New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 598549- NYC: 247568

FINDINGS OF FACT AND DECISION

Case Number: 247568

Student’s Name: REDACTED

Home District: REDACTED

Service District: REDACTED

Impartial Hearing Officer: Ginger James

Date of Filing: April 18, 2023

Hearing Requested by: Parents

Date of Hearing: June 28, 2023

Record Close Date: August 1, 2023

Date of Decision: December 26, 2023

Time Sensitive: No

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 23, 2023

REDACTED, Esq., Parents’ Attorney — Student

REDACTED, District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 1, 2023

REDACTED, Esq., Parents’ Attorney — Student

REDACTED, District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 13, 2023

REDACTED, Esq., Parents’ Attorney — Student

REDACTED, District Representative — DOE

Observing Impartial Hearing Officer: — DOE

REDACTED, Esq. — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 28, 2023

REDACTED, Esq., Parents’ Attorney — Student

REDACTED — Parents

REDACTED, Educational Director at Provider Agency — Student

REDACTED, District Representative — DOE

Observing Impartial Hearing Officer: — DOE

REDACTED, Esq. — DOE

BACKGROUND AND POSITIONS OF THE PARTIES

On April 18, 2023, Parents,^[1] through counsel, filed a Due Process Complaint (“DPC”) against the New York City Department of Education (“DOE” or “the District”) pursuant to the Individuals with Disabilities Education Act (“IDEA”) 20 U.S.C. § 1400, et. seq., the Code of Federal Regulations, 34 C.F.R. §§ 300.130- 300.147, and Education Law § 3602-c, alleging that the District “failed to properly fulfill its equitable duties in the development and implementation of an educational program” for Student for the 12-month 2022-2023 school year (Ex. A-1). Specifically, Parents allege that, prior to the 2022-2023 school year, the Committee on Preschool Education (“CPSE”) had drafted an Individualized Education Program (“IEP”) recommending that Student receive special education and related services on a 12-month basis (“the October 2020 IEP”) (Ex. A-2). However, when the Committee on Special Education (“CSE”) convened on May 16, 2022, it created an Individualized Education Services Program (“IESP”) recommending special education and related services on a 10-month basis (“the May 2022 IESP”) (Ex. A-2). Parents disagree with the IESP, asserting that “the decrease in academic and related services from 12 months to 10 months [was done] in the absence of updated assessments and [was] contrary to the opinions of [Student’s] service providers” (Ex. A-2).^[2] Additionally, Parents assert that the District violated their right to meaningfully participate in the development of the IESP and failed to: evaluate Student in all areas of suspected disability; implement the last agreed upon IEP; and recognize Student’s need for “an enhanced, comprehensive, clinically supported, individualized, daily special education instructional program” (Ex. A 2-3). As relief, Parents seek an Order directing that the DOE fund: SEIT services, to be provided in a group, 10 periods per week;^[3] individual Speech-Language Therapy (“SLT”) to be provided two times per week for 30 minutes; and individual Occupational Therapy (“OT”) to be provided two times per week for 30 minutes, with SEIT services and SLT to be administered in REDACTED, ^[4] and all services to be funded on a 12-month basis, as per the October 2020 IEP (Ex. A-2, 3). Parents further seek an Order directing that each service be administered by a provider of Parents’ choosing and be funded at an “enhanced rate” (Ex. A-3). Parents seek an award of attorneys’ fees (Ex. A-3). ^[5]

District Representative concedes that the District failed to implement the recommended services and did not give Parent a list of DOE approved providers to implement the services (Tr. #2 112). ^[6] However, they maintain that the District provided Student an appropriate program through the IESP when Student “progressed out of” the program recommended by the October 2020 IEP and that Parent did not have the right to modify the May 2022 IESP on their own (Tr. #2 112). Further, District Representative maintains that: it was inappropriate for Provider Agency to administer special education and related services based on Parents’ wishes in disregard of the May 2022 IESP (Tr. #2 112); Director’s testimony was biased (Tr. #2 112); and the enhanced rates fund more than just Student’s services (Tr. #2 112-113). Upon my review of the record and applicable law, I find that the DOE failed to offer Student a FAPE on an equitable basis for the 2022-2023 school year by recommending SETSS instead of SEIT services and by failing to implement its own recommendations. For reasons described more fully below, I am ordering the District to fund: 1) SEIT services at a rate of $197 per hour as requested by Parents and 2) SLT and OT at a rate of $225 per hour as requested by Parents. I am further ordering that special education and related services be funded based upon a 36-week school year. I decline to order Extended School Year (“ESY”) services and to award attorney’s fees and expenses.

PROCEDURAL HISTORY

As of April 18, 2023, the date of the filing of the DPC, Student was attending “Private School” for their REDACTED year (Ex. H-1; Tr. #2 73). ^[7]

After the filing, the Resolution Period began. It ended on May 18, 2023, with no resolution reached (PHC Tr. 5).

On April 18, 2023, I was appointed Impartial Hearing Officer (“IHO”) for this case

On May 23, 2023, Parents’ Attorney and District Representative (“the Parties”) met with an Office of Administrative Trials and Hearings Settlement Officer for a Settlement Conference and thereafter met with me for a Pre-Hearing Conference (“PHC”).^[8] At the PHC, the Parties clarified the issues to be addressed, remedies sought, and the number of witnesses expected and their availability (PHC Tr. 9-14). Regarding the burden of proof, Parents’ Attorney stated their understanding as, “the burden is on the District . . . in this matter since it is a [sic] IESP case and not a tuition reimbursement case” (PHC Tr. 10). I explained that SRO opinions look at these cases through a “Burlington/Carter type analysis,” but I had no issue proceeding with the understanding that “the burden is on the District in this case” (PHC Tr. 10-11). When asked their position, District Representative stated that they would present a case (PHC Tr. 11). Due to scheduling difficulties, I scheduled the Due Process Hearing (“DPH”) for June 13, 2023^[9] and June 14, 2023, for the District to present their case, and for June 28, 2023, for Parents to present their case (PHC Tr. 14-26).^[10] I scheduled a Pendency Hearing for June 1, 2023 (PHC Tr. 5-9) and granted the Parties’ request to extend the compliance date (PHC Tr. 20, 25)

On June 1, 2023, I conducted a Pendency Hearing.

On June 13, 2023, I issued an Order on Pendency (IHO Ex. I).

On June 13, 2023, the Parties appeared before me for commencement of the DPH. After addressing the issues and remedies sought, we discussed the burdens of proof (Tr. #1 46-48). I relayed that at the PHC “we did discuss this is proceeding under a compensatory theory, not under the Burlington/Carter analysis,” and asked Parents’ Attorney if that was their understanding (Tr. #1 47). Parents’ Attorney responded, “since it’s not compensatory services, I think my understa-, that it was under the Burlington/Carter analysis, I do know it is for equitable services rather for [sic] tuition reimbursement case” (Tr. #1 47-48). I clarified that not all parties appearing before me agree that these types of cases should be analyzed pursuant to Burlington/Carter and that I did not believe there was a District Court opinion addressing whether Burlington/Carter should be applied (Tr. #1 48). I explained that my concern was ensuring the Parties each felt they had an appropriate record should they wish to appeal my decision (Tr. #1 48). I then specifically asked, “So [Parents’ Attorney], you’re going to proceed with the appropriateness, and, and I’ll still look at the equities in the, the, the way that the SRO has done it?” (Tr. #1 48). Parents’ Attorney responded affirmatively (Tr. #1 48). Regarding exhibits, District Representative explained that the only document they would have proffered was “the IEP, and it is already in the record as part of the Parent’s case” (Tr. #1 48-49). I specifically asked District Representative whether the exhibit to which they referred was proffered Exhibit B, the IEP dated October 20, 2020 consisting of 20 pages (Tr. #1 49). They responded that it was (Tr. #1 49). Parents’ Attorney submitted Exhibits A through I (Tr. #1 49-50). District Representative had no objection to the exhibits, and I admitted them into evidence (Tr. #1 50). Given that District Representative elected not to proffer any witnesses, I canceled the appearance scheduled for June 14, 2023 (Tr. #1 50-51). District Representative stated that they were not conceding Prong One, maintaining, “that the IEP speaks for itself” (Tr. #1 51-52). District Representative presented an opening statement (Tr. #1. 52), followed by Parent’s Attorney (Tr. #1 53-55).

