New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 601147 - NYC: 249171

FINDINGS OF FACT AND DECISION

Student’s Name: 1 REDACTED (“student”)

Date of Birth: REDACTED

School District: REDACTED

Hearing Requested by: REDACTED (“Parents”)

Date(s) of Hearing: 8/10/2023 and 8/18/2023

Actual Record Closed Date: 8/24/2023

Date of Decision: 8/31/2023

Date of Distribution if Different than Decision Date: N/A

Hearing Officer: Leah Martin, Esq.

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

NAMES AND TITLES OF PERSONS WHO APPEARED ON 8/10/2023

For the Student:

REDACTED (“Parents’ Counsel”), REDACTED (“Private School Teacher”)

For the Department of Education:

REDACTED (“DOE Representative”)

NAMES AND TITLES OF PERSONS WHO APPEARED ON 8/18/2023

For the Student:

REDACTED (“Parents’ Counsel”), REDACTED (“Parent”)

For the Department of Education:

REDACTED (“DOE Representative”)

REDACTED (“DOE Observer”)

INTRODUCTION AND PROCEDURAL HISTORY

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parents’ Due Process Complaint (“DPC") filed on June 21, 2023. (Ex. 1).^[2] In the DPC, Parents allege that the Department of Education (“DOE”) failed to offer the student a free appropriate public education (“FAPE”) under the Individuals with Disabilities Education Act (“IDEA”) for the 2021-22 and 2022-23 school years. (Ex. 1). Parents have unilaterally placed the student in a private school (“Private School”) and are seeking funding for the cost of that placement for the end of the 2022-23 school year (the student was not placed there until May of 2023). (Ex. 1). Parents are additionally seeking compensatory speech-language therapy (“SLT”) and occupational therapy (“OT”) sessions for those that were mandated but not provided during the 2022-23 school year, and a number of independent educational evaluations (“IEEs”). (Id.).

I was appointed on June 23, 2023. On July 5, 2023, the DOE sent Parents a due process response (“DPR”) that only addressed the 3/16/22 IEP and none of Parents’ allegations. (Ex. B). On July 25, Parents’ Counsel appeared virtually for a pre-hearing conference (“PHC”). The DOE did not appear, and a status conference date was set. (PHC Transcript). On July 31, a status conference was held, during which hearing dates were set. (SC Transcript 7.31.23). During that conference, the parties agreed to take witnesses out of order to accommodate witness availability. (Id.). The statute of limitations was raised by the district at that time but given the fact-specific nature of the inquiry, litigation of the issue was reserved for the merits hearing. (Id.). Later that day, pre-hearing orders were sent to the parties by email. (See Pre-Hearing Orders).

A virtual due process hearing (“DPH”) was held on August 10 and 18, 2023. It was a closed hearing. Parents’ Counsel and DOE Representative were present both days. Parent was only present on August 18. At the DPH, the DOE presented fifteen exhibits but no witnesses. Parents presented fifteen exhibits (A-O), but only ten (B, D, H-O) were entered into evidence because the rest were duplicates of DOE Exhibits.^[3] Parents presented testimony (through affidavits and live cross-examination) of two witnesses at the hearing: Private School Teacher^[4] and Parent. The parties made oral closing arguments on the record. (Tr. 95-108). The record was closed on August 24, 2023, upon receipt of the hearing transcript.

JURISDICTION

The due process hearing was held, and a decision in this matter is being rendered pursuant to the IDEA, 20 U.S.C. §1400 et seq., its implementing regulations, 34 C.F.R. §300 et seq., the New York State Education Law, Educ. Law §4404 et seq., and its implementing regulations, 8 NYCRR §200.5 et seq.

BACKGROUND

During the 2021-22 school year the student was in fifth grade and classified as a student with autism. (Ex. 1-2). During the 2022-23 school year the student was in sixth grade. (Id.). On March 11, 2021, the district convened a meeting of the committee on special education (“CSE”) to develop an individualized education program (“IEP”) for the student for the 2021-22 12-month school year. (Id.). ^[5] The 3/11/21 IEP recommended an 8:1+1 special class program, but the student was placed in a 12:1:1 class at a community school for the entirety of the 2021-22 school year. (Id.; 8-34; 9-2; O-1).

On March 16, 2022, the CSE convened to develop an IEP for the 2022-23 12-month school year.

^[6] (Id.). The 3/16/22 IEP again recommended an 8:1+1 special class with related services of counseling (1x30x1 and 1x30x2), OT (3x30x2), and SLT (4x30x1), with a full-time behavior support paraprofessional, assistive technology (“AT”), and special transportation on a 12-month basis. (Ex. 8-25-31). The district again placed the student in a 12:1:1 class and failed to provide the mandated OT services. (Ex. 1-2-3; O-1). Parents contacted the district with their concerns about the student’s placement and in March 2023, they agreed to transfer the student to a district 75 school so that the student’s IEP could be implemented correctly. (Ex. 1-3). However, the district 75 school placed the student in a 10:1:1 class and failed to provide his mandated SLT services. (Id.).

On May 1, 2023, the CSE held its triennial review for the student. (Id.).^[7] In preparation for the meeting, the DOE conducted a psychoeducational assessment. (Id.). On May 1, 2023, Parents sent the DOE a Ten-Day Notice Letter, providing notice of their concerns with the 5/1/23 IEP and disagreement with the student’s triennial evaluation. (Ex. 1-4; H). The Ten-Day Notice informed the DOE of the Parents’ intent to enroll the student in the Private School for the remainder of the school year, and seek public funding, unless an appropriate program was offered by the DOE. (Ex. 1-4; H). The DOE did not respond to the Ten-Day Notice and the student was unilaterally placed at the Private School for the remainder of the 2022-23 school year, starting on May 19. (Ex. 1-4; O-3).

ISSUES

Parents allege a number of procedural and substantive violations which resulted in a denial of a FAPE for the 2021-22 and 2022-23 school years. (Ex. 1). For the 2021-22 school year, Parents allege that the IEP’s annual goals were vague and immeasurable, that the IEP failed to provide sufficient support or a behavior intervention plan (“BIP”) to meet the student’s behavioral needs, that the IEP provided insufficient parent counseling and training (“PCAT”), and that the district failed to place the student in his mandated 8:1+1 special class. (Ex. 1-4-5). For the 2022-23 school year, Parents allege that the district failed to comprehensively re-evaluate the student, that the IEP’s annual goals were vague and immeasurable, that the IEP failed to provide sufficient support or a BIP to meet the student’s behavioral needs, that the IEP provided insufficient PCAT, that the district failed to place the student in his mandated 8:1+1 special class, and that the district failed to fully implement the student’s mandated OT and SLT. (Ex. 1-3-5). Parents additionally contend that the Private School was an appropriate placement for the student and that the equities are in their favor. (Ex. 1-5-6). Finally, Parents claim that they are entitled to the following IEEs:

• Neuropsychological Evaluation ($6,000) • Speech-Language Evaluation ($2,800) • AT Evaluation ($3,000) • OT Evaluation ($2,500) • Physical Therapy (“PT”) Evaluation ($2,500) • Applied Behavior Analysis (“ABA”) Skills Assessment ($4,950) • Functional Behavior Assessment (“FBA”) ($4,125) (Ex. 1-6).

