New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 248787 Student’s Name: [REDACTED] (“Student”) School District: NYC DOE District [REDACTED] Impartial Hearing Officer: Ashley Grant Date of Filing: 3/27/2023 Hearing Requested by: [REDACTED] (“Parents”) Dates of Hearing: 7/11/2023, 8/8/2023, 8/25/2023 Record Close Date: 9/11/2023 Date of Decision: 9/15/2023 Time Sensitive: Y Case No. 248787

NAMES AND TITLES OF PERSONS WHO APPEARED 7/11/2023

[REDACTED] (“Mother”), — Parents

[REDACTED] (“Father”), — Parents

[REDACTED] (“DOE Counsel”), Agency Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED 8/8/2023

Mother — Parents

Father — Parents

Dr. [REDACTED] (“Neuropsychologist”), Neuropsychologist — Parents

DOE Counsel — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED 8/16/2023

Mother — Parents

Father — Parents

Dr. [REDACTED] (“Coach”), Ed.D, Teacher, Executive Functioning Coach and Consultant — Parents

[REDACTED] (“DOE Counsel 2”), Agency Attorney — DOE

INTRODUCTION

This matter concerns the Student, a student classified as a student with a disability under the Individuals with Disabilities Education Act (“IDEA”).

PROCEDURAL HISTORY AND BACKGROUND

This matter comes before me by way of a due process complaint (“DPC”) filed pro se on or about 6/6/2023 by [REDACTED] (“Mother”) and [REDACTED] (“Father”) (collectively “Parents”) alleging that the New York City Department of Education (“DOE”) denied [REDACTED] (“Student”) a free appropriate public education (“FAPE”) and denied Parents meaningful participation in the planning of Student’s education by, inter alia, rejecting Parents’ requests for the following accommodations when creating Student’s April 27, 2023 IEP (“2023 IEP”):

1) Additional time for in-class and homework assignments (without penalty if submitted after the due date);

2) All of Student’s assignments delivered via a single online platform instead of through multiple school-based websites and in-person verbal instruction

3) Student will receive “real-time notification” through the single online platform if anything is missing; and

4) Allow Student to submit all homework assignments and projects via email or Google

Classroom. See Ex. F.

I was appointed to this matter on 6/8/2023 and held a pre-hearing conference (“PHC”) with both parties on 7/11/2023. During the PHC, DOE counsel informed me that the DOE had not scheduled a resolution meeting. Tr. 2. Both parties also represented that they were interested in resolving the issues raised in Parents’ DPC without the need for a hearing. Tr. 3-4. I issued an interim order on 7/11/2023 directing the DOE to convene a resolution meeting no later than 7/25/2023. See Ex. I-1 to I-3. The DOE did not comply with this order. See Ex. I-5, Tr. 40-41.

The merits hearing began on 8/8/2023. I reminded Parents of their right to be advised by an attorney. Tr. 41-42. Mother informed me that she is an attorney who does not practice special education law and that the Parents wished to proceed without representation. Tr. 42. The DOE declined to introduce any evidence or to make an opening statement. Tr. 42-44. Mother made an opening statement on behalf of the Parents. Tr. 44-46. After Parents’ opening statement, I asked clarifying questions regarding the relief sought and provided the DOE with an opportunity to respond. Tr. 46-54. DOE Counsel noted that the DOE has concerns with the relief requested by Parents but again declined to introduce any evidence and rested its case. Tr. 54-61.

Parents then proposed Exhibits A through W. Tr. 62-68. I admitted Exhibits A, K, L, and M over the DOE’s relevance objection. Tr. 79. I admitted all the Parents’ remaining exhibits without objection. Id. Father testified on behalf of the Parents and was briefly cross-examined. Tr. 88-176. [REDACTED] (“Neuropsychologist”) began testifying on behalf of the Parents on 8/8/2023 but did not complete his testimony. Tr. 185-196. Neuropsychologist indicated that he was not available again until 8/25/2023. Tr. 196. I granted the parties’ joint request for an extension of the timeline to allow Neuropsychologist to finish testifying. Tr. 197, IHO Ex. IV.

The hearing continued on 8/16/2023. Parents presented the direct testimony of [REDACTED] (“Coach”), Student’s executive functioning coach, whom the DOE crossexamined. Tr. 208-290.

The hearing continued on 8/25/2023. Parents presented the remaining direct testimony of Neuropsychologist and the DOE cross examined him. Tr. 304-320. For completeness of the record, I then asked Father additional questions under oath. Tr. 321-325. Both parties made closing statements. Tr. 327-346.

A list of admitted exhibits is appended to this decision.

JURISDICTION

The due process hearing was held, and this decision is rendered, pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ Law Art 89 § 4404 et seq., and its implementing regulations, 8 NYCRR Part 200. ^[1]

FINDINGS OF FACT

After considering all the evidence, as well as the closing arguments of both parties, my findings of fact are as follows:

Background

Student has attended [REDACTED] (“High School”) since the 2021-22 school year. Tr. 92-93. High School is a small, specialized DOE high school. Tr. 94. Students at High School must take the specialized high school admissions test (“SHSAT”) to gain admission. Tr. 94. When Student began attending High School, Parents provided the school with a copy of a 2018-

19 neuropsychological evaluation diagnosing Student with ADHD, anxiety and a specific learning disorder in written expression and recommending a variety of accommodations. Ex. A, Tr. 94-95, 167, 189. Student had a 504 plan during the 2021-22 school year that provided time and a half for testing, but no other accommodations. Tr. 96. Student worked with therapists outside of school and took medication to manage anxiety. Tr. 98.

During the 2022-23 school year, Student was in tenth grade at High School. Tr. 92. For most of the 2022-23 school year, the Student’s prior 504 plan remained in place. Tr. 149-150. Neither party submitted the 504 plan as evidence. Student continued to work with a private therapist and tutor and, from February through June 2023, took a medication to treat ADHD. Tr.

