NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
FINDINGS OF FACT AND DECISION
Case Number: 248602 Student’s Name: [REDACTED] School District: N.Y.C. Dept. of Ed. Impartial Hearing Officer: Roberta Wolf Date of Filing: 05/26/2023 Hearing Requested by: Parent Date of Hearing: 07/11/2023 Record Close Date: 08/02/2023 Date of Decision: 08/02/2023 Time Sensitive: Yes Case No. 248602
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 11, 2023:
(DOE): — DOE
[REDACTED], Representative — DOE
[REDACTED], Representative — Student
[REDACTED], — Parents
[REDACTED], Neuropsychologist — Student
BACKGROUND
On May 26, 2023, the Parent, by and through her attorney’s law firm, filed a due process complaint (DPC) against DOE on behalf of the Student, under Case No. 248602, pursuant to the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. § 1415(f)), Section 4404(1) of the New York State Education Law (Education Law), and Section 504 of the Rehabilitation
Act. 1
In the DPC, the Parent asserts that DOE failed to provide the Student with a free appropriate public education (FAPE) for the 2021-2022, 2022-2023, and 2023-2024 school years when its Committee on Special Education (CSE) recommended and later reduced services in the Student’s individualized education programs (IEPs) that were ineffective in the first instance and unimplemented in any event. Moreover, the CSE ignored the results of an independent neuropsychological evaluation diagnosing the Student with Major Depressive Disorder and urging a “critical” and immediate placement in a therapeutic residential school, even though
DOE: sanctioned the evaluation; delayed finalizing the Student’s IEP in anticipation of receipt of the evaluation; and intended to defer the Student’s case to its Central Based Support Team (CBST) for placement in an approved non-public therapeutic residential school, pending a corroborative recommendation by the evaluation.
The Parent now seeks: (1) a finding that DOE failed to provide the Student with a FAPE;
(2) a finding that the Student requires a 12-month, extended school year; (3) an order that the CSE reconvene and defer the Student’s case to the CBST for placement in an approved, non-public residential school; and (4) funding for an independent psychiatric evaluation to be completed by the provider of the Parent’s choosing, at a rate not to exceed $3,000.
Ex. A.
I was appointed impartial hearing officer (IHO) on May 31, 2023; conducted a prehearing conference on June 26, 2023; and adjudicated a due process hearing on July 11, 2023. The
Parent initially filed two DPCs; however, on June 21, 2023, I granted her unopposed request to consolidate them.[2] At the hearing, DOE waived its opening statement,[3] presented no witnesses, and did not defend against the Parent’s claims with respect to the 2022-2023 school year.[4] For the 2021-2022 school year, DOE relied on three documents (the August 5, 2021, IEP (2021
IEP), prior written notice, and school location letter). For the 2023-2024, DOE argued that because the Student was only deemed eligible for services for the 10-month school year (which did not begin until September 2023), the Parent’s claim was not ripe for adjudication.[5] The Parent’s case consisted of documentary and testimonial (live and affidavit form) evidence. All exhibits were admitted into the record without objection, a list of which is appended to this Order. DOE did not hold a resolution meeting or file a due process response.
FINDINGS OF FACT
The Student is now [REDACTED] years old and his eligibility for special education supports and services is not in dispute. Per the 2021 IEP, mandated when the Student was [REDACTED]
years old and preparing to enter the eighth grade, DOE classified him with “Other Health
Impairment”[6] and acknowledged his deficits in sensory processing speed, fine and gross motor skills, visual motor, and visual perceptual skills.[7] In creating the IEP, the CSE relied on psychoeducational and AT reports. 8 The Student’s reading comprehension, writing, and math skills ranked either “below grade level” or “well below grade level,” 9 with his writing and math two full grade levels behind. 10 The Student exhibited difficulty with self-regulation (resulting in many missed assignments) and needed help with organization and planning. 11 The CSE placed the Student in a general education classroom for the 10-month school year 12 with special education teacher support services (SETSS) (two math and three English/language arts (ELA)
periods each week), occupational therapy (OT),[13] and an assistive technology (AT) device to assist with his written work.[14] The 2021 IEP also mandated additional time for the Student to complete assessments.[15] On or about August 19, 2021, DOE provided the Parent with a school placement to implement the 2021 IEP, which the Parent accepted.[16] On that same date, DOE provided the Parent with prior written notice of the recommendations contained in the IEP (the Parent attended the CSE meeting 17), explaining that it considered mainstreaming the Student back to a general education classroom, but “[the Student] still benefits from the additional supports provided from his services.” [18]
From the beginning of the 2021 school year, the Student struggled with completing assignments and was barely passing his classes. 19 DOE never implemented the Student’s mandated SETSS, even after the Parent contacted the school’s principal and voiced her concerns about his incomplete assignments and increasing emotional distress. 20 Nor did the 9 Ex. 1-1. 10 Ex. C4. 11 Ex. 1-2.