The DOE has argued that all claims related to the 2021-22 school year are time-barred by the statute of limitations (“SOL”) here. (Tr. 70, 95). Additionally, the DOE claimed that the requested IEEs are unnecessary (Tr. 96) and should be denied because the IEE request was made for the first time in the DPC (Tr. 108). Furthermore, the DOE argued that a FAPE was provided (Tr. 95), that the Private School was not appropriate because the student’s class had nine students (Tr. 71, 97-98), and that the equities weigh against the Parents because the Private School costs were excessive (Tr. 96-97) and Parents’ late placement of the student and late notice to the district should be held against them (Tr. 71, 97). The DOE has not contested the allegations regarding the failure to implement the student’s IEPs for both school years.

FINDINGS OF FACT

After a full review of the record generated at the hearing, I make the following findings of fact: ^[8] The student was diagnosed with autism at the age of two and received early intervention services. (Ex. 1-2). The student has difficulty sustaining attention and works best with individualized, 1:1 instruction. (Ex. 2-2-3, 5). He struggles with whole group and small group instruction. (Ex. 2-3). He has significant deficits in receptive, expressive, and pragmatic language skills. (Ex. 2-3, 6-7; 8-6; 13-2). The student has difficulty identifying and expressing emotion and needs support to build peer connections. (Ex. 2-7-8; 8-6; 13-2). He also struggles with appropriate eye contact and social norms like greetings and turn-taking. (Ex. 2-7-8, 10). The student benefits from sensory regulation activities. (Ex. 2-8; 13-4). The student has difficulties with fine and gross motor coordination, sequencing activities, visual motor coordination, and self-regulation. (Ex. 8-7). He also has “significant sensitivity to environmental noise.” (Ex. D-16). The student is a flight risk and is also at risk for self-harming behaviors, so he requires a full-time behavior paraprofessional for safety reasons. (Ex. 2-10, 36; 8-8-9). He also requires assistive technology (a Dynamic Display Speech Generating Device with Literacy Application Device). (Ex. 2-10, 36; 7; 8-8-9, 27; 13-5). The student requires a 12-month program. (Ex. 2-36; 8-25; 13-17). The student participates in alternate State and district-wide assessments of student achievement. (Ex. 2-38; 8-29-30; 9-10; 13-21). He requires special transportation (air conditioning and limited travel time from the closest safe curb to school). (Ex. 2-39-40; 8-31; 13-22).

At the time of the 3/11/21 IEP, the student was reading at a kindergarten level, 9 and could perform math calculations at a third or fourth 10 grade level. (Ex. 2-2, 40). The 3/11/21 IEP indicated that during the 2020-21 school year, the student was in a 12:1:1 class and “would benefit from a specialized school and a smaller teacher:student ratio[].” (Ex. 2-43). On June 1, 2021, the DOE sent Parents a Prior Written Notice (“PWN”) of the recommended program for the 2021-22 school year. (Ex. 3). The PWN indicated that in creating the 3/11/21 IEP, the CSE relied on a PT assessment from February 2020, a social history update from February 2020, and an AT assessment from 2017. (Ex. 3-2). 11 On July 7, 2021, the DOE sent Parents a PWN and School Location Letter (“SLL”) indicating where the student’s 3/11/21 IEP would be implemented (“Public School1”). However, the student was not placed at Public School1 and instead attended a different community school (“Public School2”) for the entire 2021-22 school year. (Ex. 1-2; D-3; O-1). It is unclear from the record why the student was not placed in accordance with the SLL.

It appears that Parents had a private psychoeducational evaluation done in November-December of 2021. (Ex. D-1). However, it does not appear from the record that this evaluation was ever provided to the DOE or considered by the CSE -it is not mentioned in the 3/16/22 IEP or corresponding PWN. (Ex. 8; 9). Thus, it will not be considered here in terms of the sufficiency of the DOE’s triennial evaluation or the 3/16/22 or 5/1/23 IEPs.

At the time of the 3/16/22 IEP meeting, the student was reading at a Fountas and Pinnell Level F, which corresponds to first grade. (Ex. 8-1). His grade-equivalent in phonics was third grade. (Ex. 8-1). 12 His math skills remained at a third-grade level. (Ex. 8-1, 32). The 3/16/22 IEP indicated that the student was placed in a 12:1:1 class during the 2021-22 school year, but “would benefit from a specialized school and a smaller teacher-to-student ratio” than 12:1:1. (Ex. 8-34).

The 3/16/22 IEP contained the following annual goals:

• Reading: In one year, [the student] will give a retell of a text by naming one event from the beginning, one event from the middle, and one event from the end using picture clues and details from the text in 3 out of 5 consecutive trials. • Reading: In one year, [the student] will answer who, what, when, and where questions when he is provided with two or more options with faded picture clues with at least 70% accuracy.

9 The student’s Teacher’s College Reading and Writing Project level as of January 2021, was level C. (Ex. 2-2). 10 The end of the IEP lists his math level as third grade, but elsewhere it says that he got a 99% on the “Engage NY, grade 4, module 3, Topic F quiz” and an 80% on the “Engage NY, grade 4, Module 3 Division Assessment.” (Ex. 2-2). 11 Despite the PWN’s inclusion of the 2017 AT assessment, the IEP itself notes that an AT re-evaluation was done during the 2019-20 school year (on February 7, 2020), and the student’s AT device was changed in response to the results of that assessment. (Ex. 2-6; 7-1). The student’s teachers and service providers were then trained on the new AT device. (Ex. 6-1; 7). 12 Despite these higher grade-level scores, the end of the IEP still lists the student’s reading equivalent as a kindergarten level. (Ex. 8-32). It is unclear whether that was intentional or a typographical error.

• Writing: In one year, [the student] will orally state and then write his own generated sentences with a subject and predicate in 3 out of 5 consecutive trials.

• Math: In one year, [the student] will read, understand, and solve a one-step word problem involving any operation with at least 70% accuracy.