137-138. Father testified that academically, Student did “not well at all” during the 2022-23 school year. Tr. 99. Student struggled to turn in classwork and homework on time. Tr. 99-100. Parents hired a therapist and a tutor to work with Student outside of school, but Student still struggled to plan and track his work Tr. 100-101. Emails in evidence that appear to be dated almost every Friday during the 2022-23 school year indicate that Student had many missing assignments across subjects. Ex. J. Although it is not clear from the documents who sent these emails and no witness testified about this exhibit, the emails corroborate consistent testimony from each of the witnesses that Student had many missing assignments throughout the school year.

In November 2022 through January 2023, Student emailed his teachers and guidance counselor submitting and requesting credit for late assignments. Tr. 103-10, Ex. R, W. In two emails dated 1/25/2022, Student referenced a neuropsychological evaluation, noting his ADHD diagnosis and recommendation that he receive more time to submit assignments, and stated “we are updating on working on (sic) my neuropsych and will have an IEP with accommodations next semester.” Ex. R-9, R-10. Some teachers did not respond to these emails. Tr. 114. Other teachers responded with information about their classroom policies or grading procedures. For example, Student’s chemistry teacher responded that “late homework gets 50% credit. However, I am not accepting homework from the first marking period. Homework is worth 10% of the marking period grade” and advising Student that her Wednesday office hours to make up assignments. Tr. 112, Ex. W-2. Student’s AP World History teacher responded that she had graded and returned Student’s late work and had given Student “12/25 points.” Ex. W-1, V-1. The AP World History teacher also said “I do not have the time and energy to create and then grade an alternative assessment for you, and actually thought I was being very generous not to give you a 0/25 points.” Id. Student’s geometry teacher responded to Student’s submission of late assignments saying she “will give most of the points for these” but that she would not “adjust this semester’s grades anymore.” Ex.W-3. Student’s geometry teacher also indicated that the following semester she would “be taking off more points for late work –unless there is a very clear reason so lets (sic) make sure you keep up as we go.” Ex. W-3.

Student, with the help of Father, attempted to organize himself using a paper planner. Ex. K, L, M, N, O, P, Q. Tr. 119-121, 123-128. However, he continued to struggle to submit assignments. Student frequently completed assignments but then failed to submit the assignments or uploaded the wrong attachments when trying to submit the assignments to High School’s online platform. Tr.128-129. Father worked closely with Student to try to track missing and late assignments through two online platforms used by High School: Jupiter and Google Classroom. Tr. 128-137. However, neither platform provided a complete or accurate listing of which assignments had been submitted correctly and which were still outstanding. Tr. 137.

2023 Neuropsychological Evaluation

In January and February 2023, Student underwent an updated neuropsychological evaluation with Neuropsychologist, who had also conducted the prior evaluation. Ex. B. Neuropsychologist’s evaluation revealed that Student’s cognitive skills are at or above those of same-age peers but that due to Student’s ADHD, he struggles with organizing and planning, has “significant trouble with timing” and, as a result, is “prone to missing assignments, losing things, and losing his focus on sustained attention tasks.” Tr. 189-190. Student also struggles with initiation, working memory and organization. Id. Due to his anxiety, Student is a very harsh judge of himself and gets overwhelmed or anxious when tasks are not easy for him. Tr. 191.

In his report, Neuropsychologist recommended special education teacher support services (“SETSS”) to address Student’s lack of study skills and self-advocacy skills. Ex. B-7. At hearing, Neuropsychologist explained credibly that although SETSS alone would not be sufficient to address Student’s organizational challenges, Student “requires direct instruction” to learn organizational skills (Tr. 319). The 2023 neuropsychological evaluation also recommended testing accommodations and assistive technology including a “recordable pen or tablet or tablet/computer app for simultaneous recording of the class while taking notes.” Ex. B-7. The report also recommended classroom accommodations, including that “all of [Student’s] assignments be delivered via a single online platform” and that he be provided “additional time for in-class and homework assignments (without penalty if submitted after the due date).” Ex. B7.

2023 IEP

Parents shared the 2023 neuropsychological evaluation with High School and requested an IEP for Student. Tr. 150, 167-168. See also Ex. E-1. In March 2023, Parents met with [REDACTED] (“Social Worker”) at High School to review the IEP process. Tr. 150-151.

On 4/27/2023, the DOE created an IEP for Student. Ex. E. Both Parents attended as did [REDACTED] (“Principal”); [REDACTED], the School Psychologist; and Social Worker. Ex. E-18, Tr. 147. The IEP’s attendance page indicates that Student’s principal, [REDACTED] (“Principal”) served as district representative and as the general education teacher. Ex. E-18.

There is no evidence that the DOE conducted any of its own assessments in advance of the IEP. The only evaluation results reported in the IEP are those from Neuropsychologist’s 2023 evaluation. Ex. E-1 to E-4. At the meeting, Parents requested that Student be provided with accommodations recommended by the 2023 neuropsychological evaluation. Tr. 155-166. The IEP team found Student eligible for special education services, classified Student as a student with an “other health impairment” and developed an IEP that mandates individual SETSS three periods per week “to help with difficulty in the domain of Executive Functioning”; individual counseling once a week for 40 minutes “to address anxiety as well as to learn self-advocacy skills”; a laptop for use on exams and essays; and testing accommodations including time and a half on tests and assessments. Ex. E-6, E-11, E-13. Parents agreed with these recommendations. Ex. F-1. The school-based team refused other accommodations requested by Parents, including their request that Student be allowed to submit assignments without penalty after the due date; that Student receive real-time notification through the Jupiter platform if anything is missing; that Student be allowed to submit all assignments via either email or a single platform; and that Student be allowed to use an audio-recording pen for note-taking. Tr. 155-166.

Following the IEP meeting, the DOE issued a Prior Written Notice (“PWN”) and a Consent for Initial Services. Ex. D, H. The PWN indicates that it was printed on 5/1/2023. Ex. D The IEP and consent form appear to have been printed on 5/5/2023. It is not clear from the record when these documents were provided to the Parents. Ex. E-1, D, H. On 6/12/2023, Father signed the consent form and wrote, “please provide the services and accommodations specified in (Student)’s IEP. However, we do not feel these are sufficient to meet his needs and have filed a request for an impartial hearing.” Ex. H, Tr. 322.