12 Ex. 1-14.
17 Ex. 1-19.
Student receive extra time to complete classroom assessments. 21 The Student became visibly irritable, anxious, and depressed. 22 He would wake up, prepare to leave for school, then at the last minute, refuse to attend his first two classes. 23 He stopped seeing friends and retreated to his bedroom. 24 Already in psychotherapy for about a year, in December 2021, the Parent arranged for a psychiatric consultation after the Student told her he “[did] not want to feel this way anymore.” 25 The Student was diagnosed with Major Depressive Disorder, moderate, and placed on anti-depressant medication. 26 However, the Student’s self-isolation progressed and he began neglecting his hygiene and ignoring all outreach efforts, while also refusing to attend school or therapy. [27]
In January 2022, the Parent began contacting DOE for support and guidance in addressing the Student’s school-refusal behaviors, but the Student’s principal responded that he “seems happy,” reported no concerns, and was “already receiving a very high level of care” through his therapy. 28 The principal suggested that the Student’s behaviors were probably temporary and resulted from either his transition to a new school, or acclimation to an in-person learning environment post-COVID. 29 The Parent continued to press DOE for support and the following month (February 2022), it referred the Student to community-based organization assistance. 30
By March 2022, the Parent was so alarmed by the Student’s deteriorating behaviors that she admitted him to an impatient adolescent psychiatric facility. 31 The Student responded well to an
21 Ex. G. 22 Ex. HH. 23 Ex. K. 24 Ex. HH. 25 Ex. L. 26 Id.
in-patient environment and participated fully in all aspects of treatment. 32 However, once discharged, he again refused therapy and medication. 33 The Student’s outpatient therapist suggested that the Parent obtain a placement for him at a state-approved residential school. 34
Meanwhile, the Parent pursued therapy for the Student through an adolescent psychologist, but the provider did not accept insurance and the cost was prohibitively expensive. 35 During the intake process, the psychologist informed the Parent that the Student’s depressive symptoms had become so severe that he would require several sessions each week. 36 The psychologist agreed that the Parent should obtain a placement for the Student at a therapeutic residential school. 37
The Student returned to school on March 23, 2023, but his academic performance did not improve. 38 At about that same time, DOE offered the Student 180 hours of compensatory SETSS 39 to replace the unimplemented SETSS mandated by the Student’s IEP; however, it also notified the Parent that it did not provide SETSS at the Student’s school location. 40 On May 10, 2022, the Parent contacted DOE to initiate an IEP re-evaluation for a therapeutic residential placement. 41 Two weeks later, the Student was placed in detention after a series of academic and behavioral issues that DOE had not previously disclosed to the Parent. 42 In June 2022, DOE notified the Parent that the Student had failed all of his classes. 43
In August 2022, the Parent attended the Student’s IEP meeting and the CSE informed her
32 Id. 33 Id. 34 Id. 35 Id. 36 Id. 37 Id. 38 Ex. P. 39 Id. 40 Ex. D2. 41 Ex. HH. 42 Ex. Q.
Ex. HH.