• Speech and Language: [the student] will answer “who”, “what”, “where”, “when”, “why”, and “how” questions, presented verbally or orthographically, based on pictures of personal experiences, familiar objects, text read aloud to him, text read independently or action picture cards, with fading visual, verbal, phonemic, and orthographic cues [in] 4/5 trials across 5 consecutive sessions. • Speech and Language: [the student] will follow one and two-step directives with embedded linguistic, temporal, spatial and sequential concepts, including size, location and state, provided verbally or orthographically, with fading cues in the form of hand over hand modeling and repetition [in] 4/5 trials across 5 consecutive sessions. • Speech and Language: [the student] will produce noun+verb+direct object sentence structures, using his preferred method of communication (i.e., in the oral form, written form, or using his Assistive Technology device), to describe picture cards presented to him, share a personal narrative, and/or retell a short story read independently or read aloud to him, containing at least 3 grammatically correct and complete sentences, including a beginning, middle, and end, with fading prompts and cues (i.e., graphic organizers, sentence starters, choices, modeling) [in] 4/5 trials across 5 consecutive sessions. • Speech and Language: [the student] will spontaneously use 5-7 word, grammatically correct and complete utterances, using his preferred method of communication (i.e., oral form, written form, Assistive Technology Device) to request (e.g., “I want the blue ball”), comment, greet, reject, obtain information, or to ask and answer at least 2 questions, during structured and non-structured tasks, in order to increase communication and collaborative play skills (e.g., turn taking, sharing items, negotiating play/ activity) with fading prompts and cues [in] 4/5 trials across 5 consecutive sessions. • OT: In one year, [the student] will demonstrate increased executive functioning independence as demonstrated by his ability to follow complex 3-4 step instructions while requiring min cueing and redirection to complete correctly and successfully [in] 4 out of 5 trials. • OT: In one year, [the student] will demonstrate increased attention to task and sensory processing skills by demonstrating the ability to sit through a 15 minute classroom task without sensory or movement breaks and minimal cueing and redirection to remain on task [in] 4 out of 5 trials. • OT: In one year, [the student] will demonstrate increased graphomotor/writing skill independence as demonstrated by the ability to write 3-4 sentences while demonstrating correct letter sizing, spacing, and alignment, with minimal to no verbal or visual cues provided [w]ith 75% accuracy. • Counseling: When prompted, [the student] will be able to identify his own emotions/feelings (ex. happy, sad, tired, etc.) and express reason for the emotion [in] 3 out of 5 trials. • Counseling: [the student] will be able to socially interact in some way with peers [in] 2 out of 5 trials. (Ex. 8-10-23). It also contained the following short-term benchmarks: • [the student] will answer basic “who”, “what”, “where”, and “when” questions, presented verbally or orthographically, based on pictures of personal experiences, familiar objects, text read aloud to him, text read independently or action picture cards. • [the student] will answer “why” and “how” questions, presented verbally or orthographically, based on pictures of personal experiences, familiar objects, text read aloud to him, text read independently or action picture cards. • [the student] will answer “wh” questions, presented verbally or orthographically, based on his personal experiences and events occurring in his environment, with fading visual supports and cueing. • [the student] will follow one-step directives with embedded linguistic, temporal, spatial and sequential concepts, including size, location and state, provided verbally or orthographically (e.g., get a green scissor). • [the student] will follow simple two-step directives with embedded linguistic, temporal, spatial and sequential concepts, including size, location and state, provided verbally or orthographically (e.g., get a green scissor and blue glue stick). • [The student] will follow complex two-step directives with embedded linguistic, temporal, spatial and sequential concepts, including size, location and state, provided verbally or orthographically (e.g., before you get the yellow crayon, get the blue crayon). • [The student] will produce noun+verb+direct object sentence structures, using his preferred method of communication, to describe picture cards presented to him, with fading prompts and cues. • [The student] will produce noun+verb+direct object sentence structures, using his preferred method of communication, to share a personal narrative, containing at least 3 grammatically correct and complete sentences, including a beginning, middle, and end, with fading prompts and cues. • [The student] will produce noun+verb+direct object sentence structures, using his preferred method of communication, to retell a short story read aloud to him, containing at least 3 grammatically correct and complete sentences, including a beginning, middle, and end, with fading prompts and cues. • [The student] will produce noun+verb+direct object sentence structures, using his preferred method of communication, to retell a short story read independently, containing at least 3 grammatically correct and complete sentences, including a beginning, middle, and end, with fading prompts and cues. • [The student] will spontaneously use 5-7 word, grammatically correct and complete utterances, using his preferred method of communication (i.e., oral form, written form, Assistive Technology Device) to request (e.g., “I want the blue ball”). • [The student] will spontaneously use 5-7 word, grammatically correct and complete utterances, using his preferred method of communication (i.e., oral form, written form, Assistive Technology Device) to reject (e.g., "I don't want the blue ball"). • [The student] will spontaneously use 5-7 word, grammatically correct and complete utterances, using his preferred method of communication (i.e., oral form, written form, Assistive Technology Device) to comment (e.g., "I like Oreo Cookies"). • [The student] will spontaneously use 5-7 word, grammatically correct and complete utterances, using his preferred method of communication (i.e., oral form, written form, Assistive Technology Device) to obtain information (e.g., "What color is the ball?"). • [The student] will spontaneously use 5-7 word, grammatically correct and complete utterances, using his preferred method of communication (i.e., oral form, written form, Assistive Technology Device) to ask at least 2 questions to a peer and answer at least 2 questions posed by a peer in his speech therapy sessions (e..g, "Do you like the color red?"). • [The student] will be able to share I feel..... and expand as to why he is feeling that way in school. With the help of the prompt- I feel ........ because....... [the student] will be able to expand on how he feels or express his need. • [The student] will be able to share a toy, object or school equipment with peers. (Ex. 8-14-23). The only goal that was met was one counseling goal. (Ex. 8-14-23). Despite the student’s continued classification as a student with autism (Ex. 8-1; 9-1), the 3/16/22 IEP removed the recommendation for PCAT (Ex. 8-26-27; 9-1). On April 4, 2022, the DOE sent Parents a PWN containing the program recommendation for the 2022-23 school year. (Ex. 9-1). According to the PWN, in drafting the 3/16/22 IEP, the CSE considered the same three assessments as the previous year. (Ex. 9-2). ^[13] On September 15, 2022, the DOE sent Parents another PWN and SLL indicating where the student’s 3/16/22 IEP would be implemented (“D75 School1”). (Ex. 10). However, the student was not placed in the D75 School1 and instead attended a different community school at the start of the 2022-23 school year (“Public School3”). (Ex. 1-3; O-1). It is unclear from the record why the student was not placed in accordance with the SLL. At Public School3, the student did not receive any OT sessions and was again placed in a 12:1:1 class. (Ex. 1-3; M; O-1).^[14] Parents were concerned by regression they noticed in the student’s coordination, motor skills, and sensory regulation. (Ex. 1-3; O-2). Parents contacted the district to find a new school that could implement the student’s IEP. (Ex. 1-3; O-2). Upon assurance from the district that another district 75 school (“D75 School2”) would be able to implement the student’s IEP, Parents agreed to transfer him there in March 2023. (Ex. 1-3; O-2). D75 School2 placed the student in a 10:1:1 class (Tr. 100) and did not provide SLT sessions to the student, due to a lack of available therapists. (Ex. 1-3; L; O-2).^[15] Parents were very concerned by the lack of SLT services since the student’s communication skills are one of his greatest areas of need. (Ex. O-3).