I take judicial notice that 6/27/2023 was the last day of school for students during the 2022-23 10-month school year. See IHO Ex. VI. The SETSS and counseling services mandated by Student’s IEP were not implemented during the 2023-24 school year. Tr. 322-324. The record is silent as to why Student did not receive the IEP-mandated counseling. Tr. 324. Father explained his understanding of why the IEP-mandated SETSS was not provided to Student. He explained that High School provided Parents with a list of DOE-contracted SETSS providers so that Student could get SETSS instruction outside of the school day. Tr. 152, 323-324. Parents did not follow up with the SETSS providers on the list because Student was already working with an executive functioning coach and Parent’s believed that “much of that would have been covered by what the executive functioning coach was doing” and Parents did not want SETSS and executive functioning coaching to interfere with one another. Tr. 323.

Executive Functioning Coach

In May 2023, Student began working with Coach, a teacher and executive functioning coach in North Carolina hired by Parents. Tr. 140, 208-209, 273. Coach has extensive experience working with students with ADHD. Ex. S. Student and Coach worked together virtually over Zoom for approximately one hour each week. Tr. 213, 219.

Coach testified that Student has strong problem-solving skills, but struggles to “focus() on one task at a time and . . . make sense out of a large amount of information and [to] organize that into categories like subjects or due dates.” Tr. 224-225. She also explained that, due to his ADHD, Student struggles to estimate how long it will take him to complete an assignment. Tr. 225.

The priorities during Student’s sessions with Coach were to get Student caught up on schoolwork, to figure out which work was missing for each course and to learn how to use Student’s planner. Tr. 214. Coach reviewed Google Classroom and Jupiter, High School’s two online platforms, in an attempt to understand what assignments Student was missing, but found the information on these platforms to be confusing, incomplete, and inconsistent with one another. Tr. 214-217. Ex. U-10 to U-15. As a result, Coach and Student were unsure about which of Student’s assignments were actually missing. Tr. 215. On 6/5/2023 and 6/7/2023, Coach emailed Student’s teachers requesting information about missing assignments and asking for clarification about how missing assignments are listed in the two online platforms. Ex. T, Tr. 216-217. Coach identified 20 of Student’s missing assignments she assumed were “highest priority” based on a review of the two online platforms. Ex. Id. Student’s Geometry teacher responded on 6/7/2023 saying Student “has over a 92 in Geometry and seems to be mastering the material well,” noting that Student had “one of the highest scores” on a quiz a couple weeks prior, and that he was only missing two worksheets. Ex. T-4, Tr. 217-218. Other teachers did not respond. Tr. 219. According to Coach, Student completed the missing Geometry work but “seemed very discouraged” by the lack of response from other teachers. Tr. 218-220.

Coach also worked with Student “to make sure that the tools he was using were not overwhelming to him.” Tr. 221. Coach introduced Student to an app that allowed him to track “at-home” responsibilities (like taking medication, feeding the cat, and wearing his retainer) and worked with Student to use his school planner only for his school responsibilities. Tr. 221. With Coach, Student also began using a color-coded system in his planner to track school assignments. Tr. 221-222. Coach testified that Student made progress by the end of the school year with these private services. Tr. 222.

Coach testified that she did not believe it was appropriate to expect someone with Student’s profile to “deal with multiple platforms with different info[rmation]” if the platforms are not consistent. Tr. 225. Coach also testified that Student lacks the organizational skills to know how to ask teachers for help organizing his assignments. Tr. 228. Coach testified that “some examples of reasonable accommodations” for Student would include communicating with Student about missing assignments, helping student figure out which assignments are missing, and following up with Student about missing assignments if he did not make progress in submitting those assignments. Tr. 228-229. Coach testified credibly that, if changes to the online platforms were not possible, teachers “need to find another way to provide that information consistently” by posting assignments in the classroom or by checking in individually with Student. Tr. 278. She testified that another option would be weekly check-ins with Student, which could include getting a signature on his agenda from each teacher “that this is what needs to be written in [the agenda] and that, you know, these are the assignments that [Student] ha[s]n’t done yet, and these are the assignments [Student] need[s] to do, and the teacher just needs to check that and then verify that the information is correct.” Tr. 279.

Student’s Grades

As the DOE submitted no evidence and presented no witnesses, the record contains very little evidence regarding High School’s grading policy. It appears that Student had eight teachers first semester and nine teachers second semester. Ex V. Emails from Student’s teachers suggest that grading policies vary from class to class, with credit for late work ranging from no credit, to 50% credit, to “most of the points.” Ex. V-1, W-1 to W-3. Neuropsychologist testified that if Student’s grades reflected the impact of late work, that would not be appropriate because “then we’re basically penalizing him for his ADHD.” Tr. 192. However, it is not clear from the record how much of Student’s final grades were impacted by his late or missing assignments.

Student’s report card indicates that grades from 65-100 are a “pass” and that grades from 10-64 are a “fail.” Ex. V-1, V-2. Student passed all of his classes during the 2023-24 school year. Ex. V. Student’s grades during the first semester of the school year ranged from 75 in Music to 92 in Honors Geometry and Phys Ed. Ex. V-1. During the second semester, his grades ranged significantly from 75 to 95. Student’s highest grades were in Honors Geometry, where he scored a 92 first semester and 95 second semester. Ex. V. Student’s lowest grades were in Honors Chemistry, Music and AP World History. Ex. V. Student earned a 68 and 78 in first and second semester of Honors Chemistry, passing, in the words of Neuropsychologist, “by the skin of his teeth.” Ex. V, Tr. 316. Student also earned 75s in Music and a 76 and 75 in AP World History, which Neuropsychologist testified “in no way reflects his language or his memory or his cognitive ability.” Id.