On June 28, 2023, the Parties appeared for continuation of the DPH. Parents’ Attorney proffered the affidavit testimony of Educational Director at Provider Agency (“Director”) (Ex. J) and a document containing the proposed direct testimony of Testifying Parent (“Parent”) (Ex. K) (Tr. #2 62-66). District Representative had no objection to either exhibit, and I admitted both into evidence (Tr. #2 65-66).^[11] I requested that the May 2022 IESP be sent to me for inclusion in the record as an IHO Exhibit to complete the record (Tr. #2 66-67). Parents’ Attorney explained that they had not included it in their disclosure because “all the services are the same in that one. The parent believes this was a 12[-]month student, that’s why we submitted the 2020 [IEP]” (Tr. #2 67). District Representative had no objection to the introduction of the May 2022 IESP, stating, “we did not submit that as an exhibit because in my error, in reviewing it, I saw that the services were the, the same and assumed it was that one” (Tr. #2 67). District Representative “absolutely agree[d]” that the May 2022 IESP was needed to complete the record (Tr. #2 67). Upon my explaining to Parents’ Attorney that I also thought the May 2022 IESP was needed to address their claim that the District failed to “fully and timely evaluate the student in all areas of suspected disability,” Parents’ Attorney stated that the “reference [was to] the IESP before the reduction from 10 month[s] to 12 months . . .” (Tr. #2 67-68). I admitted the document as an IHO exhibit (Tr. #2 68, 75-76, 107-108). Director testified through affidavit, cross-examination, and examination by me (Ex. J; Tr. #2 72-86, 86-91). Parent testified through the written testimony, cross-examination, and examination by me (Ex. K; Tr. #2 96-104, 104-106). After denying District Representative’s requested to submit a written closing statement, I granted the Parties a recess to prepare their oral closing statements (Tr. #2 108-111). District Representative presented a closing statement (Tr. #2 112-114), followed by Parents’ Attorney (Tr. #2 114-116).

FINDINGS OF FACT

After a full review of the record generated at the hearing, I make the following findings of fact and determinations. Unless otherwise noted, I found both witnesses credible.

Student and Parent reside in New York City and Student attended Private School for the 2022-2023 school year (Ex. A; Ex. K-1). Private School is located within the geographic boundaries of the DOE.

The October 2020 IEP

On October 20, 2020, the CPSE convened to determine Student’s eligibility for services through the CPSE (Ex. B-1, 9, 10; Ex. K-1). At the time, Student was about to turn REDACTED years old (Ex. B-1, 10). Student presented with concerns in the areas of cognition, expressive/receptive language, social/emotional development, sensory processing, fine motor development and classroom functioning, all of which interfered with their ability to complete and participate in age-appropriate activities (Ex. B-11, 18). The CPSE relied upon various assessments and observations to develop Student’s IEP. Testing included the Stanford-Binet Intelligence Scale, Fifth Edition, the Vineland Adaptive Behavior Scales, the Brigance Diagnostic Inventory, the H.E.L.P.,^[12] the REDACTED Language Scales-5 REDACTED, the Goldman Fristoe Test of Articulation-3 (“Goldman Fristoe”), and a Sensory Profile, as well as informal and clinical observations (Ex. B-10-17)

Assessments revealed that Student’s cognitive ability was in the “Borderline Delayed” range, with full-scale, non-verbal and verbal IQ each measuring in that range (Ex. B-10). Student tested in the “Mild Deficit” range in communication, socialization and adaptive behavior, and in the “Moderately Low” range in daily living skills and motor skills (Ex. B-10-11, 15).^[13] Per another assessment, Student scored in the “Poor” range in cognition, expressive language, receptive language and social/emotional development (Ex. B-11, 14). Student demonstrated auditory and language processing delays (Ex. B-11). Per the REDACTED Student’s overall language skills were in the “Moderately Delayed” range (Ex. B-11). Student scored in the “Below Average” range in fine motor development (Ex. B-11, 15) and in the “Average” in gross motor development (Ex. B-11, 15).

Regarding academic development, Student understood “big and little,” could identify some body parts consistently, and could identify certain common objects (Ex. B-12). Student was able to follow some instructions (Ex. B-12, 13) and understood a few simple linguistic concepts and terms (Ex. B-13). Student had difficulty sorting by color, shape and type of object, showed little interest and poor strategies in using a shape sorter, did not understand spatial concepts, had difficulty with puzzles, did not utilize sufficient trial and error tactics, gave up easily when a task was not interesting to them, did not understand quantitative concepts, could not count by rote, and could not count using one-to-one (“1:1”) correspondence (Ex. B-12, 15). Student could not answer simple yes/no questions pertaining to them (Ex. B-12). Student did not understand age-appropriate concepts including early pronouns and spatial terms, and could not combine words (Ex. B-12). Student also did not play constructively and imaginatively with toys (Ex. B-11, 13, 15).

Student possessed “significant expressive language and verbal processing difficulties” (Ex. B-13). Relative weaknesses and delays were reflected in most nonverbal/visual motor skill tasks, such as recalling where objects were placed, understanding quantitative concepts, working with puzzles, sequencing and matching, and replicating designs with blocks (Ex. B-13, 15). Student also demonstrated weaknesses and delays in most verbal skills tasks, including understanding quantitative concepts, an inability to follow prepositional directives, and an inability to combine actions and objects (Ex. B-13). Student had begun to put two words together but generally not in spontaneous speech (Ex. B-14). Moreover, Student’s speech was unclear, making it difficult for others to understand them (Ex. B-13, 14). Questions and directions had to be repeated on a 1:1 basis because Student failed to understand them (Ex. B-12, 13). Student also required “constant 1:1 redirecting,” direct eye contact, prompting and hand-over-hand instructions (Ex. B-11, 13).

Student exhibited attentional challenges, including a short attention span, poor focusing skills, and a high level of distractibility (Ex. B-11, 12, 13, 14, 15). Student could not follow two-step directions (Ex. B-12) and had difficulty transitioning (Ex. B-14, 15). Student also required constant redirection (Ex. B-11). Student’s limited ability to focus and express themselves were considered “detrimental to [their] functionality in a classroom” (Ex. B-13).

Additionally, Student demonstrated “significant delays” in fine motor and graphomotor skills (Ex. B-11, 16). For example, Student presented with decreased strength in intrinsic hand musculature (Ex. B-17), and they exhibited immature grasp patterns, weak in-hand manipulation skills and an inability to control hand movements (Ex. B-11, 15, 16, 17).

In terms of sensory processing, Student had poor body awareness and poor danger awareness (Ex. B-14). Student had difficulty self-regulating, as demonstrated by throwing tantrums and crying easily (Ex. B-11, 14). Other sensory concerns included sensitivity to loud noises and being overwhelmed in multi-sensory environments (Ex. B-12, 16, 17).

Regarding socialization skills, Student had difficulty following the routine and structure of the classroom (Ex. B-11, 14). Student did not initiate play activities with other children and required prompting to join a peer-initiated activity (Ex. B-11, 14). Student would become easily frustrated and frequently resorted to aggressive behaviors in lieu of expressing themselves verbally (Ex. B-11, 12, 13, 14). Student would grab toys from other children, as well as hit, push, and kick other children for “no apparent reason” (Ex. B-11, 13, 14). Student was also aggressive toward teachers (Ex. B-11, 14).

Parent expressed many concerns, including regarding Student’s poor social skills, delayed aspects of speech, lack of speech clarity, inability to express themselves, failure to grasp basic concepts, difficulty processing information when asked questions, difficulty interacting with peers, sensory issues, difficulty performing fine motor skills tasks, and engagement in tantrums and aggressive behavior when unable to communicate needs and/or be understood by others (Ex. B-13, 14, 15).

As a result, the CPSE developed an IEP recommending SEIT services to be provided in REDACTED, as a direct service and in a group of three 10 hours per week; individual SLT to be provided in REDACTED two times per week for 30 minutes; and individual OT to be provided in English two times per week for 30 minutes (Ex. B-1, 5; 8; Ex. K-1; Ex. A-2). The IEP recommended that all special education and related services be provided on a 12-month basis “[t]o avoid regression” (Ex. B-6; Ex. K-1; Ex. A-2).^[14] The CPSE also recommended various management needs, including redirection, repetition, verbal prompts, visual cues, and assistance in regulating emotions and reactions (Ex. B-18). The projected date of annual review was October 20, 2021 (Ex. B-10).