that they would defer his case to the CBST for placement in a non-public school due to his need for a therapeutic setting. 44 After that meeting but before the CSE drafted the IEP, the Parent requested a neuropsychological evaluation and the CSE agreed to the request. 45 DOE provided the Parent with a voucher to obtain a neuropsychological evaluation from an approved provider who had contracted with DOE since 2017. 46 However, DOE then notified the Parent that the CSE would not finalize the IEP until it received the results of the evaluation. 47 Nevertheless, on or about September 23, 2022, before the neuropsychological evaluation was conducted let alone completed, the CSE convened and notified the Parent that “based on the data/reports provided by his previous teachers,” it would discontinue the Student’s mandated one-to-one SETSS and replace it with group SETSS. 48 The Parent attended that meeting and had requested copies of the data and reports, but at that time, the CSE told her it did not have any, nor would it request them from the Student’s teachers. 49
In January 2023, the neuropsychologist evaluated the Student for eight hours over two days. 50 He noted a decline in the Student’s basic reading skills (since a previous psychoeducational evaluation from 2021 51) and also deficits in the Student’s nonverbal/visual-spatial processing, visual construction and spatial reasoning, abstract pattern recognition, visual processing speed, visual-motor functioning, visual object naming, cognitive-linguistic flexibility, verbal contextualized memory, social cognition, and non-verbal/visual-spatial processing and processing speed. 52 The neuropsychologist concluded that all of these delays caused the Student to struggle to learn as effectively and as quickly as his peers, and the Student 44 Id. 45 Ex. GG, HH; Tr. 36 p. 22-25. 46 Tr. p. 36 lines 22-25. 47 Ex. HH. 48 Ex. U. 49 Id. 50 Tr. p. 27 lines 13-24. 51 Ex. V3.
Ex. V.
no longer felt confident in his ability to perform at expected levels. 53 Moreover, the Student’s clinical history and current evaluation results plainly pointed to a diagnosis of Nonverbal
(Visual-Spatial) Learning Disorder, which was “highly apparent” in previous DOE testing conducted when the Student was only [REDACTED] years old. 54 The Student also had a Specific Learning Disorder with impairment in Math and Attention-Deficit Hyperactivity Disorder, Inattentive Presentation. 55 The Student’s previously unidentified and unaddressed learning disabilities impacted his participation and engagement and cumulatively affected his current level of functioning. 56 As a result, the Student now also exhibited Unspecified Mood
(Affective) Disorder along with his previous diagnosis of Major Depressive Disorder. 57
The neuropsychologist recommended in part:
[A]n educational placement moving forward that can not only address his learning and academic struggles, but also provide significant social and emotional support . . . . Without a very high level of immediate support provided, he will continue to remain at the upper most range of risk of school dropout, ongoing failure, and worsening of daily functioning.
[H]e requires a significant level of therapeutic and academic support moving forward to ensure his ability to access the curriculum . . . . Given [his] refusal for therapy . . . and further decline in his emotional and behavioral status, it is critical that he is placed in an environment that has integrated and embedded therapeutic supports that can be provided daily . . . . [he] requires placement in a highly structured and supportive therapeutic residential school with a very low student-to-teacher ratio (i.e., 8:1:2). 58
The neuropsychologist also recommended a psychiatric evaluation to determine appropriate pharmacological treatments for the Student. 59
The neuropsychologist concluded that the Student’s academic and emotional decline was evident when comparing his performance over the past three-and-a-half years, from the eighth
53 Id. 54 Ex. V11. 55 Id. 56 Id. 57 Ex. V12. 58 Id.
Ex. V15.
grade to the present, 2021-2023. 60 Until the eighth grade, he participated in school and in his own self-care, and managed his responsibilities at home. 61 However, once in the eighth grade, his emotional functioning began to decline, his school attendance dropped, and an ongoing and documented regression followed steadily through 2023. 62 His test scores, all of his educational documents, and his current academic functioning established a need for “immediate and consistent year-round support” to counteract that regression and prevent gaps (i.e., math skills regressed from a sixth-grade to a fourth-grade level) from widening even further. 63 The Student’s depression “envelops his entire being at this point 64 . . . . He is absolutely in need of critical support 65 . . . . [H]is case is among the direst I have encountered.” 66
The CSE convened on May 9, 2023, to create the Student’s IEP for the 2023-2024 school year and consider the recommendations of the neuropsychological evaluation. 67 The neuropsychologist appeared for the entirety of the meeting and spoke at-length about his findings. 68 The Parent also attended the meeting. The evaluation was submitted to the CSE
“months before the IEP meeting took place,” 69 was also uploaded to DOE’s Special Education Student Information System, 70 and the CSE team received and reviewed the evaluation in advance of the meeting. 71 Nevertheless, the CSE did not follow the neuropsychologist’s recommendations and instead proposed that the Student be placed in an integrated co-teaching
60 Tr. p. 28 lines 1-25, p. 29 line 1. 61 Tr. p. 28 lines 13-21. 62 Tr. p. 28 lines 17-25, p. 29 line 1. 63 Tr. p. 34 lines 24-25, p. 35 lines 1-19. See fn.9. 64 Tr. p. 33 lines 12-13. 65 Tr. p. 33 lines 17-18. 66 Ex. GG. 67 Tr. p. 45 lines 23-25, p. 46 lines 1-18. 68 Tr. p. 40 lines 1-20. 69 Tr. p. 41 lines. 16-18. 70 Id.