Coach testified generally that she was familiar with Student’s grades at High School, that she was aware that Student “got percentages,” and was generally familiar with grading scales that correlate percentages to letter grades. Tr. 275-276. Coach testified to her belief that Student “is an A, B student” and that “he is performing at an A, B student performance level when he is able to complete and submit the work.” Tr. 245. Coach testified that she based this opinion on her experience as a teacher who has taught English, Spanish and geography. Tr. 246. However, as Coach explained, grades in school often reflect both a student’s ability to meet “content-based standards” and “the student’s behavioral capabilities, like being able to submit things and turn them in on time, for which there are repercussions in the majority of classrooms in America.” Tr.

248. I give this testimony little weight as Coach is testifying generally to grading policies she is familiar with across the U.S., not to High School’s specific grading policies or rubrics.

Coach testified that Student is “intellectually capable” of completing school assignments. Tr. 229. I credit this as accurate because she also testified that, when she observed Student completing assignments and said that “the majority of the work he did was accurate . . . without assistance” and when she worked with him on assignments “he did not need hand-holding and too much prompting. He was able to read the directions and walk through it, understand it, and then perform with correct answers.” Tr. 276. She reported that “there were only a couple of writing assignments that he didn’t quite complete all of the details that were asked of him . . . which is very common in an ADHD, executive-functioning-concerned student.” Tr. 276.

LEGAL FRAMEWORK

The IDEA establishes a “substantive right to a ‘free appropriate public education’” for all eligible children with disabilities by means of a uniquely tailored “individualized education program” or IEP. 20 U. S. C. §§1401(9)(D), 1412(a)(1), Endrew F. v. Douglas Co. School Dist, 137 S. Ct. 988, 993 (2017) (quoting Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty. v. Rowley, 458 U.S. 176 (1982)).

Under the IDEA, “the adequacy of a given IEP turns on the unique circumstances of the child for whim it was created.” Endrew F. at 404. A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” Rowley, 458 U.S. at 203. School districts are not required to “maximize” the potential of students with disabilities but must provide “an IEP that is ‘likely to produce progress, not regression,’ and ... affords the student with an opportunity greater than mere ‘trivial advancement.’” Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 195 (2d Cir. 2005) (quoting Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998)); see also Rowley, 458 U.S. at 199; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 379 (2d Cir. 2003). The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit.” Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see Rowley, 458 U.S. at 192.

In general, an impartial hearing officer’s decision must be made on substantive grounds based on a determination of whether the student received a FAPE. 20 U.S.C. § 1415(f)(3)(E)(i). A FAPE is offered to a student when: (a) the DOE complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits. Rowley, 458 U.S. at 206-07; Cerra, 427 F.3d at 192. If procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits. 20 U.S.C. § 1415(f)(3)(E)(ii); 34 CFR 300.513(a)(2); 8 NYCRR 200.5(j)(4)(ii); Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 (2007); R.E. v. New York City Dep't of Educ., 694 F.3d 167, 190 (2d Cir. 2012); M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 (2d Cir. 2012).

When school districts do not provide a FAPE, IHOs have broad authority regarding relief, “restrained only by the Supreme Court’s directive that ‘the relief is to be appropriate’ in light of the purpose of the Act.” L.O. v. New York City Dep’t of Educ., 822 F.3d 95, 125 (2d Cir.

2016) (citing Burlington, 471 U.S. at 369). Although the IDEA “does not address the specific remedies an impartial hearing officer may order upon a finding that a child has been denied FAPE, [the United States Department of Education’s Office of Special Education Program’s] position is that, based upon the facts and circumstances of each individual case, an impartial hearing officer has the authority to grant any relief he/she deems necessary…to ensure that a child receives the FAPE to which he/she is entitled.” Letter to Kohn, 17 IDELR 522, OSEP 1991.

FAPE

The Parents argue that the DOE denied Student a FAPE and denied them meaningful participation by rejecting Parents’ requests for accommodations, specifically:

1) Additional time for in-class and homework assignments (without penalty if submitted after the due date);

2) All of Student’s assignments must be delivered via a single online platform instead of through multiple school-based websites and in-person verbal instruction and real-time notification through that platform if anything is missing; and

3) Allow Student to submit all homework assignments and projects via email or Google

Classroom. See Ex. F.

In IDEA impartial due process proceedings conducted in New York, the burden is on the DOE to establish that it provided a student with a FAPE. M.W. ex rel. S.W. v. New York City Dept. of Educ., 725 F.3d 131, 135 (2d Cir. 2013); A.M. ex rel. E.H. v. New York City Dept. of Educ., 845 F.3d 523, 535 (2d Cir. 2017). In the instant case, the DOE has not met its burden.

In its due process response (“DPR”), the DOE admitted that on 4/13/2023, an IEP “team classified the student as a child with Other Health Impairment,” one of the IDEA’s thirteen eligibility classifications. Ex. G-1, 20 U.S.C. §§1401(3)(A). The DOE did not put on a case, present any witness testimony, or place any documents in evidence at the hearing regarding the DOE’s provision of a FAPE and argued in closing that “the IDEA does not apply in this case; nor is the standard whether the DOE provided a (FAPE) the standard” and that the Student was only entitled to “equitable services”.^[2] Tr. 338-339, 346. I reject this argument.

In light of the DOE’s admission in its DPR that the DOE’s IEP team classified Student as a student with a disability and in light of multiple DOE documents submitted by the Parent showing that the DOE “determined that [Student] is eligible for special education services and an [IEP] was developed,” I find that Student is indeed eligible for special education services under the IDEA and is therefore entitled to a FAPE. 20 U. S. C. §§1401(9)(D), 1412(a)(1), Endrew F. v. Douglas Co. School Dist, 137 S. Ct. 988, 993 (2017).

I further fund that, although the DOE’s IEP team may have had legitimate reasons for denying the Parents’ requested accommodations when creating the 2023 IEP, the DOE declined to offer evidence of any such reasons at hearing. Having failed to present any witnesses or documentary evidence in this case, the DOE failed to “offer a cogent and responsive explanation for their decisions” in creating that IEP, and it is “through the IEP that “(t)he ‘free appropriate public education’ required by the Act is tailored to the unique needs of” a particular child”. Endrew F., 137 S.Ct. at 1002. What is more, as detailed below, substantial evidence provided by the Parents demonstrates that the DOE failed to comply with the IDEA’s procedural requirements, resulting in an IEP that denied Parents meaningful participation in the Student’s educational planning and that denied Student a FAPE.