The May 2022 IESP

On May 16, 2022, approximately five months before Student’s REDACTED birthday, the CSE convened to determine Student’s eligibility for services through the CSE and to develop an IESP for the 10-month 2022-2023 school year (IHO Ex. II-1, 12; Ex. K-1). Parent and Student’s SEIT Provider at the time attended the meeting (IHO Ex. II-12). The CSE relied upon The HELP Checklist^[15] and a SEIT observation, as well as information supplied by Parent and school personnel (IHO Ex. II-1). Student’s levels of performance were assessed in age ranges as follows: cognition in the 3.0 to 3.5 range; communication in the 2.8 to 3.1 range; social/emotional functioning in the 2.1 to 3.2 range; gross motor skills in the 2.8 to 3.4 range; fine motor skills in the 2.1 to 3.2 range; and activities of daily living (“ADLs”) in the 3.2 to 3.7 range (IHO Ex. II-1). ^[16]

Student identified all body parts and articles of clothing (IHO Ex. II-2). Student could also identify most common objects, but had difficulty describing their usage (IHO Ex. II-2). Student could rote count to 10 and use 1:1 correspondence counting up to 10 objects (IHO Ex. II-2). Student could sort by color, shape and size without assistance (IHO Ex. II-2). Student could also sequence three pictures, but had trouble using words to describe the pictures (IHO Ex. II-2, 4), and Student could listen to a story but had difficulty answering questions about it (IHO Ex. II-2). Student understood directional/positional concepts, spatial concepts, and opposites (IHO Ex. II-2, 3). Student avoided answering questions or talking about a lesson (IHO Ex. II-3). Student did not use the past tense, and could not follow three-step directions, ask questions, or answer complex questions (IHO Ex. II-3).

The CSE noted that Student’s speech or language deficits may inhibit their academic progress, and that Student’s limited progress deterred them from keeping up with peers (IHO Ex. II-1, 3, 5). In terms of receptive language skills, Student understood basic pronouns, but still had difficulty understanding gender pronouns, understanding qualitative and quantitative concepts, using “-er” endings, understanding complex sentences, and making inferences (IHO Ex. II-1, 3). Student exhibited “significant weaknesses” in expressive language skills (IHO Ex. II-2, 3). For example, Student spoke in “short choppy sentences,” used only three- to six-word sentences to express themselves, used incorrect grammar, confused tenses, used incorrect sentence structure, and demonstrated limited vocabulary (IHO Ex. II-2, 3). Student also could not repeat rhyming words (IHO Ex. II-3). Student could answer yes/no and basic questions, could ask simple questions, and understood inhibitory words (IHO Ex. II-1, 2, 3). Their expressive and receptive language skills made it difficult to answer questions in small and large groups settings (IHO Ex. II-2). Additionally, Student’s deficient articulation skills limited their ability to speak clearly and be understood by others (IHO Ex. II-1, 3). Their speech was unclear and often slurred (IHO Ex. II-2). Student presented with phonological processing deficits, such as weak syllable deletion and cluster simplification, had a lisp and could not produce certain sounds (IHO Ex. II-1-2, 3). It was determined that Student needed to develop age appropriate skills in the areas described above (IHO Ex. II-2, 3). Interventions were to include articulation drills, picture cards, games, books, worksheets, modeling, prompting, verbal cues, and visual cues (IHO Ex. II-2, 3).

Additionally, Student’s attending/focusing skills were found to be “somewhat delayed” (IHO Ex. II-4). Student was easily distracted and, when engaging in an activity perceived as difficult, they would give up (IHO Ex. 2, 3). Student required prompts and encouragement to begin and complete activities (IHO Ex. II-2). Student could follow two-step directions with prompting but had difficulty with three-step directions (IHO Ex. II-2, 3). Student was reluctant to ask for help (IHO Ex. II-4).

School personnel “expressed concern regarding [Student’s] social development” (IHO Ex. II-4). Student engaged in parallel play or observed others playing (IHO Ex. II-2, 4). Student required prompting to participate in small group interactions (IHO Ex. II-4). Although Student enjoyed being in the presence of other children, Student could be possessive over toys and belongings and exhibited difficulty sharing and taking turns (IHO Ex. II-4). Student was fidgety during group activities and was easily distracted (IHO Ex. II-4). Student required prompting during independent work time, was reluctant to ask for help when needed and would “give up easily” or push a task away that they perceived as too difficult (IHO Ex. II-4).

Student exhibited physical development challenges, as well. Student was observed to: require prompting to hold paper in place when drawing; hold writing implements with a fisted grasp; and demonstrate “slight difficulty” controlling hand movements (IHO Ex. II-4). Gross motor skills were delayed as well (IHO Ex. II-4). Student had decreased strength, low muscle tone, and difficulty with balance and coordination (IHO Ex. II-4). Student was also “overly cautious,” clumsy, and would trip and fall easily (IHO Ex. II-4, 5). As a result, the CSE developed an IESP recommending the following special education and related services for a ten-month school year: SETSS, Direct Service/Individual Service, five periods per week to be administered in English; SETSS, Direct Service/Group Service, five periods per week to be administered in English; individual SLT to be provided in English two times per week for 30 minutes; and individual OT to be provided in English two times per week for 30 minutes (IHO Ex. II-9-10; Ex. K-1). The CSE also recommended management needs consisting of positive reinforcement, verbal/visual cues, and repetition (IHO Ex. II-5). The CSE listed 10 goals for Student to address SLT, OT and general educational skills, but one of those goals was repeated (IHO Ex. II-6-9). Services were to begin on September 1, 2022 (IHO Ex. II-1, 9-10). Parent agreed with the recommendations (IHO Ex. II-1).

The CSE’s recommendations resulted in a change from SEIT services to SETSS and a change from services to be provided throughout a 12-month school year to a 10-month school year (compare Ex. B-5 with IHO Ex. II-9-10).

Events Since the Creation of the May 2022 IESP- The Contract

The District did not implement any services for Student, and Parent contacted Provider Agency (Ex. K-1, 2; Tr. #2 97).

On August 11, 2022, Non-Testifying Parent signed a contract with Provider Agency (Ex. C; Tr. #2 87-88, 105). The contract does not list any specific services to be provided to Student or over what time period services would be administered (Ex. C). A rate sheet documenting rates for various services is included with the contract (Ex. C-4). Parent discussed the contract and paperwork during the intake process, and understood the rates to be $197 per hour for SEIT services and $225 per hour for SLT and OT (Ex. K-2; Tr. #2 101-102). Per the contract, it is Parent’s “responsibility to pay any balance of any fee that is not covered by the NYC Department of Education (DOE) prospective payment [sic]” (Ex. C-3).^[17] Parent understood that they would need to sue the District for the District to pay for the services, and that if the District did not pay for the services, Parent would be responsible to do so (Tr. #2 102). Parent testified that if funding was not ordered, “I guess it would fall on me but it’s very expensive so I don’t know, right?” (Tr. #2 105).

As part of the contract, Provider Agency agreed to be available to prepare Parent for any CSE meetings and to prepare Parent with Parent’s legal representative for the impartial hearing (Ex. C-2; Tr. #2 102-103). By signing the contract, Non-Testifying Parent also consented to Provider Agency speaking with Parents’ attorney and “review[ing] every request for an Impartial Hearing” (Ex. C-2; Tr. #3 102). Provider Agency’s attorneys advised Parent on how to conduct themselves at the CSE meetings and what to say to prepare for the DPH to obtain funding for Provider Agency (Tr. #2 104).

SEIT services from September 8, 2022 through June 30, 2023 totals $78,800 and is based on 40 weeks of services (Ex. J-3). SLT and OT each total $9,000 based on 40 weeks of services (Ex. J-3).

Events Since the Creation of the May 2022 IESP- The Decision to Administer Services Based on the October 2020 IEP

Although Student was recommended to receive SETSS, Parent testified that they did not want Student to receive SETSS (Tr. #2 98). During the intake process, Director reviewed Student’s IESP, evaluations, progress reports and other clinical materials to determine if Provider Agency could administer appropriate services (Ex. J-2; Tr. #2 74-76). At the time, Director was aware that the CSE had recommended a 10-month program (Tr. #2 79). Director and Parents discussed that Student’s social-emotional development was “[a] big concern” (Tr. #2 74-75, 77). Per Director, Parent also wanted the SEIT services because “the SEIT recommendation was a 12 month [sic] recommendation while the SETSS recommendation was only 10 months” (Tr. # 2 77, 78). Parents were concerned that “while [Student’s] school operates [for] 12 month[s],” if Student did not receive services for 12 months, Student would regress (Tr. #2 77). Although Director was unaware whether Parent held any “professional credentials in this field,” Director explained that it is Provider Agency’s “practice to sit with the parents, review the documents and to determine what’s the most appropriate plan moving forward so that the child can remain in a mainstream setting and be functional” (Tr. #2 80-81). Per Director, parents have the “ultimate” decision because they are retaining legal counsel to seek funding for services (Tr. #2 81). During their testimony, Director responded, “Yes,” when asked, “[B]y continuing with the SEIT programming, the parent is able to get two additional months of services through the District, correct?” (Tr. #2 78).