The student was due for his comprehensive triennial re-evaluation in the Spring of 2023. (Ex. 1-3). This re-evaluation consisted of a psychoeducational assessment and a vocational assessment, but the latter was not completed in time to be used at the May 1st CSE meeting.^[16] (Ex. 11; 12; 14-2). The psychoeducational assessment consisted of a review of records, clinical interview, teacher report, Test of Nonverbal Intelligence (TONI-4), and Weschler Individual Achievement Test (WIAT-4). (Ex. 11-1). The TONI-4 results indicated that the student’s cognitive functioning was in the average range (39th percentile). (Ex. 11-2). The assessment report indicated that the TONI-4 “results cannot stand alone in either evaluation or planning and cannot diagnose … [and] should be used in combin[ation] with other data (i.e. observation, classroom data, achievement data, etc) in order to provide a holistic picture of the student.” (Ex. 11-2). The evaluation report does not indicate that any of those recommended types of data were gathered as part of the student’s evaluation. (See Ex. 11). The WIAT-4 testing included subtests in word reading, spelling, and numerical operations only. (Ex. 11-3). In word reading and numerical operations the student scored in the average range, and his spelling was below average. (Ex. 11-3). 17 There were no grade-level equivalents noted in the report for any of those areas. (See Ex. 11). Nor was there any explanation for why a student with “average academic achievement skills” was performing several functional levels below his grade. (Id.). The evaluation report indicated that “[f]inal recommendations will be made at the upcoming Educational Planning Conference” (Ex. 11-4), but the IEP contained no reference to the evaluator’s recommendations (Ex. 13). The vocational assessment indicated the student’s functional reading and math levels were “kindergarten-1st grade.” (Ex. 12-1).

The 5/1/23 IEP recommended a continuation of the student’s 8:1+1 program with similar related services, AT, and special transportation as the 3/16/22 IEP. (Ex. 13-16-17). The main changes were a substitution of a health paraprofessional for the behavior paraprofessional,^[18] a switch from individual counseling to all group counseling, an increase in the group size of OT sessions from a group of two to a 17 These results appear vastly different from the student’s performance on the private psychoeducational evaluation in November-December of 2021, which also administered the WISC-V assessment, in addition to the Woodcock-Johnson Test of Achievement, the Behavior Assessment Scales for Children (Parent and Teacher Rating Scales), a psychosocial history, and clinical observations in the home and office. (Ex. D). Based on the amount of time spent in observation, the number of assessments done, and even the number of pages of the reports (22 vs. 4), the 2021 private psychoeducational evaluation was considerably more comprehensive than the DOE’s in April 2023. (Compare Ex. D with Ex. 11). The private psychoeducational determined the student’s intellectual abilities to be in the extremely low range, his verbal comprehension to be in the extremely low range (less than .1st percentile), his visual spatial index to be in the low average range (18th percentile), his fluid reasoning index to be in the low average range (21st percentile), his working memory to be in the extremely low range (less than .1st percentile), and his processing speed to be in the extremely low range (less than .1st percentile). (Ex. D-9-10). In terms of academic functioning, the private psychoeducation found that the student’s overall academic skills were in the 23d percentile, but much lower in terms of academic fluency (less than .1st percentile). (Ex. D-10). His reading skills were found to be greatly varied between tasks (.4th percentile for broad reading, 50th percentile for basic reading skills, 68th percentile for decoding aloud, 40th percentile for sight word recognition, .1st percentile for sentence reading fluency, and .1st percentile for passage comprehension). (Ex. D-11). His performance was similarly varied in math (.1st percentile in broad math, .1st percentile in applied problems, 10th percentile in written calculations, and .1st percentile in math fluency) and writing (.1st percentile in sentence writing fluency and 27th percentile in spelling). (Ex. D-11). group of three, and a switch from all individual SLT sessions^[19] to a mix of half individual and half group. (Compare Ex. 13 with Ex. 8). The total number of weekly sessions for each related service remained the same. (Id.). Even after the switch to group SLT, no sessions were provided. (Ex. 1-3; O-3). The 5/1/23 IEP stated that the student’s instructional level for reading was fourth grade, for language arts was third grade, and for math was fourth grade. (Ex. 13-1). However, it is unclear on what these claims are based since they are contradicted by other evidence in the record and were not contained in the DOE’s psychoeducational evaluation.