The DOE failed to provide prior written notice of its refusal to include the Parents’ requested accommodations in Student’s IEP.

The IDEA requires the school district to provide parents with prior written notice whenever it proposes to initiate or change the identification, evaluation, or educational placement of the child, or the provision of a FAPE a student. 20 USCS § 1415(b). A PWN is required even if the change is being proposed by the parent. See Letter to Lieberman, 52 IDELR 18 (OSEP 2008). Prior Written Notice (“PWN”) must include a description of the action proposed or refused by the district; an explanation of why the district proposes or refuses to take the action and a description of each evaluation procedure, assessment, record, or report the district used as a basis for the proposed or refused action; a description of other options considered by the IEP Team and the reason why those options were rejected; and a description of the factors that are relevant to the district’s proposal or refusal. 20 USCS § 1415(c).

Here, Father credibly testified that Parents requested accommodations recommended by the 2023 neuropsychological report, including a recordable pen, that all of Student’s assignments be delivered on a single online platform, and that Student have additional time (without grading penalty) to complete assignments. Tr. 155-166. The IEP and the PWN the DOE generated after the meeting make no reference to the Parents’ requested accommodations or to the DOE’s refusal to adopt them. See generally Ex. E, D. The only options listed on the PWN as considered and rejected were “general education” and a “15:1 special class.” Ex. D. There is no indication from either document that the IEP team considered these requests, or the factors relevant to the team’s refusal to grant them. Ex. E, D. As such, I find that the DOE failed to comply with the prior written notice requirements of 20 USCS § 1415(c), denying the Parents’ meaningful participation in the creation of Student’s program.

Even after Parents requested an impartial hearing, the DOE failed to comply with procedural requirements.

The DOE’s behavior after the filing of Parents’ DPC further underscores its inability or unwillingness to meaningfully engage Parents in the creation of Student’s educational program. As the Supreme Court noted, “the nature of the IEP process, from the initial consultation through state administrative proceedings, ensures that parents and school representatives will fully air their respective opinions on the degree of progress a child’s IEP should pursue.” Endrew F. at 404 (citing 20 U.S.C.S. §§ 1414, 1415)(emphasis added.). During administrative proceedings, the IDEA requires the district, if it has not sent a PWN regarding the subject matter in the DPC, to provide a response that includes an explanation of why the school district refused to take the action raised in the complaint; a description of other options the team considered and the reasons why those options were rejected; a description of each evaluation, assessment, record or report the school district used as a basis for the refused action; and (d) a description of the factors relevant to the school district's refusal. 8 NYCRR2 200.5(i)(4). The DOE’s DPR, like its PWN, makes no reference to the DOE’s refusal to include the Parents’ requested accommodations and does not describe any evaluations, procedures, assessments or factors relevant to the district’s refusal to provide the Parents’ requested accommodations. Ex. G. T.

Another critical component of the due process hearing is the resolution meeting. In this case, the DOE again failed to comply with Federal and State law when it failed to convene a resolution meeting within 15 days of receipt of Parent’s DPC. See 8 NYCRR 200.5(j)(2)(i), see also 20 USC 1415(f)(1)(B), Ex. I-5. What is more, even after the DOE Representative stated his “belief, based on the review of this case, that resolution may be the most appropriate remedy to this issue” and I issued an interim order directing the DOE to convene a resolution session, the DOE nonetheless failed to do so. See. Ex. I-5, Tr. 3, 40-41.

For each of the reasons above, I find that the DOE’s procedural failures, taken together, significantly impeded the Parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, denying Student a FAPE. 20 U.S.C. § 1415(f)(3)(E)(ii); 34 CFR 300.513(a)(2); 8 NYCRR 200.5(j)(4)(ii).

The DOE failed to demonstrate that Student’s IEP was reasonably calculated to allow Student to make progress in light of Student’s circumstances, denying Student a FAPE.

Under the IDEA, “the adequacy of a given individualized education program (IEP) turns on the unique circumstances of the child for whom it was created.” Endrew F. at 404. Therefore, a reviewing court or hearing officer may fairly expect school authorities “to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.” Id. Here, as noted above, the only evaluation considered at the IEP meeting recommended a recording pen, assignments submitted on a single platform, and extended time for assignments. E-1 to E-4, B-7. Parents also requested these accommodations at the meeting. Tr. 155-166. However, DOE’s IEP, PWN and due process response all failed to offer a cogent or responsive explanation for the DOE’s decision to deny these accommodations.

In fact, credible evidence presented by Parents demonstrates that the DOE refused the accommodation requests, not based on an individualized determination of what was appropriate for Student, but based on general policies or previous practice at High School. For example, when Parents requested that Student be permitted to utilize a LiveScribe Pen, Father testified credibly that Principal denied the request because “it was just not done,” because school staff did not know of any other students who were allowed to use similar technology, and because “union rules would not allow any student to record a teacher.” Tr. 145, 165-166. 3 Likewise, when denying Parent’s request that Student’s assignments be posted on a single platform, Father credibly testified that Principal said it would be “unfair to expect teachers to do something just for (Student).” Tr. 162. Similarly, when denying Parents’ request for accommodations allowing Student to submit late assignments, Father testified that Principal said that “once he provided such accommodations [to Student], he would actually also have to start providing such accommodations to other students”. Tr. 157. Father also testified that [REDACTED] (“School Psychologist”) told him that “as policy” the school does not allow late submission of homework as an accommodation. Tr. 165. To make IEP recommendations based on other students or on school policy, rather than Student’s individual needs, flies in the face of the IDEA’s core purpose. As the Supreme Court has noted, “[a] focus on the particular child is at the core of the IDEA. The instruction offered must be “specially designed” to meet a child’s ‘unique needs” through an ‘[i]ndividualized education program.’” Endrew F. at 404, citing 20 USC §§1401(29), (14).