Events Since the Creation of the May 2022 IESP- The Provision of Services

Provider Agency administered ten hours of SEIT services to Student (Ex. J-3; Ex. K-2; Tr. #2 73-80). They also administered one hour per week of SLT and one hour per week of OT to Student (Ex. J-3; Ex. K-2). Provider Agency began administering services in September 2022 (Tr. #2 89-90). ^[18]

Student’s services were provided at Private School (Ex. J-4). Services were “typically provided both inside the classroom as push-in sessions and 1:1 in a separate location” (Ex. J-4; Ex. I-1). These sessions were individualized and included a “great deal of specialized instruction” (Ex. J-4).

Student’s SEIT services were administered by SEIT Provider (Ex. J-3). SEIT Provider is certified by New York State to teach students with disabilities, having been certified in 2008 (Ex. J-3; Ex. F). SEIT Provider is also trained to teach literacy and comprehension to school-aged students and adolescents (Ex. J-3). Educational Supervisor oversaw SEIT Provider’s work (Ex. J-3-4). In addition to providing 1:1 service for Student, SEIT Provider prepared for sessions, created goals, wrote progress reports, and met with teachers and parents (Ex. J-4; Tr. #2 81). The service plan, including the goals, were determined upon intake and enrollment, after reviewing the information Parents provided and their input (Tr. #2 81-82). Student’s SLT was provided by a registered Speech-Language Pathologist (“SLP”) (Ex. J-3; Ex. E).^[19] Student’s OT was provided by Occupational Therapist, who received their license in September 2001 (Ex. J-3; Ex D-1, 2). Student’s progress was measured through quarterly assessments, meetings between SEIT Provider and staff, direct observations, and daily session notes (Ex. J-4; Tr. #2 82). Director observed Student twice during the school year (Tr. #2 82) and met with the supervisors each week (Tr. #2 84). SEIT Provider and Educational Supervisor monitored Student’s progress (Tr. #2 82-83, 84). Student made progress with these services (Ex. J-4; Tr. #2 90). For example, with SEIT services, Student started to: understand how words are read; recognize letters in their name; retell stores with verbal prompts; use words to communicate with peers in a controlled setting; name emotions; and ask questions (Ex. I-2-5). With OT assistance, Student began holding their pencil using a tripod grasp more often and sustaining the proper grasp for longer periods of time, and was playing with more age-appropriate fine motor toys (Ex. G-2). With SLT assistance, Student could produce the “sh” sound with visual and verbal prompts and learned to produce the /r/ sound (Ex. H-3).

Provider Agency charged $197 per hour for SEIT services/ SETSS and $225 per hour for SLT and OT (Ex. J-3; Ex. K-2; Tr. #2 84, 101; Ex. C-4). SEIT Provider received $100 per hour for their work with Student (Ex. J-3; Tr. #2 86). SLP and Occupational Therapist each earned $160 per hour for their work with Student (Ex. J-3; Tr. #2 86). The remainder of the charged rates funded: 1:1 supervision; educational resources and support; professional development; materials, employment taxes; administrative costs; and overhead costs (Ex. J-2; Tr #2 84-88). Provider Agency also offered monthly professional development to its providers focusing on special education teaching methods and research-based teaching strategies (Ex. J-3; Tr. #2 84-85). These services were supports needed for students to make progress (Tr. #2 85-86).

Provider Agency believes that Student’s “academic and social delays warrant” the continuation of SEIT and related services (Ex. G-3; Ex. H-3; Ex. I-5; Ex. J-4; Tr. #2 83). ^[20]

LEGAL STANDARDS AND FRAMEWORK

FAPE

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).

Dual Enrollment

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). The IDEA confers no individual entitlement to special education or related services upon students who are enrolled by their parents in nonpublic schools. See 34 C.F.R. § 300.137(a). Under State law, however, parents who have privately enrolled their child in a nonpublic school may seek educational "services" for their child with a disability by filing a request in the district 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. See Educ. Law § 3602-c(2). Then, the district of location's CSE must review the request 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)(l).

Burden of Proof

Generally, the burden of proof is on the school district during an impartial hearing. 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). I recognize that State Review Officers (“SROs”) with the New York State Office of State Review analyze these types of “enhanced rate SETSS” matters using different frameworks. At least one SRO uses a modified Burlington/Carter standard (see e.g. Application of the New York City Department of Education, Appeal No. 23-071), while at least one other SRO uses a compensatory services analysis (see e.g. Application of the New York City Department of Education, Appeal No. 23-065). I have analyzed this matter using a compensatory services analysis. ^[21]

On May 23, 2023, at the PHC, I discussed the burden of proof with the Parties. Parents’ Attorney stated their understanding as, “the burden is on the District . . . in this matter since it is a [sic] IESP case and not a tuition reimbursement case” (PHC Tr. 10). I explained that SRO opinions look at these cases through a “Burlington/Carter type analysis,” but had no issue proceeding with the understanding that “the burden is on the District in this case” (PHC Tr. 10-11). When asked their position, District Representative stated that they would present a case (PHC Tr. 11).

On June 13, 2023, at the outset of the DPH, I relayed that at the PHC “we did discuss this is proceeding under a compensatory theory, not under the Burlington/Carter analysis,” and asked Parents’ Attorney if that was their understanding (Tr. #1 47). Parents’ Attorney responded, “since it’s not compensatory services, I think my understa-, that it was under the Burlington/Carter analysis,” and responded in the affirmative when I specifically asked, “So [Parents’ Attorney], you’re going to proceed with the appropriateness, and, and I’ll still look at the equities in the, the, the way that the SRO has done it” (Tr. #1 48). However, in both their opening and closing statements Parents’ Attorney explained that this was not a tuition reimbursement matter requiring Parents to establish the appropriateness of the placement and “[i]nstead, the burden of proof, persuasion and production lies squarely with the DOE” (Tr. 54, 114-115). Given that the District was aware at the PHC that we would be proceeding pursuant to a compensatory services analysis, and given Parents’ Attorney’s opening and closing statements, I have not used the modified Burlington/Carter standard.

Overview- The CSE’s Recommendations versus the CPSE’s Recommendations

At the outset, and contrary to Parents’ Attorneys’ assertions, I find that the CSE did not modify, reduce or eliminate any services to Student when the CSE recommended SETSS instead of SEIT services and recommended that special education and related services be provided on a 10-month basis instead of a 12-month basis (Ex. A-2; Tr. #1 53). Generally, the CPSE and the CSE are each entrusted to evaluate students, determine if those students are entitled to special education and/or related services, and if so entitled, to draft IEPs or IESPs that are reasonably calculated to enable those students to make progress appropriate in light of their circumstances. However, they are two different bodies that evaluate students using different models.

Given the different perspectives, the two bodies may offer different recommendations even if they review the same or similar information. The CSE’s recommendations may result in an effective change or reduction (or even an increase) in special education and related services. Here, I do find that, effectively, Student’s special education and related services were changed from services recommended on a 12-month basis to a 10-months basis. However, the CSE did not modify or reduce the CPSE’s recommendations. Ultimately, in this matter, I must determine whether the CSE created an appropriate IESP for Student– not whether it was appropriate based upon a comparison with the CPSE’s October 2020 IEP.

The District’s Recommended Program and the Provision of a FAPE on an Equitable Basis^[22]

The May 2022 IESP recommends that Student receive: SETSS as an individual service, five periods per week, and as a group service five periods per week, SLT as an individual service, two times per week for 30 minutes, and OT as an individual service, two times per week for 30 minutes, with all services to be administered on a 10-month basis (IHO Ex. II-9-10; Ex. K-1). The Parties do not dispute that Student is entitled to the SLT and OT as recommended, and therefore, I have not addressed the propriety of the recommendations for those services. In addition, the Parties do not dispute that Student is entitled to 10 hours of special education services. Accordingly, regarding whether the District provided Student a FAPE on an equitable basis, the only issues in dispute are the District’s recommendations of SETSS instead of SEIT services and the District’s recommendation that services be provided on a 10-month basis instead of a 12-month basis.

The CSE’s Recommendation of SETSS Instead of SEIT Services

I find that District Representative failed to meet their burden to prove that the May 2022 IESP provided Student a FAPE on an equitable basis for the 2022-2023 school year. Putting aside that District Representative mistakenly failed to introduce the May 2022 IESP into evidence, District Representative presented no other evidence or witnesses to meet their burden. The Supreme Court has found that “[a] reviewing court may fairly expect those authorities [school district staff] to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.” Endrew F., 137 S. Ct. at 1002. Here, by electing not to present a case, the District offered absolutely no explanation, let alone a cogent and responsive explanation, for the CSE’s program recommendations. Further, Parent is entitled to a presumption as to the truth of the asserted facts underlying their claims that are contained in the documentary evidence and testimony to the extent they are credible and not contradicted by the hearing record.

Additionally, a review of the record herein establishes that the weight of the evidence supports the conclusion that the District failed to offer Student an educational program reasonably calculated to offer a FAPE on an equitable basis for the 2022-2023 school year.