Tr. p. 41 lines 13-21.
classroom with SETSS support. 72 The Parent has not received a copy of the IEP. 73
The Student refused to attend school for the last seven weeks of the 2022-2023 school year and failed all of his classes. 74 He continues to refuse all mental health treatment, rarely bathes, eats, or leaves the home, and wears all black clothing, including a hood and ski mask. 75
ANALYSIS
The IDEA and the New York Education Law require a school district to offer a FAPE to each child with an eligible disability residing in its district who requires special education programs or services. 76 A FAPE is offered to a student when (a) the IEP developed by its CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits; and (b) DOE complies with the procedural requirements set forth in the IDEA. 77 For a procedural violation, an impartial hearing officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student’s right to a FAPE,
(b) significantly impeded the parent’s 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. 78 In general, an IHO’s decision must be made on substantive grounds as to whether the student received a FAPE. 79
A school district offers a student a FAPE “by providing personalized instruction with
72 Ex. B6. 73 Id. 74 Ex. HH. 75 Id. 76
20 U.S.C. § 1412 (a)(1)(A); Education Law §§ 4402(2)(a), (b)(2). 77 Board of Education v. Rowley, 458 U.S. 176, 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005). 78
20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2); Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 (S.D.N.Y. 2007).
20 U.S.C. § 1415(f)(3)(E)(i).
sufficient support services to permit the child to benefit educationally from that instruction.” 80
An IEP must include a statement of the student’s present levels of academic achievement and functional performance; annual goals designed to meet the student’s needs resulting from his disability and that enable him to make progress in the general education curriculum; and provide appropriate special education and services. 81 “A reviewing court may fairly expect [DOE] 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.” 82
FAPE Denied to the Student for the 2022-2023 School Year
Here, DOE stated on the record that it would not present a case. DOE did not provide the IEP or any testimony to explain how the IEP was reasonably calculated to enable the Student to make progress appropriate in light of his circumstances. Therefore, I am constrained to find that DOE failed to offer the Student a FAPE for the 2022-2023 school year. Moreover, a review of the record herein (i.e., no evidence proffered by DOE) supports the conclusion that DOE failed to offer the Student an educational program reasonably calculated to provide a FAPE for the 2022- 2023 school year. 83
FAPE Denied to the Student for the 2021-2022 School Year
School districts bear the burden of proof, including the burden of persuasion and burden of 80 Rowley, 458 U.S. at 203. 81 See 34 C.F.R. § 300.320(a)(4); 8 NYCRR 200.4(d)(2)(v); see Application of the Dep’t of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep’t of Educ., Appeal No. 06- 029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9. 82 Endrew F. v. Douglas County School District, 137 S. Ct. at 1002 (2017). 83 I further find that the Parent’s Section 504 claim is subsumed by the above IDEA analysis. The Parent did not identify any distinct regulatory requirement under Section 504 that is not subsumed; therefore, I will not separately analyze 504 claims raised in the DPC, with respect to a denial of FAPE. See also Tr. p. 66 lines 12-25.