The 5/1/23 IEP contained the following annual goals: • Group: Given conversation, opportunity for role-play, modeling and counseling materials, [The student] will engage in appropriate cooperative social play interactions, (turntaking skills and appropriately acknowledge an interaction initiated by others by giving an appropriate response, either verbal or non-verbal) in 4 out of 5 consecutive opportunities with 80% accuracy. • Speech: [The student] will produce a personal narrative including (1) characters, (2) setting, (3) initiating event (4) at least 3 details and (5) conclusion in a logical sequence of events with a cohesive beginning, middle, and end given model, verbal prompts and visual cues in 8 out of 10 trials over 6 consecutively attended speech and language sessions. • Speech: [The student] will maintain a topic for at least 3 conversational turns using a multimodal communication system (words/verbalization, gestures, voice output communication device) by asking partner-focused questions, making comments, and using non-verbal communication strategies given visual cues and therapist or peer models in 8/10 trials across 6 consecutive weeks. • Occupational Therapy (OT): Within one year, [The student] will initiate, and complete designated task presented for 30 minutes [in] 2 out of 3 trials. • Within one year, [The student] will participate in sensory regulatory activities with supervision and integrate effective strategies and breaks interacting with peers throughout the school day [in] 1 out of 3 trials. • In one year, [The student] will read, understand, and solve a onestep word problem involving any operation with at least 70% accuracy. • In one year, [The student] will be able to answer simple WH questions in a complete sentence with proper grammar and punctuation with 85% accuracy in 4 out of 5 trials. • In one year, when given a reading passage on his level, [The student] will be able to answer who, what, where, when and why questions when given at least 3 answer choices with 80% accuracy. (Ex. 13-7-14). It also contained the following short-term benchmarks: • [The student] will be able to appropriately take turns with peers. • [The student] will be able to appropriately acknowledge and respond to peers verbally or non-verbally. • [The student] will engage in appropriate cooperative social play interactions. • Given a familiar picture from a personal experience, [The student] will answer 2-3 WH questions about a personal experience given model and one visual cue in 4/5 opportunities over 6 consecutively attended speech and language sessions. • [The student] will retell a personal experience including character, setting and two details given picture cues and model in 4/5 opportunities over 6 consecutively attended speech and language sessions. • [The student] will retell a personal experience including character, setting, two details and a logical conclusion in 4/5 opportunities over 6 consecutively attended speech and language sessions. • Given written or verbal cues, [The student] will initiate a conversation with a peer, ask a question, and answer a question in 8/10 observed opportunities. • [The student] will ask reciprocal questions of a therapist or peer in 4/5 opportunities across 3 consecutive sessions provided minimal verbal and visual cues. • [The student] will identify how to greet and initiate a conversation with a peer, and will appropriately initiate a conversation with a peer in 3/5 opportunities provided moderate cues. • [The student] will use conversation maintenance strategies (i.e. making comments to perpetuate the conversation, providing turn taking opportunities) in 7/10 opportunities. • [The student] will attend to a in class activity using 1-2 learned sensory strategies with mod verbal and tactile cues. • [The student] will state his class mates names with min. cues. • [The student] will state his class mates names independently. • [The student] will copy his personal information. • [The student] will write his personal information with prompts. • [The student] will engage in the sensory gym/ Seed room with moderate assistance. • [The student] will practice a sensory diet with support as needed throughout the school day. • [The student] will independently advocate and ask for a break as needed. • In 3 months [The student] will read, understand, and solve a one-step word problem involving any operation with at least 50% accuracy. • In 3 months [The student] will read, understand, and solve a one-step word problem involving any operation with at least 60% accuracy. • In 3 months [The student] will read, understand, and solve a one-step word problem involving any operation with at least 70% accuracy. • In three months [The student] will be able to answer simple WH questions in a complete sentence with proper grammar and punctuation with 40% accuracy in 4 out of 5 trials. • In 6 months, [The student] will be able to answer simple WH questions in a complete sentence with proper grammar and punctuation with 60% accuracy in 4 out of 5 trials. • In nine months, [The student] will be able to answer simple WH questions in a complete sentence with proper grammar and punctuation with 80% accuracy in 4 out of 5 trials. • In 3 months , when given a reading passage on his level, [The student] will be able to answer who, what, where, when and why questions when given at least 2 answer choices with 60% accuracy. • In 6 months, when given a reading passage on his level, [The student] will be able to answer who, what, where, when and why questions when given 2 answer choices with 70% accuracy. • In 9 months, when given a reading passage on his level, [The student] will be able to answer who, what, where, when and why questions when given 3 answer choices with 80% accuracy. (Ex. 13-7-14).

Parent testified that they had requested speech-language, ABA, and PT evaluations at the May 1st CSE meeting, but he seemed unsure of the details.^[20] Neither the IEP nor accompanying PWN reflect the Parents’ request for additional evaluations. Parents did not tell the CSE at the May 1st meeting that they were considering placing the student at Private School. (Tr. 88). However, they sent their Ten-Day Letter that same day, notifying the district of their disagreement with the district’s evaluation and concerns with the 5/1/23 IEP (and the district’s continued failure to implement the students’ IEPs). (Ex. H-1). Regarding the evaluation, the letter stated Parents’ belief that the evaluation was insufficient in that it failed to include any assessment of the student’s comprehension skills and did not include a speech-language evaluation or OT evaluation. (Ex. H-1). On May 15, 2023, the DOE sent Parents a PWN regarding the 5/1/23 IEP’s program recommendations. (Ex. 14-1). The letter did not respond to any of the concerns expressed in Parents’ Ten-Day Letter. (Ex. 14). Parent did not request any IEEs prior to filing the DPC. (Tr. 92).

On May 10, 2023, Parents signed an enrollment contract with Private School for the student’s attendance there for the remainder of the 2022-23 school year. (Ex. I; O-3). The contract obligates Parents to pay $19,172 for that portion of the year (that includes a prorated tuition plus $4,565 for the student’s 1:1 paraprofessional). (Ex. I-1, 7; O-3). Parents have been unable to pay the full amount owed to the Private School for the 2022-23 school year. (Ex. O-3-4). So far, Parents have paid $13,500 and still owe $5,672. (Ex. O-4). Private School “is an academic and therapeutic program that provides specialized instruction, related services, and enrichment activities to students aged 3-21 with a variety of learning and language differences.” (Ex. J-1). The school offers a 5.5-hour school day for the 12-month school year. (Ex. J-1). The students’ teachers and service providers there work collaboratively. (Ex. J-1; N-3). Private School also offers AT. (Ex. J-2). They have a behavioral support team that consists of licensed behavior analysts (“LBAs”), board-certified behavior analysts (“BCBAs”), and behavior assistants who work collaboratively and provide support to parents. (Ex. J-5). Each classroom at Private School has a social worker who acts as a liaison between the classroom and home and coordinates parent workshops and support groups. (Ex. J-5). Private School staff are trained in principles of ABA and those methodologies are incorporated into classroom instruction. (Ex. N-2). In April, prior to the student’s enrollment at Private School, he went there, and he met with their OT and SLT providers. (Tr. 50; 86, 89).^[21] The admissions team also reviewed the student’s records, reviewed the Parents’ concerns, and observed the student in the classroom in which they anticipated that he would be placed. (Tr. 48-49, 86). Review of the student’s prior progress reports and IEPs helped Private School determine what functional level to group him with. (Tr. 52).

The student’s schedule at the Private School included “morning meeting,” counseling (twice weekly), independent reading, math, writing, music, social skills (twice weekly), speech (four times weekly), physical fitness, reading, art, “AAC,”^[22] science, 23 OT (thrice weekly), social studies, and health. (Ex. K-1; N-4; Tr. 53).^[24] All the student’s related service providers were New York State licensed in their respective fields. (Ex. N-4). The student’s classroom teacher was Private School Teacher. (Ex. N-3). His class consisted of nine students and three teaching assistants, in addition to Private School Teacher. (Ex. N-3). The student’s class was grouped by academic, social, and behavioral needs as well as age. (Ex. N-4; Tr. 50, 58-59).^[25] After the student transferred to Private School, they conducted formal evaluations for speech and OT. (Tr. 89-90). ^[26] In reading, the student was working on Fountas and Pinnell level H^[27] books, which corresponds to the end of first grade or beginning second grade level. (Ex. N-4; Tr. 55-56). He was provided with rereading, multiple-choice picture supports, scaffolding, teacher-led discussion, small group (group of 4) and 1:1 instruction. (Ex. N-4). In math, they worked on addition, subtraction, multiplication, division, and budgeting. (Ex. N-4). For support in math, Private School provided 1:1 instruction and scaffolding. (Ex. N-4). To address his social skills, they worked on greetings, reciprocal conversations, and community safety. (Ex. N-5). In SLT, the student’s therapist individualized page sets on his AT device, “including visual scene displays.” (Ex. N-6). Generally, the student received frequent prompts, teacher modeling, redirection, timers, positive peer modeling, noise-cancelling headphones, vestibular and proprioceptive input, and movement and sensory breaks. (Ex. N-5; Tr. 61). The student needed his paraprofessional to stay seated and stay on task. (Ex. N-5). According to Private School Teacher, Private School provided the student with “appropriate supports to meet his unique needs across all skill areas.” (Ex. N-6).