The May 2022 IESP reflects that Student’s social/emotional development was assessed at the 2.0 to 3.2 age range, even though Student was almost REDACTED months old (IHO Ex. II-1). Moreover, school personnel “expressed concern regarding [Student’s] social development” (IHO Ex. II-4). Although Student enjoyed being in the presence of other children, Student would engage in parallel play or observe from the side (IHO Ex. II-2, 4). Student would also jump from one activity to another and required prompting to participate in small group interactions (IHO Ex. II-4). Student could be possessive over toys and belongings and exhibited difficulty sharing and taking turns (IHO Ex. II-4). Student was described as possessing “somewhat delayed” attending/focusing skills, being easily distracted and being fidgety during group activities (IHO Ex. II-4). Student required prompting during independent work time, was reluctant to ask for help when needed and would “give up easily” or push a task away that they perceived as too difficult (IHO Ex. II-4).

I recognize that SEIT services are generally reserved for preschool students with disabilities. See

Educ. Law § 4410(1)(k); 8 NYCRR § 200.16(i)(3)(ii). Director confirmed this, explaining that “primarily in preschool, a child will be eligible for SEIT if they meet the criteria for support. When a child ages out of preschool . . . if they’re testing or if the DOE feels that they still need services, they would recommend SETSS” (Tr. #2 73). I find that Student is older than REDACTED and, statutorily, would not be entitled to SEIT services.

However, Director further explained that “given that the child has a lot of social[/]emotional needs which, which the SETSS is unable to [cater] to, the parents had made a decision to continue . . . with the preschool recommendation to ensure that” all of Student’s needs are met (Tr. #2 74). Director testified that SETSS are “typically group based, educational based” and focused on academics (Tr. #2 73, 78). By contrast, SEIT services address social-emotional issues in addition to academic concerns (Tr. #2 78). Director could not say that one issue took precedence over the other, but that SEIT would address both (Tr. #2 78).

Here, the District failed to explain how the recommended hours of SETSS would address Student’s social/emotional challenges. They also failed to explain how the management needs, which consisted of “positive reinforcement, verbal/visual cues and repetition” (IHO Ex. II-5), would support Student’s social/emotional needs. Finally, the District failed to explain how the goals were designed to address these needs. Of the nine goals drafted, only three pertained to SETSS and all three were vague and addressed cognitive skills (IHO Ex. II-8-9).

Accordingly, I find that the District failed to prove that the May 2022 IESP, and in particular, the recommendation of SETSS and not SEIT services offered Student a FAPE on an equitable basis. Although I have found that Student is entitled to SEIT services, I am concerned about how it came to be that Provider Agency began administering SEIT services to Student instead of SETSS. During the intake process, Director reviewed Student’s IESP, evaluations, progress reports and other clinical materials to determine if Provider Agency could administer appropriate services (Ex. J-2; Tr. #2 74-76). At the time, Director was aware that the CSE had recommended a 10-month program (Tr. #2 79). Director and Parents discussed that Student’s social-emotional development was “[a] big concern” (Tr. #2 74-75, 77). Director further testified, “[a]nd I will add that another big factor in why . . . the parents have chosen to go with the . . . SEIT . . . because the SEIT recommendation was a 12 month [sic] recommendation while the SETSS recommendation was only 10 months” (Tr. # 2 77, 78). Parents were concerned that “while [Student’s] school operates [for] 12 month[s],” if Student did not receive services for 12 months, Student would regress (Tr. #2 77). Director maintained that although Director was unaware whether Parent held any “professional credentials in this field,” “the parents know their child best in terms of their functioning, their development, their progress. [Parent] is a very active parent and at the end of the day, [Parent is] ultimately the one who will, you know, educate [their] child best” (Tr. #2 80). Accordingly, it is Provider Agency’s “practice to sit with the parents, review the documents and to determine what’s the most appropriate plan moving forward so that the child can remain in a mainstream setting and be functional” (Tr. #2 80-81), but parents have the “ultimate” decision because they are retaining legal counsel to seek funding for services (Tr. #2 81). As Director explained, “[w]e are their agent. We are their source of information and support. We explained to them the process and their responsibilities and then [it’s] their decision” (Tr. #2 78). Further, Director acknowledged that “by continuing with the SEIT programming, the parent is able to get two additional months of services through the District” (Tr. #2 78).

I find this testimony casts doubt on whether Parents and Provider Agency believed SEIT services were truly required or whether they were merely desired. I am also mindful that Parent agreed with the recommendations at the time they were drafted (IHO Ex. II-1). Parent voiced no objection to Student receiving SETSS at the time. Parents enrolled their child in a 12-month school and, understandably, wanted as many services for their child as possible. However, the IDEA ensures an “appropriate” education, “not one that provides everything that might be thought desirable by loving parents.” Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F. 2d 563, 567 (2d Cir. 1989). Additionally, school districts are not required to “maximize” the potential of students with disabilities. Rowley, 458 U.S. at 189; Walczak, 142 F.3d at 132.

The CSE’s Recommendation That Services be Provided on a 10-Month Basis

I find that Student is not entitled to receive special education and related services on a 12-month basis, and therefore, the CSE’s decision not to recommended ESY services did not result in a denial of a FAPE to Student.

Understanding that the burden is on the District to prove that Student did not exhibit a need for ESY, I find that this record is devoid of any evidence to support a finding that Student was at risk of substantial regression. Therefore, I decline to award 12-month services.

According to State regulation, the purpose of 12-month services is to prevent “substantial regression." 8 NYCRR § 200.6(k)(1); see also 8 NYCRR § 200.1(eee). "Substantial regression" is defined as "a student's inability to maintain developmental levels due to a loss of skill or knowledge during the months of July and August of such severity as to require an inordinate period of review at the beginning of the school year to reestablish and maintain IEP goals and objectives mastered at the end of the previous school year." 8 NYCRR § 200.1(aaa). In addressing a claim for ESY services, the District bears the burden to prove the student “did not exhibit a need for ESY services in order to prevent substantial regression.” C.H. v. Goshen Cent. Sch. Dist., 2013 U.S.

Dist. LEXIS 44991 (S.D.N.Y. 2013) (internal quotation omitted). The District may sustain its burden through the absence of evidence, particularly where evaluations have been conducted by professionals who have considered the issue and found no reasonable risk of substantial regression.

Id. Parent bears the burden of production on the issue of substantial regression. See D.D-S. v. Southold Union Free Sch. Dist., 2011 U.S. Dist. LEXIS 100809 (E.D.N.Y. 2011). Finally, New York State guidance requires that the CSE create a 6-week IEP only after a determination is made that a student requires ESY services. ^[23]

None of the evidence submitted in this matter supports a finding that Student requires ESY to prevent substantial regression. The CSE IESP does not mention regression. Neither do Parents’ exhibits.

Parents submitted three progress reports. I appreciate that Provider Agency had not administered services to Student over the Summer of 2022 and only began to provide services in September 2022. Accordingly, I find that each of the three providers might not have been in a position to speak directly to Student’s “loss of skill or knowledge during the months of July and August” to the degree that Student would have potentially required ESY services. However, I find that none of the providers discussed any skill loss during any period of time that might have indicated that Student needed ESY services. As to the recommendations, they were each fairly generic and made no mention of Student requiring any additional services or additional frequency or duration of services. SEIT Provider recommended that Student continue with 1:1 SEIT services because Student “is performing below level in both academic and social domains and requires specialized multi-sensory teachings and social programs” (Ex. I-5). SLP recommended that Student “continue receiving speech and language therapy in [their] current mandate so [they] can perform at an age-appropriate level in the classroom” (Ex. H-3). Occupational Therapist recommended that Student “continue to receive OT services twice weekly for thirty minutes” or Student “will surely fall behind in academic performance” (Ex. G-3). None of these statements indicate that Student was at risk of substantial regression requiring ESY services. See e.g., Application of a Student with a Disability, Appeal No. 23-019 (finding IHO did not err in finding insufficient basis to award compensatory education based on a 12-month school year after reviewing the totality of the circumstances where the information was “not particularly detailed with respect to the student's need for 12-month services,” and despite the fact that some of the fault “lies with the District”). There was also no testimony about substantial regression. The only mention of regression was that Parents enrolled Student in a 12-month school and were “concern[ed] . . . [Student] will regress” if Student does not receive services for 12 months (Tr. #2 77).

Accordingly, I decline to find a denial of a FAPE based on the decision not to recommend ESY services and I decline to award ESY services.

The District’s Failure to Implement Services Constitutes a Denial of a FAPE on an Equitable Basis

In addition to finding that the May 2022 IESP’s program did not provide Student a FAPE on an equitable basis for the 2022-2023 school year, I find that the District’s failure to implement any services deprived Student of a FAPE on an equitable basis. It is undisputed that the DOE failed to implement the ten hours of SETSS per week for Student or the recommended SLT or OT. In fact, the District conceded that the District failed to implement the recommended services and failed to even give Parent a list of DOE approved providers to implement the services (Tr. #2 112). Accordingly, I find that the District failed to meet its burden.