production, in IDEA due process hearings, except in limited cases not at issue here. 84 Although DOE may sustain its burden based on documentary evidence alone, that evidence must convey, on its face, a cogent and responsive explanation for its decision that shows how the IEP is reasonably calculated to enable the child to make progress appropriate in light of [his] circumstances.” 85
For this school year, DOE relied on the Student’s 2021 IEP, prior written notice, and school location letter. The IEP, created after reviewing an AT report (which gauged the Student’s writing and math skills behind by two full grade levels), mandated him with two and three weekly periods of math and ELA SETSS respectively, to offset those deficits. Not only did DOE fail to provide the SETSS, but it also assigned the Student to a school that could not implement SETSS. I do not find that DOE’s proffered documents, on their face, provide a cogent and responsive explanation for DOE’s decision that shows how the IEP is reasonably calculated to enable the Student to make progress appropriate in light of his circumstances. Consequently, I find that DOE failed to offer the Student an educational program reasonably calculated to provide a FAPE for the 2022-2023
school year.
FAPE Denied to the Student for the 2023-2024 School Year
Parent’s claim here relies on a finding that DOE should have provided the Student with a 12- month program, for which the Student would have begun school in July 2023 and received a 12- month IEP in advance of the Parent’s filing of the DPC.86 A student must be considered for a twelve month, or extended school year (ESY) program to prevent substantial regression if he is a student who, among other things, is receiving other special education services and who, because of his disabilities, exhibits the need for an ESY special service and/or program provided in a structured learning environment of up to 12-months’ duration in order to prevent substantial regression. ESY
84 See e.g., Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 115 (2d Cir. 2007). 85 Endrew F. v. Douglas County School District, 137 S. Ct. at 1002 (2017).
See generally 8 NYCRR 200.4(d)-(f); 8 NYCRR 200.5(i).
services are therefore required only to the extent necessary “to prevent substantial regression.” 87
“Substantial regression” is defined as the “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.” 88 Although not specifically defined, courts and relevant guidance consider a period of eight weeks or more to be an “inordinate period of review.” 89 The party seeking ESY services bears the burden of production. 90
Here, the Parent has provided ample evidence of the Student’s substantial regression. The
Student began the 2021-2022 school year two grade levels behind in math and writing. By the 2022- 2023 school year, he tested four grade levels behind in math. In January 2022, the Parent reached out to the Student’s principal for assistance in addressing his refusal to attend school and she responded that he had enough support through private therapy. However, by June 2022, the school confirmed that the Student had failed all of his classes. DOE never implemented the Student’s mandated SETSS and the school informed the Parent near the end of the school year (April 2023) that it in fact did not provide SETSS at that location. The Parent repeatedly notified DOE of the Student’s medical diagnoses as the reason for his refusal to attend school, including his committal to a psychiatric facility in March 2022. DOE itself notified the Parent of its intent to refer the Student’s case to the CBST for placement in a non-public school, thereby acknowledging the Student’s need for a more restrictive therapeutic setting to meet his educational needs. DOE sanctioned a neuropsychological evaluation, completed by one of its own approved providers, that urged “immediate support” in the form of an educational placement in a therapeutic residential school to prevent “further decline” and 87 T.M. v. Cornwall Cent. Sch. Dist., 752 F. 3d 145, 152 (2d Cir. 2014) (citing 8 N.Y.C.R.R. § 200.6(k)(1)(v) and 34 C.F.R. § 300.106(a)(1)). 88
8 N.Y.C.R.R. 200.1(aaa). 89 See New York State’s 2022 guidance on ESY programs, available at Extended School Year Questions and Answers 2022 (nysed.gov); D.D-S. v. Southold Union Free Sch. Dist., No. 09-CV-5026, 2011 WL 3919040 (E.D.N.Y. Sept. 2, 2011).
Id.
“ensure his ability to access the curriculum.” The Student stopped bathing and began exhibiting problem behaviors which resulted in his detention from class.
DOE did not dispute any of the aforementioned evidence, nor did it provide any evidence or argument to show that the Student had not in fact substantially regressed. Nor did DOE provide or defend the IEP on substantive grounds. On this record, I find that the Parent produced sufficient and credible evidence to show that, as a result of the Student’s disabilities, he exhibits the need for an ESY special service and/or program provided in a structured learning environment of 12-months’ duration in order to prevent substantial regression. Because DOE failed to provide that 12-month program, DOE has failed to offer the Student an educational program reasonably calculated to provide a FAPE for the 2023-2024 school year.
