.gov/assets/oath/downloads/pdf/EO-20-final-rehab-Act-504-delegation-Signed.pdf.

[10] The District raised the June 1st affirmative defense for the first time at the commencement of the pendency hearing right before the merits hearing and did not raise it further. The District did not raise the affirmative defense in a timely manner and did not put the Parent on notice that the DOE was going to raise this. Moreover, there was not evidence presented that the Parent did or did not request the services/IESP before June 1, 2022. For those reasons, the DOE’s affirmative defense is denied.

[11] See https://p12.nysed.gov/specialed/publications/policy/documents/chapter-378-laws-2007-guidance-on-nonpublic-placements.pdf.

[12] The 4/16/2021 IESP attendance page (IHO Ex. III) identified [REDACTED] as the Site Director at Private School (Agency Provider) and the IESP dated 5/16/2022 attendance page (Ex. D-1at pg.16) identified the same individual as the SETSS provider.

[13] The Provider Agency did not provide OT or counseling to the Student, contrary to Parent’s testimony.

[14] Educational Director testified her affidavit is incorrect in describing the paraprofessional as a health paraprofessional in Paragraph 34.

[15] State law provides that "services" includes "education for students with disabilities," which means "special educational programs designed to serve persons who meet the definition of children with disabilities set forth in [Education Law § 4401(1)]" (Educ. Law § 3602-c[1][a], [d]).

[16] State guidance explains that providing services on an "equitable basis" means that "special education services are provided to parentally placed nonpublic school students with disabilities in the same manner as compared to other students with disabilities attending public or nonpublic schools located within the school district" ("Chapter 378 of the Laws of 2007– Guidance on Parentally Placed Nonpublic Elementary and Secondary School Students with Disabilities Pursuant to the Individuals with Disabilities Education Act (IDEA) 2004 and New York State (NYS) Education Law Section 3602-c," Attachment 1 at p. 11, VESID Mem. [Sept. 2007], available at http://www.p12.nysed.gov/specialed/publications/policy/nonpublic907.pdf). The guidance document further provides that "parentally placed nonpublic students must be provided services based on need and the same range of services provided by the district of location to its public school students must be made available to nonpublic students, taking into account the student's placement in the nonpublic school program" (Id.).

[17] Parent did not present testimony regarding whether Parent contracted with a private provider to provide the Student with the OT or counseling recommended in the May 2022 IESP.

[18] Pursuant to State regulation, a 10-month school year from September through June consists of at least 36 weeks, not 40 and a 12-month school year from June through July would generally consist of 42 weeks. This is based on the 180 instructional days in a 10-month school year, plus an additional 30 days during the 12-month portion of the school year that occurs over a summer, typically during a six week program (see Educ. Law § 3604[7]; 8 NYCRR 200.1[eee])