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).

The DOE had the obligation to provide services to Student in conformity with the IESP. See Educ. Law§ 3602-c(2)(a), (b)(l). By not doing so, the DOE failed to provide 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. 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.

Appropriateness of Parentally Selected Services

As explained earlier, I am using a compensatory services analysis and Parents’ Attorney stated in their opening and closing statements that they did not have a burden to prove the appropriateness of the services (Tr. #154; Tr. #2 114-115). However, should the Office of State Review employ the modified Burlington/Carter standard, I find that Parents’ Attorney has proven the appropriateness of the services they selected.

Given the District’s failure to implement the services it recommended in either the October 2020 IEP or the May 2022 IESP, I find that Parents were left with no option but to secure all services for Student. Among the considerations in determining whether a private placement selected by a parent is appropriate is whether the placement is likely to produce progress, not regression. See Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir 2017), quoting Walczak, 142 F.3d at 130. Moreover,

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

Gagliardo, 489 F.3d at 112, quoting Frank G. v. Bd. of Educ., 459 F.3d 356, 364-365 (2d. Cir 2006). A similar analysis is beneficial in a case like this, where a parent selects services for their child after the District fails to implement the IESP.

Parents submitted a SEIT Progress Report dated May 11, 2023, in which SEIT Provider documented: Student’s then-present level of functioning, including in Reading Comprehension, Math, Social Skills, and Language; Student’s strengths and weaknesses; methodology used; goals including progress toward goals and new goals; and recommendations (Ex. I). ^[24]

In brief, SEIT Provider identified deficiencies in Student’s reading skills and used a multisensory approach, kinesthetic movement, and whole language and behavior modification methodology to address those concerns (Ex. I-1). In reading comprehension, SEIT Provider prompted Student to help them respond verbally to questions and make predictions (Ex. I-2). To address Student’s delays in Math, SEIT Provider employed counters and visuals to assist with basic addition and counting to 20 (Ex. I-3). SEIT Provider implemented various techniques to address Student’s attentional challenges, such as repeating questions and information, refocusing Student throughout an activity, using verbal reinforcement and praise, and providing sensory materials (Ex. I-3, 4). To address socialization skills, SEIT Provider used modeling, role play and social stories (Ex. I-4).

Student made progress with these services. For example, Student began to recognize how words are read and to ask more questions. Student began to: recognize letters in their name; retell stores with verbal prompts; use words to communicate with peers in a controlled setting; and name their emotions (Ex. I-2-5). ^[25]

Parents also submitted a Speech Therapy Progress Report dated January 31, 2023. SLP Therapist documented: Student’s then-present level of functioning, including strengths and weaknesses; methodology used; goals including progress toward goals and new goals; and recommendations (Ex. H). Informal testing conducted on September 21, 2022 confirmed delays in receptive and expressive language, phonemic awareness and articulation (Ex. H-1). SLP documented specific issues within each area of need and methods used to address them (Ex. H-1, 2, 3). For example, SLP employed articulation drills, tactile prompts, visual feedback, language worksheets, flashcards, workbooks “wh” questions, sequencing cards, and positive reinforcement (Ex. H-1, 2, 3). Student made some progress, such as being able to produce the “sh” sound with visual and verbal prompts and the /r/ sound (Ex. H-3).

Additionally, Parent submitted an OT Progress Report dated January 5, 2023 documenting: Student’s then-present level of functioning, including strengths and weaknesses; methodology used; goals including progress toward goals and new goals; and recommendations (Ex. G). Occupational Therapist noted that Student “shuts down or becomes frustrated easily” and will become distracted, silly, and occasionally leave an activity Student perceives as challenging or not interesting (Ex. G-1, 2). Occupational Therapist identified other areas requiring assistance such as delays in core and upper extremity strength, which result in instability which results in fine motor and fine coordination deficits, including grasping and manipulation skills (Ex. G-1, 2, 3). Student also presented with “some difficulty” following motor commands and motor planning activity, which also affect academic performance (Ex. G-1, 2). To address strength, Occupational Therapist incorporated core strengthening exercises, as well as upper extremity and hand strengthening games (Ex. G-2). To address issues in motor planning and following directions, Occupational Therapist used table-top activities and sensory input such as scooter boards and therapy balls (Ex. G-2). Occupational Therapist also worked with Student on pre-writing, coloring and worksheets (Ex. G-2).

Student made some progress toward goals, such as holding their pencil using a tripod grasp more often and sustaining the proper grasp for longer periods of time, and Student learned to play with more age-appropriate fine motor toys (Ex. G-2).

Finally, although the CPSE recommended that SEIT services be provided in a group and the CSE recommended that five of the ten hours of SETSS be provided in a group, but the services are being administered individually (Ex. B-5; Ex. J-4; Ex. I-1; IHO Ex. II-9-10), based upon my consideration of the totality of the circumstances, I do not find the services inappropriate. See Application of a Student with a Disability, Appeal No. 23-033 (finding that the provision of individual instead of group SETSS did not render the services inappropriate because “the parent may be afforded some leeway in locating services for the student, since identifying an appropriate group setting for the student to receive her unilaterally provided SETSS in the private school may not have been possible and the district could have avoided this problem by implementing the recommendation for direct group SETSS.”)

In sum, I find that the services selected by Parents were appropriate.

REMEDIES

Compensatory Relief

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. See 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).

A hearing officer may award compensatory education relief in the form of supplemental special education or related services when there has been a denial of FAPE. See P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008). An award of compensatory services may be appropriate if a student has been denied appropriate services for an extended period of time, and if such deprivation of instruction can be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation. An award of additional services should aim to place a student in the position he or she would have been in had the district complied with its obligations under the IDEA. See P. v. Newington, 546 F.3d at 123. Compensatory education can serve as a “replacement of educational services the child should have received in the first place,” and any award “should aim to place disabled children in the same position they would have occupied but for the school district’s violations of IDEA[.]” Reid v. Dist. of Columbia, 401 F.3d 516, 518 (D.C. Cir. 2005); see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 (11th Cir. 2008) (holding that “[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act”).

Compensatory education awards may include payment for out-of-pocket educational expenses incurred by a parent for services not delivered to a student, provided the school district’s failure to provide those services constitutes a denial of FAPE and the services are an appropriate remedy. See Foster v. Bd. of Educ. of the City of Chicago, 611 Fed App’x 874, 878-79 (7th Cir. 2015). Furthermore, under the IDEA, compensatory education awards can provide for direct payment to private providers. See Indep. Sch. Dist. No. 283 v. E.M.D.H., 2022 WL 1607292, at *3 (D. Minn. 2022), citing Indep. Sch. Dist. No. 283 v. E.M.D.H., 960 F.3d 1073, 1084-85 (8th Cir. 2019).

In this case, the DOE did not carry its burden. As noted above, New York State law places the burden of production and persuasion in this type of case entirely on the DOE. See N.Y. Educ. Law § 4404(1)(c). The DOE is, therefore, required to address its burdens by describing its views, based on a fact-specific inquiry set forth in an evidentiary record, regarding an appropriate compensatory education remedy that would most reasonably and efficiently place Student in the position that Student would have been but for the denial of a FAPE. See Application of a Child with a Disability, Appeal No. 22-004; see also M.M. v. NYC Dep’t of Educ., 2017 WL 1194685, at *4 (S.D.N.Y. Mar. 30, 2017); Educ. Law § 4404(1)(c); Doe v. E. Lyme, 790 F.3d at 457; and Reid, 401 F.3d at 524. The District did not present any evidence during the DPH to set forth its position regarding the appropriate compensatory remedy.

Parents have asked that I fund 10 hours of SEIT services per week at the rate of $197 per hour, one hour of SLT at a rate of $225 per hour and one hour of OT at $225 per hour (Ex. F-3; Tr. 16-17; Ex. A-4). In their closing statement, District Representative asserted that “[t]he District’s enhanced rate for related services is between $125 and $175 an hour for all its approved providers” (Tr. #2 113) and that I should deny funding altogether or order funding in accordance with those rates (Tr. #2 113-114). Specifically, District Representative contended that the rates charged “do[] not just include that for the direct service being provided to the students, but also up charges included to keep their doors open” (Tr. #2 113). In their closing statement, Parent’s Attorney asserted that the DOE “did not put forth any justification” for their request that I reduce the rate charged (Tr. #2 115).

First, I find that the DOE failed to present any evidence regarding their assertion that SETSS, SLT or OT should be funded at a rate between $125 and $175 per hour.