Parent’s Request for CSE Reconvene and CBST Deferral Granted
The Parent seeks an Order that the CSE reconvene and defer the Student’s case to the CBST for placement in an approved, non-public residential school. “[W]hen a school district denies a child a FAPE, the courts have ‘broad discretion’ to fashion an appropriate remedy.” 91 In actions brought under the IDEA alleging a denial of FAPE, “the court shall 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.” 92 A court may direct a school district to reconvene and revise a student’s IEP for the purpose of recommending an appropriate program and placement. 93
Additionally, prospective placement is an appropriate remedy in rare cases such as this one when a school year has not yet ended, there is a clear consensus in the record as to the Student’s
91 Boose v. District of Columbia, 786 F. 3d 1054, 1056 (D.C. Cir. 2015), citing School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993), 510 U.S. at 15-16). 92 DOE v. East Lyme Bd. of Educ., 790 F.3d 440, 454 (2nd Cir. 2015). 93 See Adams v. Dist. of Columbia, 285 F. Supp. 3d 381, (D.D.C. 2018) (noting with approval the hearing officer’s finding “that the directives of IDEA would be best effectuated by ordering an IEP review and revision, rather than prospective placement in a private school”); G.G. ex rel. Gersten V. Dist. of Columbia, 924 F. Supp. 2d 273 (D.D.C. 2013), (“‘[T]he consideration of prospective placement is frustrated without’ an IEP and an accompanying determined placement.”)
need for the type of program requested, and DOE has repeated failed to make necessary changes to the Student’s IEP, despite its knowledge of his needs. 94 DOE did not implement the Student’s 2021 IEP, did not defend the 2022 IEP, and did not finalize the 2023 IEP. The Parent has notified DOE repeatedly about the Student’s mental health diagnoses which, in combination with his learning disabilities, prevent his ability to access his education. DOE sanctioned an evaluation by one of its own neuropsychologists after telling the Parent that it intended to refer the Student’s case to the CBST for placement in a non-public residential school if the neuropsychologist corroborated the same in his findings. The neuropsychologist submitted a comprehensive report urging an immediate placement in a therapeutic residential school and concluding that the Student’s case “is among the direst I have encountered.”
Inexplicably, DOE ignored the neuropsychologist’s recommendations, backtracked on its previous commitment to defer to the CBST, and instead reduced the Student’s services even further. The Student has failed all of his classes and now exhibits the “worsening of daily functioning” that the neuropsychologist warned of in his report. I will therefore order the DOE to convene to develop an appropriate IEP that will recommend placement at an approved non-public school and defer the Student’s case to the CBST to recommend an appropriate non-public school.
Parent’s Request for a Psychiatric Evaluation Granted
The Parent last requests a psychiatric evaluation as recommended by the neuropsychologist to determine the appropriate pharmacological treatment for the Student. DOE did not contest the Parent’s request and I grant that as well.
94 Application of a Child with a Disability, Appeal No. 23-059 (“[T]he district did not rebut or contest the evidence supporting the student’s need for [the requested program] and, based on the evidence in the hearing record, there is a clear ‘consensus’ among those who evaluated the student regarding his needs that should be followed by the CSE (see A.M. v. New York City Dep’t of Educ., 845 F.3d 523, 543–46 (2d Cir. 2017) (referencing and following the proposition that when the reports and evaluative materials present at the CSE meeting yield a clear consensus, an IEP formulated for the child that fails to provide services consistent with that consensus is not reasonably calculated to enable the child to receive educational benefits.”))
ORDER
Based upon the above Findings of Fact, it is hereby:
1. ORDERED that within fourteen (14) days of the date of this Order, DOE shall convene a meeting of the CSE to develop an appropriate IEP and:
a. review and consider the recommendations made in the January 2023 neuropsychological evaluation and provide the Student with the recommendations contained in that evaluation; and
b. defer the Student’s case to the CBST to recommend an appropriate non-public residential school as described in the neuropsychological evaluation.
2. FURTHER ORDERED that DOE shall fund a psychiatric evaluation with a licensed provider of the Parent’s choosing at a rate not to exceed $3,000 and shall issue payment directly to the provider within 30 days of receipt of the invoice. SO ORDERED. DATED: August 2, 2023
/s/ Roberta Wolf, Esq.