LEGAL FRAMEWORK

IDEA

23 The period labelled AAC on the student’s schedule alternated between his AAC session (pushed into the classroom) and science, which was held during that time. (Tr. 53-54).

The IDEA provides that children with disabilities are entitled to a FAPE. 20 U.S.C. §1400(d)(1)(A). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written IEP. 34 C.F.R. §300.13. A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits. Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). To meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2017). A school district must be able to “offer a cogent and responsive explanation for their decisions” in creating the IEP. Id. The IEP must be reviewed at least annually [34 C.F.R. §300.324(b)(1)(i)], and a district must have an IEP in place for each student with a disability within its jurisdiction at the beginning of each school year [8 NYCRR §200.4(e)(1)(ii); Davis v. Wappingers Cent. Sch. Dist., 772 F. Supp. 2d 500, 508 (S.D.N.Y. 2010)]. A district's assignment of a student to a particular school site must be made in conformance with the CSE's educational placement recommendation, and the district is not permitted to deviate from the provisions set forth in the IEP. M.O. v. New York City Dep't of Educ., 793 F.3d 236, 244 (2d Cir. 2015); R.E. v. N.Y.C. Dep’t of Educ., 694 F.3d 167, 191-92 (2d Cir. 2012); T.Y. ex rel. T.Y. v. N.Y.C. Dep’t of Educ., 584 F.3d 412, 419-20 (2d Cir. 2009). A district fails to offer a FAPE if it assigns the student to a school that cannot implement the student’s IEP. T.Y. v. N.Y.C. Dep’t of Educ., 584 F.3d 412, 420 (2d Cir. 2009) (stating that school districts do not have ‘carte blanche’ to assign a child to a school that cannot satisfy the IEP’s requirements).

For procedural violations, a denial of a FAPE only occurs “if the procedural inadequacies- (I) impeded the child’s right to a [FAPE]; (II) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a [FAPE] to the parents’ child; or (III) caused a deprivation of educational benefits.” 20 U.S.C. §1415 (f)(3)(E)(ii); 34 C.F.R. §300.513(a)(2). Failure to implement substantial or significant provisions of an IEP is a denial of a FAPE. J.L. v. New York City Dep't of Educ., 324 F. Supp. 3d 455, 467 (S.D.N.Y. 2018); see also Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 (5th Cir. 2000); Davis v. Wappingers Cent. Sch. Dist., 431 Fed. App. 12, 14 (2d Cir. 2011). The failure to include Parent Training and Counseling in an IEP as required by New York law^[28] is a procedural violation. C.F. ex rel. R.F. v. N.Y.C. Dep’t of Educ., 746 F.3d 68, 80 (2d Cir. 2014).

The IDEA requires that school districts re-evaluate students with disabilities at least once every three years, unless the parent and the district agree that re-evaluation is unnecessary. 34 C.F.R. §300.303(b). Additionally, a district must honor a parent’s request for re-evaluation if one has not occurred within the previous 12 months. M.S. v. Lake Elsinore Unified School District, 69 IDELR 148 (9th Cir. 2017). As part of any re-evaluation, the CSE must review existing evaluative data on the student, including any private evaluations, classroom observations, and observations by teachers and service providers, and then conduct further assessments if necessary. 34 C.F.R. §300.305. The failure to conduct further assessments can result in a denial of a FAPE if more information is needed to develop an appropriate IEP. See, e.g., New Mexico Pub. Educ. Dep’t, 115 LRP 12278 (SEA NM 03/02/15); James

v. Dist. of Columbia, 68 IDELR 11 (D.D.C. 2016). Initial and triennial evaluations must be comprehensive. D.S. by M.S. and R.S. v. Trumbull Bd. of Educ., 975 F.3d 152, 157 (2d Cir. 2020). However, a district does not commit a procedural violation when it fails to conduct testing in all areas of suspected disability if the parents have their own evaluation conducted, the district substitutes the parentally provided evaluation for its own, and the parents participate in the IEP meeting to review the evaluation. See S.B. v. Goshen Cent. Sch. Dist., No. 20-CV-09167 (PMH), 2022 U.S. Dist. LEXIS 164057, at *42-43 (S.D.N.Y. Sep. 12, 2022).

Burdens

In New York, school districts have the burden of proof, including the burdens of persuasion and production, in IDEA due process hearings, except that a parent seeking tuition reimbursement for a unilateral parental placement has the burdens of persuasion and production on the appropriateness of such placement. NYS Educ. Law §4404(1)(c).

Relief

Tuition Reimbursement

A board of education may be required to pay for educational services obtained unilaterally by the child's parent, if (1) the services offered by the board of education were inadequate or inappropriate, (2) the services selected by the parent were appropriate, and (3) equitable considerations support the parent's claim. School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993). These three conditions (prongs) constitute the Burlington/Carter test.

A unilateral placement is appropriate if it is “reasonably calculated to enable the child to receive educational benefits.” Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006); Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir. 2007)(“[Parents] need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.”). Educational progress can be a factor weighing in favor of the appropriateness of a unilateral placement. Frank G., 459 F.3d at 365. To qualify for reimbursement under the IDEA, parents need not show that the unilateral placement is perfect or that it meets all state educational standards. Id. at 364-65; T.K. v. New York City Dept. of Educ., 810 F.3d 869, 878 (2d Cir. 2016); M.S. v. Yonkers Bd. of Educ., 231 F.3d 96, 105 (2d Cir. 2000).

Under Burlington/Carter, if the parents are financially obligated to pay for the contracted services and have met their prong two burden, the contract must be fully reimbursed or directly funded by the district unless, as a matter of equitable considerations, the costs are excessive or should otherwise be reduced. See Carter, 510 U.S. at 16 (“Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable”); J.S. v. Scarsdale Union Free Sch. Dist., 826 F.Supp.2d 635, 671 (S.D.N.Y. 2011) (“[T]his Court has broad discretion to consider the range of all relevant facts in determining whether and to what extent awarding relief is equitable.”).

Even if a parent establishes a right to reimbursement under the IDEA, "courts retain discretion to reduce the amount of a reimbursement award if the equities so warrant." Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 246-47, 129 S. Ct. 2484, 174 L. Ed. 2d 168 (2009). In making that equitable determination, a hearing officer may consider many factors, including whether a parent’s unilateral withdrawal of the child from the public school was justified, whether the parent provided the Department with adequate notice of the withdrawal, whether the amount of private-school tuition was reasonable, whether the parent should have availed themself of need-based scholarships or other financial aid from the private school, whether there was any fraud or collusion in generating (or inflating) the tuition to be charged to the Department, and whether the arrangement with the school was fraudulent or collusive in any other respect. E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014).