If the DOE had legitimate reasons for denying Parents’ requests, based on what was appropriate in light of Student’s individual circumstances, it failed to present them at hearing. For example, Father testified that the principal told Parents that because “they offered the SETSS teacher, [Student] would not need those requested accommodations.” Tr. 159. However, given that the only evaluation available to the IEP team at the time of the meeting recommended both SETSS and additional accommodations, the record does not support a finding that SETSS without these

There is no evidence that the requested technology conflicts any union rule.

evaluations was sufficient to allow Student to make progress that was meaningful in light of his individual circumstances. Therefore, I find that the IEP was substantively inappropriate as the rejection of Parents’ accommodation request was based on the needs or preferences of High School staff rather than on Student’s individual circumstances. I find that this denied Student a FAPE.

Given that the DOE bore the burden to establish that it provided the student with a FAPE, the DOE submitted no evidence or testimony in support of its position, and the record shows that the DOE failed to comply with the IDEA’s procedural safeguards when denying the Parent’s requested accommodations or even after the Parents filed a DPC, I find that the DOE failed to address or sustain its burden under the Education Law and failed to demonstrate it provided the Student with a FAPE during the 2022-23 school year.

REQUESTED RELIEF

The Supreme Court has emphasized that relief under the IDEA depends, in part, on “equitable considerations.” See Sch. Comm. of Town of Burlington, Mass. v. Dept. of Educ. of Mass., 471 U.S. 359, 374 (1985); Carter, 510 U.S. at 15-16. As previously discussed, “when a school district denies a child a FAPE, the courts have ‘broad discretion’ to fashion an appropriate remedy.” Boose v District of Columbia, 786 F. 3d 1054, 1056 (D.C. Cir. 2015), citing Carter, 510 U.S. at 15-16). 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.” Doe v. East Lyme, 790 F.3d at 454.

An appropriate equitable remedy for a denial of FAPE can include an award of compensatory education. E.M. v. New York City Dept. of Educ., 758 F.3d 442, 451 (2d Cir. 2014). IHOs, like reviewing courts, “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 Bd. of Educ., 790 F.3d 440, 454 (2d Cir. 2015). An award of compensatory education “must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place.” Reid v. Dist. of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005)

In this case, the relief requested by the Parents is equitable in nature, as they are asking me to devise an appropriate remedy to address the DOE’s failure to provide the Student with a FAPE in the 2023 IEP. Specifically, the Parents have requested that I order the DOE to provide the following relief:

1) List all of Student’s assignments on one single platform;

2) Allow Student to submit all assignments using one method;

3) Allow Student to submit assignments without penalty for at least three days after receiving notification that they are missing;

4) Provide an accurate way to check in real time on one platform – specifically the Jupiter platform -- what assignments are missing.

5) Allow Student the use of assistive technology (“AT”) in the form of a recording pen for note-taking, and permission to audio record lectures.

6) Retroactively apply the above-referenced accommodations when grading Student’s work for the 2022-23 school year, or at least the second semester. See. Tr. 51-54., Ex. F-3 to

F-4;

At hearing, the DOE had the burden of production and was obligated to describe its views, based on a fact-specific inquiry set forth in an evidentiary record, regarding an appropriate compensatory education remedy that could most reasonably and efficiently place the Student in the position he would have been in but for the denial of a FAPE. See SRO Appeal No. 16-033 at 11, citing Doe v. Lyme Bd. of Educ., 790 F.3d 440, 457 (2d Cir. 2015). The DOE failed to meet this burden at hearing. As such, I am forced to craft a remedy based only on the evidence presented by Parents. I will address each of the Parents’ proposed remedies in turn.

Platforms

Parents request that DOE be ordered to post all of Student’s assignments on a single platform, to allow him to submit all assignments using a single method, and to provide real-time updates on Jupiter as to which assignments are missing. Ex. F. The District Representative argued in an opening statement that these requested remedies “may prove difficult to implement,” but introduced no evidence in support of this claim. Tr. 54. As Neuropsychologist testified, even if Student’s assignments are posted and recorded on a single platform, “the platform needs to be updated.” Tr. 317. Given my general familiarity with the demands on teachers’ time and on school-based technology systems, I am also skeptical about the DOE’s ability to implement this order, particularly its ability to compel up to nine teachers at a time to update a platform in real time. However, my skepticism is not evidence. The DOE had ample opportunity to present evidence as to why the Parents’ requested remedy was unfeasible, or what other remedy or remedies would be more appropriate. It failed to do so.

By contrast, unrebutted testimony from Student’s evaluating neuropsychologist, his executive functioning coach, and the Parents demonstrate that these technological accommodations are appropriate to help ensure that Student knows his homework assignments, completes the correct assignments, and submits them in time to receive meaningful feedback from teachers to allow him to make progress. Ex. B-7, Tr. 137, 194, 225, 228, 233, 236. Father testified that school staff told him that the SETSS “would teach [Student] the other skills he needed so that he didn’t need all the other accommodations.” Tr. 324. However, without any testimony or evidence from the DOE to explain what SETSS is,^[4] or how the school came to the conclusion that the Parents’ requested accommodations were not necessary in light of the SETSS mandated by the IEP, I give little weight to that statement. Moreover, Neuropsychologist testified that while Student “needs direct instruction and organizational strategies, so [Neuropsychologist does] think SETSS can be helpful, [he] do[es]n’t think it’s helpful on its own.” Tr. 315. Therefore, despite my skepticism about the DOE’s ability to implement these accommodations, the record demonstrates that the accommodations are appropriate and I will order the DOE to provide them.

It is also clear from the record that technological changes alone are not sufficient to address Student’s significant challenges with time management and organization. Neuropsychologist was unequivocal that Student “requires direct instruction” to learn organizational skills. Tr. 319. I am mindful that Student is mandated to receive SETSS services three times per week to work toward IEP goals that include improving his organizational and time management skills. E-8, Ex. E-11. It is possible that Student’s IEP-mandated SETSS will provide the type of supports Coach testified would be effective with Student, including weekly check-ins with a teacher to determine what assignments need to be done and to help Student track what has been submitted and what still needs to be done. Tr 228-229, 230-32, 278-279. However, Parent testified that the DOE’s plan for implementing the SETSS services is to utilize a provider who would work with Student outside of school. 152. 323-324. I find it very difficult to see how a SETSS provider can provide the kind of real-time check-ins Coach testified Student needs if SETSS is provided by an individual who, like Coach, does not work at Student’s school and does not provide the services during the school day. For example, when Student’s teachers did not respond to Coach’s emails inquiring about late assignments, Coach was simply unable to determine what was due. Tr. 215-217, 219. Ex. T. Therefore, I will order the DOE to provide Student’s IEP-mandated SETSS services during the school day, via either push-in or pull-out services, as determined to be appropriate by the SETSS provider.