Second, I find that the rates sought are not unreasonable. Although District Representative cross-examined Director about the rates, I find that Director credibly explained why their rates are set as they are. Provider Agency charged $197 per hour for SEIT services/ SETSS and $225 per hour for SLT and OT (Ex. J-2; Ex. K-2; Tr. #3 84, 101; Ex. C-4). SEIT Provider received $100 per hour for their work with Student (Ex. J-3; Tr. #2 86). SLP and Occupational Therapist each earned $160 per hour for their work with Student (Ex. J-3; Tr. #2 86). A portion of the remainder of the charged rates funded: 1:1 supervision; educational resources and support; professional development; materials, employment taxes; administrative costs; and overhead costs (Ex. J-2; Tr #2 84-88). Provider Agency also offered monthly professional development to its providers focusing on special education teaching methods and research-based teaching strategies (Ex. J-3; Tr. #2 84-85). Director testified that these services were supports that were necessary for students to make progress (Tr. #2 85-86). I find District Representative’s assertion that “the amount they charged does not just include that for the direct services being provided to the students but also up charges included to keep their doors open” (Tr. #2 113) irrelevant and unavailing. It was the District’s obligation to provide the services they deemed necessary for this Student to access their education. Having failed to do so, Parent secured those services. The District should not be surprised that Provider Agency wants to keep its doors open, and I am unaware of any case or statute prohibiting an agency from charging more than what it pays its direct providers.

Accordingly, I am ordering that the DOE fund ten hours of SEIT services at a rate of $197 per hour and SLT and OT at a rate of $225 per hour.

Analysis of Rates Using the Modified Burlington/Carter Standard

Had I used the modified Burlington/Carter standard, I would have reached the same result. In determining whether a provider agency’s rates are reasonable and appropriate under the circumstances, various factors have been found relevant, including: the provider’s explanation of the rate, including its costs and the qualifications of its instructors (Application of a Student with a Disability, Appeal No. 20-140 [while “[g]enerally, teachers at a unilateral placement need not be State-certified . . . there must be objective evidence of special education instruction or supports that are specially designed by . . . providers . . . who have reasonable qualifications that are specifically related to the student’s deficits”]); the value that specialized certification, such as a bilingual extension, adds to instruction (Application of a Student with a Disability, Appeal No. 21-183 [approving compensatory SETSS by a bilingual reading specialist at a rate not to exceed $200 per hour]); and the parent’s efforts to locate a DOE-approved SETSS provider from a list provided by the District to the parent (Application of a Student with a Disability, Appeal No. 21-096). Additionally, one must look to whether the parent directly paid the provider or is contractually obligated to pay the provider in the event the District is not ordered to fund SETSS at the requested rate. See e.g. Application of a Student with a Disability, Appeal No. 21-068 (holding that “it is not appropriate equitable relief . . . to require the district to either reimburse the parent for the costs of SETSS or to directly fund SETSS” where “there is inadequate proof that the parent has expended any funds to pay for SETSS . . . or is legally obligated to do so”). Ultimately, in light of these factors, I must determine whether the requested rate is unreasonable. See e.g., Application of a Student with a Disability, Appeal No. 21-138 (determining that “there is no basis for a finding that the rate of $175 was unreasonable”).

Finally, I would consider when the Parent notified the District of the enhanced rate claim. as this establishes the first date upon which the District would have had an opportunity to modify its offered rate for SETSS and related services in light of Parents’ claims. See id. (finding further that despite the per se reasonableness of the rate, a reduction in rate that had been imposed by the IHO was justified where the parent did not provide a ten-day notice (TDN), per 20 U.S.C. § 1412[a][10][C][iii] and 34 C.F.R. § 300.148[d][1]).

Equitable Considerations, Including Rate Requested and TDN

As explained, I credit the Director’s explanation of the rate.

I further find that the enhanced rates are reasonable given the qualifications of the providers. SEIT Provider has been certified by NYS to teach students with disabilities for approximately 15 years, having been certified in 2008 (Ex. J-3; Ex. F). Direct Provider is also trained to teach literacy and comprehension to school-aged students and adolescents (Ex. J-3; Ex. F). The Occupational Therapist administering OT to Student received their license over 20 years ago, in September 2001 (Ex. J-2; Ex D-1, 2). Finally, although SLP’s Registration Certificate is undated, Director testified that they believe SLP had been licensed or certified at least 10 years ago (Tr. #2 91).

Additionally, I find no reason to decrease the requested rate based on Parent’s efforts to locate a DOE SETSS provider from a list provided by the District. District Representative conceded that the District failed to provide such a list to Parent (Tr. #2 112). I also decline to reduce the rate based on the Parent’s own efforts to locate a provider. District Representative cross-examined Parent on their statement that Student would not have had special education for the 2022-2023 school year without Provider Agency (Ex. K-2; Tr. #2 99-100). I find Parent testified credibly that Parent could not recall whether they had contacted another agency for services. I also find their testimony credible and reasonable that they learned about Provider Agency through a friend, and that once Parent spoke with Provider Agency, they decided not to look at any other agencies (Tr. #2 99-100). Given that the District abdicated its responsibility and improperly shifted it to Parent, the District should not complain that Parent did not call a number of potential providers before engaging one.

Furthermore, I find that Parents are legally obligated to pay Provider Agency should they not prevail in this matter. On August 11, 2022, Non-Testifying Parent signed a contract stating that it is Parent’s “responsibility to pay any balance of any fee that is not covered by the NYC Department of Education (DOE) prospective payment [sic]” (Ex. C-3; Tr. #2 87-88, 105). Although Parent did not sign that contract, Parent testified that they knew Non-Testifying Parent had signed it (Tr. #2 105). Parents also discussed the contract and paperwork during the intake process (Tr. #2 101-102). The rates for various services are included with the contract (Ex. C-4), and Parent understood the rates at which they were contracting for services (Ex. K-2; Tr. #2 101). Moreover, Parent understood that they would need to sue the District for the District to pay for the services, and that if the District did not pay for the services, that Parent would be responsible to do so (Tr. #2 102, 105).

Finally, although it would be within my purview to reduce the rates for Parents’ failure to provide the District a TDN, it is not required and I decline to do so.

Direct Funding for SEIT and Related Services

Parent seeks direct funding to Provider Agency for the SEIT services, SLT and OT administered during the 2022-2023 school year (Tr. #1 54-55; Tr. #2 115-116). As explained above, Parent is legally obligated to pay Provider Agency $197 per hour for SETSS and $225 per hour for SLT and OT (Ex. K-2; Tr. #2 101-102, 105; Ex. C-4). The Agreement further provides that it is Parent’s responsibility to pay any balance not covered by prospective payment (Ex. C-3; Tr. #2 87-88, 105). I find that Parent is entitled to the requested form of payment.

As I have found that the District failed to provide Student services on an equitable basis for the 2022-2023 school year and that the services are appropriate, I find that Parent is not required to produce anything to satisfy the request for direct funding. See generally Cohen v. N.Y. City Dep't of Educ., 2023 U.S. Dist. LEXIS 171815 (S.D.N.Y. September 26, 2023) (stating, “[t]o require parents to fund their children's education in the first instance, unless they demonstrate an inability to pay—as the SRO did here—skews the equities underlying the IDEA and cases applying that law. Direct payment to the school simply requires the DOE to belatedly fund expenses that it was obligated to pay all along. Thus, where, as here, a private school is willing to enroll the student and the risk that it will take years to obtain payment, parents who satisfy the Burlington factors have a right to retroactive direct tuition payment.”) (internal citations omitted). See also generally Ferreira v. New York City Dep’t of Educ., 2023 U.S. Dist. LEXIS 43032 (S.D.N.Y. March 14, 2023) (noting that Court found no caselaw holding that “proof of inability to pay is required to establish the propriety of direct retrospective payment,” and that “where it is undisputed that the DOE is responsible for payment, and the DOE does not contest the reasonableness of the cost of tuition, it would be nonsensical to draw a distinction on equitable grounds between requiring the DOE to pay the school directly and forcing the parents to make an initial payment in the same amount that the DOE is then required to reimburse”). I, therefore, find that Parent is entitled to the requested form of payment.

As the Agreement is already in the hearing record, it need not be re-submitted (Ex. C).

Request for Funding for SEIT and Related Services Based on a 40-Week School Year

Director testified to “estimated amount[s] that will be charged” for SEIT services, OT and SLT based on 40 weeks of service (Ex. J-3). I find that a 10-month school year comprises 36 weeks, a reflection of the 180 instructional days divided by five days per week.^[26] Accordingly, I am ordering funding based on the 36-week 2022-2023 school year.

OTHER CONTENTIONS

Parents seek payment of attorney’s fees and expenses associated with representation in this matter (Ex. A-3). 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. I would be exceeding the scope of my authority by determining that Parents are the prevailing party entitled to attorney’s fees.