Compensatory Education

An IHO generally has broad authority to fashion appropriate equitable relief. See Mr. and Mrs. A v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 422-23, 427-30 (S.D.N.Y. 2011); Forest Grove v. T.A., 129 S.Ct. 2484 (2009). “[C]ompensatory education is a retrospective and in-kind remedy for failure to provide an appropriate education for a period of time.” VW v. N.Y.C. Dep’t of Educ., 2022 U.S. Dist. LEXIS 147630, at *15 (S.D.N.Y. Aug. 17, 2022) citing P.P. v. West Chester Area Sch. Dist., 585 F.3d 727, 740 (3d Cir. 2012). The DOE has the burden of proof on the issue of compensatory education. See M.M. v. New York City Dept. of Educ., 2017 WL 1194685 at *4 (S.D.N.Y. 2017); Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 457 (2d Cir. 2015); Reid ex rel. Reid v. Dist. of Columbia, 401 F.3d 516, 524 (D.C. Ct. of App. 2005); Application of Student with a Disability, Appeal No. 21-169. However, just because the DOE does not submit a case does not mean the parent is necessarily entitled to their full requested compensatory remedy. See M.M., 2017 WL 1194685, at *8; Branham v. Govt. of the Dist. Of Columbia, 427 F.3d 7, 11-12 (D.C. Cir. 2005); Application of Student with a Disability, Appeal Nos. 23-028; 21-213 (both stating that default judgment is a disfavored outcome).

Requested compensatory hours may be limited if the need for them is inadequately supported by the record, would lead to diminishing returns, or could overwhelm the student. See M.M., 2017 WL 1194685, at *8 (“[c]ommon sense and experience teaches that services that may be valuable for, or even critical to, a child’s educational achievement when provided in small to moderate amounts may become useless, or even burdensome, if provided in overwhelming quantity.”); Application of Student with a Disability, Appeal No. 21-213 (“While the district failed to present evidence or its view of an appropriate compensatory education award, the IHO was not required to award all of the relief that the parents sought. Such an outright default judgment awarding compensatory education-or as in this case, any and all of the relief requested without question-is a disfavored outcome even where the district's conduct in denying the student a FAPE and in failing to actively participate in the impartial hearing process is egregious.”) citing Branham v. Govt. of the Dist. of Columbia, 427 F.3d 7, 11-12 (D.C. Cir.

2005) and M.M., supra. The IDEA allows awards of compensatory services and tuition in the same year. VW v. N.Y.C. Dep’t of Educ., 2022 U.S. Dist. LEXIS 147630, at *14 (S.D.N.Y. Aug. 17, 2022) citing Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 445 (2d Cir. 2015) (concluding that “appropriate equitable relief” can include “reimbursement or compensatory education (or both) for the full value of services that the educational agency was required to fund”). In Application of a Student Suspected of Having a Disability, Appeal No. 23-026, the SRO found that a combination of reimbursement and compensatory education was appropriate where the parent’s unilaterally obtained reading instruction was appropriate but insufficient to remedy the denial of a FAPE.

Independent Educational Evaluations (IEEs)

An IEE is “an individual evaluation of a student with a disability or a student thought to have a disability, conducted by a qualified examiner who is not employed by the public agency responsible for the education of the student.” 8 NYCRR §200.1(z). The IDEA and State and federal regulations allow a parent to request an IEE at public expense if the parent disagrees with a school district’s evaluation. 20 U.S.C. §1415 (b)(1); 34 C.F.R. §300.502(b); 8 NYCRR §200.5(g)(1); Trumbull, 975 F.3d at 158 (“[a] parent is entitled to a publicly funded IEE if the parent disagrees with an evaluation obtained by the public agency”) (internal quotation marks and citations omitted). Because the parent has a right to an IEE at public expense, upon request, the district must, without unnecessary delay, either: 1) file a due process complaint to request a hearing to show that its evaluation is appropriate [34 C.F.R. §300.502(b)(2)(i)]; or, 2) ensure that an IEE is provided at public expense, unless they demonstrate in a hearing that the evaluation obtained by the parent did not meet the district's criteria [34 C.F.R. §300.502(b)(2)(ii)]. See also 8 N.Y.C.R.R. §200.5(g)(iv). A parent’s right to an IEE at public expense may not be conditioned on the school district’s ability to first conduct its own assessment before granting the parent’s request for an independent IEE. Letter to Carroll, 68 IDELR 279 (OSEP 2016). The parents need not provide prior notification of their disagreement or even the areas of their disagreement, although the district can ask. 34 C.F.R. §300.502(b)(4); see also Letter to Zimberlin, 34 IDELR 150 (OSEP 2000); Letter to Lenz, 37 IDELR 95 (OSEP 2002); Letter to Dowaliby, 38 IDELR 14 (OSEP 2002).

Furthermore, a parent is entitled to an IEE when the district does not conduct a sufficiently comprehensive evaluation or fails to test the student in an area of need. Trumbull, 975 F.3d at 165; Letter to Baus, 65 IDELR 81 (OSEP 2015); Letter to Carroll, 68 IDELR 279 (OSEP 2016). In Trumbull, the court stated that, “[n]othing in the statute or regulations suggests that a parent cannot challenge an evaluation on the ground that it was too limited. To the contrary, because the IDEA requires an evaluation to be comprehensive, one would expect that a parent is free to disagree with an evaluation based on its deficient scope.” 975 F.3d at 165. However, a parent’s disagreement with one assessment does not necessarily constitute disagreement with the evaluation process which would entitle them to an IEE. See Trumbull, 975 F.3d at 77 (reasoning that under the IDEA there are only two types of evaluations, initial evaluations and reevaluations, and that an FBA is neither because it lacks the comprehensiveness the IDEA requires); see also Letter to Fisher, 23 IDELR 565 (OSEP 1995)(“A parent may be entitled to an IEE at public expense if the district did not assess the student’s functional capabilities as they relate to the need of assistive technology or the parent disagrees with the school district’s evaluation in that area. A parent can also request that the school district conduct a reevaluation of the student’s need for assistive technology”).