Additional Time to Submit Assignments

The record demonstrates that additional time to submit assignments is appropriate relief for the Student. Documentary and testimonial evidence make plain that Student, due to his ADHD, struggles to submit assignments on time. Tr. 99-101, 103-110, 119-121, 123-137, 189131, 317-319, Ex. B, E-9, E-10, J, K, L, M, N, O, P, Q, R, W. After evaluating Student, Neuropsychologist recommended that Student be provided “additional time for in-class and homework assignments (without penalty if submitted after the due date).” Ex. B-7. Therefore, the unrebutted evidence shows that additional time to submit assignments, without penalty, is appropriate. However, as Coach testified, Student also needs an adult at the school to communicate with him, to figure out what assignments Student has missing, to “follow up with Student and say, listen, I noticed you’re missing X amount of items. . . I checked in with you a week ago and you have yet to make much progress. What do we need to do to solve this problem?” Ex. 229. Given this, and my concerns regarding the feasibility of real-time updates to the school’s online platform, I will order that Student be allowed one additional week, beyond the original due date, to submit assignments without grading penalty. Consistent with Student’s IEP, this will allow the SETSS provider to meet with Student approximately three times between the original due date and the extended due date to consult with Student and his teachers, to determine any missing assignments, and to work with Student to create a plan to complete them.

Recording Pen

I also find that AT in the form of a recording pen is appropriate for Student and necessary to allow him to make progress. The only evaluation considered at the IEP meeting recommends an assistive technology (“AT”) evaluation and that Student be allowed to use a recordable pen such as a LiveScribe Echo or a tablet/computer app for simultaneous recording of the class while taking notes. Ex. B-7. Testimony from Coach and Father corroborate the appropriateness of this recommendation. Tr. 144, 233-234. Coach testified that due to his ADHD, Student struggles to take notes while listening to a teacher, causing him to miss information. Tr. 233-234. Father’s testimony corroborated this recommendation.

At hearing, the DOE did not dispute the appropriateness of a recording pen. In fact, the DOE’s only objection to the request is that it was not raised in the DPC.^[5] See Tr. 54. It is possible that DOE could have addressed Student’s note-taking needs through another accommodation or support. For example, Coach testified that this need could be addressed appropriately through recorded lectures or through teacher-provided notes that allow student to fill in the blanks. Tr. 235. However, the IEP makes no mention of Student’s difficulties with note-taking, and without any explanation, says that Student does not need assistive technology. Ex. E-7. The PWN is also silent as to why the DOE denied the Parent’s request for a recording pen and there is no evidence that the DOE conducted an AT evaluation. Ex. D. Given the consistent evidence demonstrating that a recording pen is an appropriate accommodation for Student, I find that such a pen is appropriate and is necessary for Student to make meaningful progress in light of his organizational and attention deficits. Therefore, I will order the DOE to provide Student with AT in the form of a recording pen for note-taking and to allow him to use the pen to record lectures.

Student’s grades

I decline to order the DOE to re-grade Student’s work for the 2022-23 school year because I do not find that it is appropriate or necessary to put the Student back in the position he would have been in but for the DOE’s failure to create an appropriate IEP in April 2023.

Parents’ DPC did not challenge the appropriateness of Student’s 504 plan, did not assert any compensatory claims for any period before the 2023 IEP, and did not allege that the DOE delayed in creating the 2023 IEP. Therefore, my findings are limited only to the appropriateness of the 2023 IEP and remedies necessary to put the Student back in the position he would have been in had the DOE created an appropriate IEP at that time. See Reid at 524.

The challenged IEP was created on 4/27/2023. Although it is not clear exactly when the DOE provided the finalized IEP, PWN and consent for services to the Parents, there is no allegation that these documents were untimely, and their printing dates suggest they were created during the first week of May 2023 and that Parents returned the consent form on 6/12/2023. Ex. D, H, VI. Therefore, even if the DOE had created an IEP allowing Student extended time to submit assignments without penalty, the IEP would have gone in effect no sooner than 6/12/2023, fifteen days before the 2022-23 school year ended. In light of emails from Student’s teachers indicating that “late homework gets 50% credit” and that “homework is worth 10% of the marking period grade,” I am simply not persuaded that re-grading assignments from the last fifteen days of the 2022-23 school year would put Student in a meaningfully different position from the one he would have been in if the DOE had agreed to this accommodation, and had implemented it beginning on 6/12/2023. Therefore, I decline to order this relief.

Other relief

Finally, although not requested by the Parents or proposed by the DOE, I will exercise my equitable authority to order the DOE to reconvene to revise Student’s IEP consistent with this order. I am deeply troubled by the evidence regarding the behavior of DOE staff during the 2023 IEP meeting. In addition to the procedural and substantive deficiencies detailed above, I note that, although not alleged in the DPC, DOE records suggest that no special education teacher participated in the IEP meeting, as required by law. 20 USC 1414(d)(1)(B)(i), Ex. E-18. As detailed above, DOE staff also failed to provide legally sufficient prior written notice and denied Parents’ requests based not on Student’s individual needs, but based on school policies, frustrating the IDEA’s core substantive requirements that an IEP be developed based on the unique circumstances of the student for whom the IEP is created. Before Student’s next IEP meeting, I strongly urge the members of the IEP team to review the laws and regulations related to special education and students with disabilities, available on the New York State Education Department’s website at https://www.nysed.gov/special-education/laws-and-regulations-related-special-education-andstudents-disabilities. I will also order the DOE to provide a copy of this decision to each of the members of the IEP team listed on Ex. E-18 and to all other DOE staff members who participate in the meeting I am ordering to revise Student’s IEP.