Other than the relief set out in my Order below, and my findings detailed in this section of “Other Contentions,” 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 Parents’ remaining claims not discussed herein are dismissed with prejudice.

ORDERS

IT IS HEREBY ORDERED that the Department of Education (“DOE”) shall directly fund for the 10-month, 36-week, 2022-2023 school year, individual Special Education Itinerant Teacher (“SEIT”) services five hours per week and group SEIT services five hours per week, with all SEIT services to be administered in REDACTED or English by a licensed special education teacher of Parents’ choosing at $197 per hour; and it is further

ORDERED that the DOE shall pay to Provider listed above within 35 days of receipt of invoices for services rendered and an accompanying sworn affidavit attesting that the services billed for were administered; and it is further

ORDERED that the DOE shall directly fund for the 10-month, 36-week, 2022-2023 school year, individual Speech Language Therapy (“SLT”) two times per week for 30 minutes, to be administered in REDACTED or English by a licensed Speech Language Therapist or Pathologist of Parents’ choosing at $225 per hour; and it is further

ORDERED that the DOE shall pay to Provider listed above within 35 days of receipt of invoices for services rendered and an accompanying sworn affidavit attesting that the services billed for were administered; and it is further

ORDERED that the DOE shall directly fund for the 10-month, 36-week, 2022-2023 school year, individual Occupational Therapy (“OT”) two times per week for 30 minutes, to be administered in English by a licensed Occupational Therapist of Parents’ choosing at $225 per hour; and it is further

ORDERED that the DOE shall pay to Provider listed above within 35 days of receipt of invoices for services rendered and an accompanying sworn affidavit attesting that the services billed for were provided; and it is further

ORDERED that if Parents request assistance finding a provider to provide the above services at any time, the DOE must locate three providers who are ready, willing, and able to begin providing the services to Student according to the terms of this order. If Parents present a good faith basis for rejecting the three providers, the DOE must locate two additional providers from which Parents may choose. The DOE shall not be required to identify more than five providers in any given six-month period. Nothing stated here prevents Parents from locating and utilizing a provider of their own choosing.

December 26, 2023

(signed electronically) _______________________________________________________________________________________

Ginger James 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- REDACTION IDENTIFICATION PAGE

Redacted Information Term Used In FOFD

REDACTED Student

REDACTED Parents

REDACTED Parent

REDACTED Non-Testifying Parent

REDACTED Parents’ Attorney

REDACTED District Representative

REDACTED Observing Impartial Hearing Officer

REDACTED Home District

REDACTED Service District

REDACTED Private School REDACTED Educational Director at Provider Agency

REDACTED Provider Agency

REDACTED SEIT Provider at Provider Agency

REDACTED Speech Language Pathologist at Provider Agency

REDACTED Occupational Therapist at Provider Agency

REDACTED Educational Supervisor at Provider Agency

APPENDIX B- DOCUMENTATION ENTERED INTO THE RECORD

PARENT EXHIBITS

A. Due Process Complaint 04/18/2023 (7 pages)

B. Individualized Education Program 10/20/2020 (20 pages)

C. Parent Contract 09/13/2022 (4 pages)

D. Occupational Therapist Certificate 09/10/2001 (2 pages)

E. Speech Therapist Certificate Undated (1 page)

F. Special Education Certificate 02/01/2008 (1 page)

G. Occupational Therapy Progress Report 01/05/2023 (4 pages)

H. Speech Therapy Progress Report 01/31/2023 (4 pages)

I. SEIT Progress Report 05/11/2023 (5 pages)

J. Provider Affidavit 06/06/2023 (4 pages)

K. Parent Affidavit Undated (2 pages)

DOE EXHIBITS

None

IHO EXHIBITS

I. Order on Pendency 06/13/2023 (4 pages)

II. Individualized Education Services Program 05/16/2022 (13 pages)

Footnotes

[1] No personal identifying information is contained within the body of this Findings of Fact and Decision (“FOFD”). For personal identifying information, please refer to the attached Appendix. Further, this FOFD contains no references to the gender binary. The pronoun “they” is used as needed

[2] As explained in further detail below, the CPSE recommended Special Education Itinerant Teacher (“SEIT”) services, whereas the CSE recommended Special Education Teacher Support Services (“SETSS”). In their DPC, Parent requests funding for SEIT services (Ex. A-3).

[3] On the October 2020 IEP, the CPSE worded the frequency of SEIT services as 20, 30-minute sessions per week (Ex. B-5). On the IESP, the CSE delineated the frequency of SETSS as five group periods and five individual periods per week (compare Ex. B-5 with IHO Ex. I-9). I deem one period to equal one hour of time. Unless directly quoting from a document or otherwise noted, I have used the term “10 hours” throughout this decision.

[4] The CPSE IEP recommended that SEIT and Speech Language Therapy be administered in REDACTED (Ex. B-5), but the CSE IESP recommended that those services be provided in English (IHO Ex. II-9-10).

[5] Parents also invoked pendency (Ex. A-2). As explained below, on June 13, 2023, I issued an Order on Pendency (IHO Ex. I).

[6] References to the transcript from the Pre-Hearing Conference are denoted “PHC Tr.” References to the Pendency Hearing are denoted “Pend. Tr.” References to the Due Process Hearing conducted on June 13, 2023 and June 28, 2023 are denoted “Tr. #1” and “Tr. #2,” respectively.

[7] The Progress reports list Student’s grade as Pre-1A (Ex. H-1).

[8] Settlement conferences are conducted by an OATH Settlement Officer or an OATH IHO not assigned to the case whose purpose is to aid the parties in exploring and facilitating a resolution to the DPC. Settlement conference discussions are confidential, and the parties are directed to attend with knowledge of the dispute and settlement authority should there be an interest in resolution. Settlement Conferences are not recorded.

[9] I scheduled a one-hour appearance for the morning of June 13, 2023, and a one-hour appearance for later that afternoon (PHC Tr. 18-19, 22-23).

[10] Due to a scheduling issue, and after conferring with the Parties, I later canceled the June 13, 2023 afternoon appearance (Pend. Tr. 36).

[11] Parent later attested under oath to the content of Exhibit K (Tr. #2 96).

[12] No explanation of the acronym appears in the IEP.

[13] On another assessment, Student scored in the “Below Average” range in adaptive behavior (Ex. B-15).

[14] The IEP Summary Page does not indicate that the services were recommended for 12 months (Ex. B-1).

[15] No explanation of the Checklist appears in the IESP.

[16] Despite the assessed age range for ADLs, Student’s adaptive skills were deemed age appropriate (IHO Ex. II-5).

[17] The contract further provides that Parent would not be responsible for any fees if “prior to the first day of school or the commencement of service,” the DOE implemented the IESP (Ex. C-3).

[18] Director believed that services during July and August would have been provided through the REDACTED (Tr. #2 89-90), and Parent confirmed that Student had received services through another agency prior to September 2022 (Tr. #2 100).

[19] Director believed that SLP had been licensed or certified at least 10 years ago (Tr. #2 91).

[20] The record reflects that District Representative asked, “[t]he social delays that [Student] has, you have testified they weren’t the need for these continued services, correct?,” and Director responded, “[y]es” (Tr. #2 83). The wording as reflected appears to be an error, because as described above, at least in part, Parent requested SEIT services to address social concerns.

[21] As explained later, had I used the modified Burlington/Carter standard, I would have reached the same outcome.

[22] The claims related to the request for ESY services fall under a FAPE standard, without consideration of equitable services. See e.g. Application of a Student with a Disability, Appeal No. 23-018.

[23] See Extended School Year Programs and Services: Questions and Answers, found at https://www. p12.nysed.gov/specialed/applications/ESY/esy-2017/documents/questions-and-answers-extended-school-year-2017.pdf> (last visited Dec. 26, 2023).

[24] Director did not know why the OT and SLT Progress Reports were from January 2023, but the SEIT Report was from May 2023, but thought it might have been because their most recent reports might not have been completed yet (Tr. #2 88-89).

[25] Director could not testify to progress made, only as to what was in the report (Tr. #2 90). Most of the goals correspond to New York State pre-K standards (Tr. #2 90). Overall, Parents and Providers reported that Student “grew tremendously in terms of [their] sense and responsibility, [their] role in the classroom . . [and their] ability to participate” (Tr. #2 90).

[26] See NYC DOE 2022-2023 School Year Calendar, found at <https://www.schools.nyc.gov/about-us/news//2022-2023-school-year-calendar> (last visited Dec. 26, 2023); see also Application of a Child with a Disability, Appeal No. 23-153, pg. 25; Application of a Child with a Disability, Appeal No. 23-033, FN 10.