Impartial Hearing Officer
Roberta Wolf
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.
An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.
DISTRICT EVIDENCE
Exhibit Title Date Pages
1 IEP 07/26/2021 19
2 Prior Written Notice 08/19/2021 4 3 School Location Letter 08/19/2021 2
PARENT EVIDENCE
Exhibit Title Date Pages A Hearing Request 5/26/23 9 B Hearing Request 6/15/23 9 C AT Evaluation 5/23/21 11 D Correspondence with DOE: Correspondence 9/2/21-4/12/22 4 between parent and [REDACTED] Administrator for Special Education E Email to [REDACTED]: Assistive Technology 9/7/21 1 Request and Orientation F Emails to [REDACTED]: IEP 9/21/21-9/22-21 1 G Email to DOE: IEP Compliance 9/30/21 2 H Correspondence with [REDACTED]: Concerns 10/20/21 2
Regarding Math Grades I Email to DOE: Concerns regarding Violation of 12/9/21 2
Anti-Discrimination Policy J Correspondence with [REDACTED]: Concerns 12/17/21 2 regarding SETSS Class K Correspondence with [REDACTED]: Request for 1/18/22-2/18/22 7 School Refusal Support L Treatment Summary 3/11/22 2 M Email to [REDACTED]: Student’s Return to 3/22/22 2 School N Letter from [REDACTED]: Admittance and 3/22/22 1
Discharge Dates O Correspondence with [REDACTED]: 2
Appointment with Student and Residential School 5/9/22-5/10/22
Inquiry P Correspondence with Administrator of Special 4
Education: Tutoring Referrals and School 5/10/22-5/18/22
Placement Inquiry Q Correspondence with [REDACTED]: Concerns 4 regarding Student’s Behavior and Removal from 5/25/22-5/26/22
Class R [REDACTED] 2021-2022 Final Report Card 6/24/22 2
S Correspondence with CSE: Request for 5
Neuropsychological Evaluation and Additional 7/26/22-8/18/22
Testing Inquiry T Email to [REDACTED]: Request for 9/1/22 1
Neuropsychological Evaluation U Correspondence with [REDACTED]: Concerns 3 about IEP Recommendations regarding SETSS 9/21/22-9/23/22 V Neuropsychological and Educational Evaluation 1/25/23 21 W [REDACTED] 2022-2023 Report Card 2/9/23 1 X Correspondence with [REDACTED]: Request for
Parent-Teacher Meeting and Student Attendance 3/3/23-3/6/23 2 Y Email from [REDACTED]: School Psychologist 3/28/23 1
Assignment Inquiry Z [REDACTED] Promotion in Doubt Letter 4/4/23 1 AA Correspondence with [REDACTED]: School Psychologist Assignment for IEP Meeting 4/27/23-5/2/23 7 BB Letter of Support from Primary Care Provider 5/3/23 1 CC [REDACTED] 2022-2023 Report Card 5/21/23 1 DD Psychiatric Invoice with Diagnoses 5/31/23 1 EE [REDACTED] Retention Decision Letter 6/26/23 1 FF [REDACTED] 2022-2023 Final Report Card 6/27/23 1 GG Affidavit of Testimony: [REDACTED] 7/6/23 7 HH Affidavit of Testimony: [REDACTED] 7/6/23 7
Footnotes
[2] Case number 249024, filed on June 15, 2023, contained the Parent’s claims for the 2023-2024 school year.
[3] Tr. p. 13 lines 21-25.
[4] Tr. p. 15 lines 4-5.
[5] Tr. p. 15 lines 6-15.
[6] Ex. 1-1.
[7] Ex. 1-2. Ex. 2-19.
[13] DOE had mandated OT for the Student for the previous four years, but never provided it. Ex. 3-19.
[14] Ex. 1-12, 1-13, 1-2.
[15] Ex. 1-14.
[16] Ex. 3, HH.
[18] Ex. 1-19, 2-4. 19 Ex. HH. Ex. D, J, HH.
[27] Ex. L, HH. 28 Ex. K. 29 Id. 30 Id. Ex. HH.