I have reviewed the parties’ remaining contentions and find them to be either 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 the Parents’ remaining claims not discussed herein are dismissed with prejudice.

ORDER

Based upon the above findings of fact, it is hereby:

1. ORDERED, the DOE shall, within 7 days of this order, ensure that the SETSS services mandated by Student’s IEP are provided at Student’s school, during the school day, either via push-in or pull-out, as determined appropriate by the SETSS provider.

2. ORDERED that, in the event that Parents provide Student with assistive technology (“AT”) in the form of a recording pen for note taking, the DOE shall immediately allow Student to use the pen to audio record lectures at Student’s school.

3. ORDERED, the DOE, within 15 days of this order, shall convene a duly-constituted

CSE/IEP meeting and shall revise Student’s IEP to include the following accommodations and services:

a. All of Student’s assignments will be listed on one single platform;

b. Student will be allowed to submit all assignments using one method, the details of which will be determined by the IEP team;

c. Student will receive extended time (without penalty) to submit assignments, specifically one week after the assignment’s original due date;

d. Student will be provided an accurate way to check in real time on one platform – specifically the Jupiter platform -- what assignments are missing;

e. The DOE shall provide the Student with AT in the form of a recording pen for note-taking and shall allow Student to use the pen to audio record lectures;

f. SETSS services shall be provided during the school day, either via push-in or pull-out, as determined appropriate by the SETSS provider.

4. ORDERED, within 7 days of this order, the DOE shall provide a copy of this decision to each of the members of Student’s 4/27/2023 IEP team listed on Ex. E-18.

5. ORDERED, in advance of the CSE/IEP meeting ordered in #3 (above), the DOE shall provide a copy of this order to each DOE staff member who participates in that meeting. SO ORDERED. DATED: September 15, 2023

Ashley Grant (signed electronically)

Impartial Hearing Officer

Ashley Grant

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

NONE

PARENT EVIDENCE

Exhibit Title Date Pages A Comprehensive Neuropsychological Evaluation 2018-2019 25 B Updated Neuropsychological Evaluation 2023 15 C Neuropsychologist’s Curriculum Vitae undated 7 D Prior Written Notice (Notice of Recommendation) 5/1/2023 6 E DOE’s Individualized Education Program (IEP) 5/5/2023 18 F Impartial Hearing Request (with exhibits) 6/5/2023 33 G DOE’s Due Process Response 6/8/2023 2 H Consent for Initial Services (Partial) 6/12/2023 1

Interim Order, July 11, 2023 & emails related to Various dates

I order 8

Jupiter E-Mails indicating Missing Assignments September 2022 –

J 39

June 2023

K Forensic Deconstruction of Errors, 1-6 Various dates 13

Copies of Student’s 2022-2023 Planner

L 3

Planner Rules and Commandments

Following Planner Rules:Weekly Pages September 8, 2022

M 11

– October 16, 2022

Not Following Planner Rules pursuant to Weekly Pages,

N therapist’s recommendation October 17, 2022 – 9

November 16, 2022

Not following Planner Rules because using private November 28, 2022

O tutor – January 11, 2023 13

Weekly Pages,

Following Planner Rules: January 12, 2023 –

P 38

Weekly Pages, May 24, 2023

Failure to e-mail teachers regarding missing November 17, 2022

Q assignments: – November 27, 3

Weekly Pages, 2022

E-mails from (Student) to his teachers regarding Various dates making up missing assignments, scheduling a make-up test from when he was absent because he

R 19

was out sick, and seeking clarification regarding assignments turned in late but not reflected on

Jupiter

S Resume and Certification in ADHD Management 3 pages

E-mails from (Coach) to (Student)’s teachers

T seeking clarification regarding missing assignments 4 pages

and ambiguities in Jupiter and Google Classroom

(Coach)’s Tracker Info, Lists and Charts 17

U

pages V Copy of 2022-2023 Report Cards 2 pages

Emails 1/26/2023W 3 pages

1/27/2023

IHO EVIDENCE

Exhibit Title Date Pages I Due Process Complaint 6/5/2023 5 II Interim Order 7/11/2023 4 III Emails re additional relief sought 8/2/2023 6 IV Extension Order 8/8/2023 1 V Emails re citation in DOE closing various 7 VI DOE 2022-23 calendar 2022-23 2

---

Footnotes

[1] Although there is reference in the record to Student’s 504 plan, neither party asserted arguments under Section 504 of the Rehabilitation Act. See Ex. F and the transcript, generally.

[2] In support of this position, DOE Counsel 2 cited broadly to Article 89 of New York Education Law. Tr. 338-339, 344, 346. I advised DOE Counsel 2 that I was confused by this argument and, when he was not able to clarify on the record, gave him two business days to email me the portion of Article 89 he cited in support of this argument. See Tr. 344-346, IHO Ex. V. DOE Counsel 2 later emailed to clarify that he was “unable to locate the regulation to which (his) closing statement referred, and (he) may be confused about the law in this case.” IHO Ex. V.

[4] As the State Review Officer has noted, SETSS is not defined in the State continuum of special education services, the term is not used anywhere other than within New York City, and a static and reliable definition of "SETSS" does not exist within the district. Application of a Student with a Disability, Appeal No. 23-155 (citing 8 NYCRR 200.6).

[5] I overruled this objection. Parents provided the DOE with notice of this additional request for relief via email well in advance of the hearing. See Ex. III. As I noted in my email to the parties, claims/issues are different from requests for relief/remedies. Id. The IHO is limited to claims raised in the DPC or agreed to by the opposing party. See B.P. v. New York City Dep't of Educ., 841 F. Supp. 2d 605, 611 (E.D.N.Y. 2012). However, the filer is only responsible for proposing relief or remedies known or available to them at the time of filing and the IHO has broad equitable authority regarding appropriate relief. See 8 NYCRR 200.5(i)(1), L.O. v. New York City Dep’t of Educ., 822 F.3d 95, 125 (2d Cir. 2016).