There is conflicting case law regarding whether it is appropriate for the parent to first request an IEE in a DPC. Past SRO decisions have held that a parent may request a district funded IEE in a due process complaint notice in the first instance. See Application of a Student with a Disability, Appeal No. 19-094. However, more recent cases have held that “this is not the process contemplated by the IDEA and its implementing regulations.” Application of the Board of Educ, Appeal No. 23-034, citing 34 C.F.R. §300.502(b); 8 N.Y.C.R.R. §200.5(g)(1); Application of a Student with a Disability, Appeal No. 23-096; 23-081 (upholding IHO denial of IEE where parent had not previously attempted to raise any disagreement over evaluations with the district prior to the DPC, and “more likely included the request for an IEE as an afterthought”); 23-102 (“The process envisions that a district has an opportunity to engage with the parent on the request for an IEE at public expense outside of due process litigation, and if a delay should occur as a result, one of the fact-specific inquiries to be addressed is whether the IEE at public expense should be granted because the district's delay in filing for due process was unnecessary under the circumstances”). Delaying an IEE request until the DPC “as a means to obtain evidence to support other claims against the district rather than as a means to understand the student's needs” “is an improper use of the due process procedures.” Application of the Board of Educ, Appeal No. 23-034; see also Application of a Student with a Disability, Appeal Nos. 22-150; 21-170; Application of the Dep’t of Educ., Appeal No. 22-121.

Statute of Limitations (SOL)

The statute of limitations (“SOL”) for IDEA cases in New York is two years. 20 U.S.C. §1415(b)(6)(B); 34 C.F.R. §300.507(a)(2); 8 N.Y.C.R.R. §200.5(j)(1)(i). Only such claims of which plaintiff knew or should have known (“KOSHK”) within the statutory limit are timely. Id.; see also Scaggs v. New York State Dep’t of Educ., 2007 U.S. Dist. LEXIS 35860, *36-37 (E.D.N.Y. 2007) (the Second Circuit disfavors the “continuing violation” doctrine, and only applies it in compelling circumstances). However, the continuing violations that occurred within the statutory time limit are “discrete, actionable offenses that are not time-barred.” Id.

Once the KOSHK date is established, the claim is ripe for judicial adjudication and the SOL begins to accrue from that date. Once the school district has raised a SOL defense to a claim, the burden shifts to the Parents to demonstrate that any exception to the SOL applies. See D.K. v. Abington Sch. Dist., 696 F.3d 233, 245-46 (3d Cir. 2012); J.L. v. Ambridge Area Sch. Dist., 2008 U.S. Dist. LEXIS 54904, 2008 WL 2798306 at *29-30 (W.D. Pa. July 18, 2008); Bd. of Educ. of N. Rockland Cent. School Dist., 744 Fed Appx at 10 n.1. (S.D.N.Y. 2017).

ANALYSIS AND CONCLUSIONS OF LAW

2021-22 School Year

The student’s eligibility for special education and disability classification are not in dispute here. The DOE has the burdens of production and persuasion as to the provision of a FAPE. The DOE has argued that Parents’ claims for this school year are time-barred because the IEP for the 2021-22 school year was developed on March 11, 2021, and the PWN was sent advising Parents of the recommended program on June 1, 2023, both of which were more than two years before the DPC was filed. I agree in part and disagree in part. As to claims about the substantive appropriateness of the IEP’s recommended program and services, the district is correct. The Parent knew or should have known of those issues if not at the CSE meeting, then at least at the time they received the PWN of the recommended program. Thus, claims regarding a lack of sufficient PCAT, a lack of a BIP or sufficient behavioral supports, and vague or immeasurable annual goals are time-barred here.

However, that is not the end of the inquiry because there is also a claim regarding the failure to implement the IEP, which did not accrue until later. The PWN notifying of the school location where the IEP would be implemented was not sent until July 7, 2021. There is no way that Parent knew or should have known that the recommended school would be unable to implement the 8:1:1 special class from the student’s IEP until after they received the SLL. It was only after that date that they would have learned that there was no available 8:1:1 class and that the student would be placed in a 12:1:1 class instead. Accordingly, the claim regarding the implementation of the IEP did not accrue until at least July 7, 2021, which is less than two years before the filing of the DPC. Additionally, that claim would constitute a continuing violation. Either way, the implementation claim is timely.

At hearing, the DOE did not dispute the Parents’ allegation that the district failed to implement the student’s mandated 8:1:1 special class, nor did they provide any evidence to contradict it. It is clearly established law that the district must assign a student to a school that can implement the student’s IEP, as written, and are not allowed to unilaterally modify or substitute a different program due to lack of availability.^[29] Additionally, it is settled law that failure to implement substantial portions of a student’s IEP is a deprivation of a FAPE.^[30] Moreover, the district has the burden of proof on the provision of a FAPE and they have not even attempted to show that the student’s IEP was appropriately implemented for this school year. Accordingly, the district has not met its burden and I find that the student was denied a FAPE for the 2021-22 school year.

2022-23 School Year

Prong 1

As to prong one of the Burlington/Carter standard for the 2022-23 school year, the DOE failed to meet its burden at the hearing. The DOE presented no witnesses to dispute the Parents’ claims, nor did they make any substantive arguments in their opening or closing statements regarding the alleged substantive deficiencies of the relevant IEPs.^[31] Furthermore, the DOE presented no cogent or responsive explanation for the decisions made in the IEPs.^[32] Moreover, DOE representative did not dispute that the student’s mandated 8:1:1 class was never provided during the 2022-23 school year, or that the student’s related services of OT and SLT were not fully implemented. Nor did the DOE attempt to provide testimony or service records to show that the mandated services were provided. For all these reasons, the DOE did not sustain its burden and I find that they failed to offer the student a FAPE for the 2022-23 school year.

Prong 2

I find that the Parents have met their burden in proving that the Private School offered an educational program which met the student’s needs under prong two of the Burlington/Carter standard. Here, the weight of the evidence established that the student’s individual special education needs were addressed by the Private School and that the instruction offered was "reasonably calculated to enable the child to receive educational benefits." Frank G., 459 F.3d at 364. The program provided by the Private School was consistent with the recommendations of the student’s evaluations. Although the DOE argued at the hearing that the placement was inappropriate, the only specific deficiency mentioned was the fact that the student’s class at Private School had nine students, which was more than the 8:1:1 program that the CSE recommended. However, a class of nine students was still smaller than the 10:1:1 class that the student was in when he transferred to Private School. Additionally, the student’s Private School class was a 9:1+3 class, which is a significantly smaller student-teacher ratio than was recommended or implemented by the DOE. The Private School’s small class sizes, accommodations, and supports were designed to enable the student to make educational progress. The intake process and assessments done by the Private School, in combination with the ongoing collaboration between the student’s teachers and service providers, ensured that his program was designed to meet his unique needs. Moreover, I find that the Parents’ witnesses were credible, and that the student’s program was offered by appropriately qualified individuals. While it would be better to have objective evidence of progress in the record, progress is only one factor in assessing appropriateness and is not required. That is especially true here, where the student was in the program for little more than a month and would not have had sufficient time to make great strides. Based on the record before me, I find that Parents met their prong two burden.

Prong 3

The equities here favor the Parents. The DOE repeatedly failed to implement the student’s IEPs, both in terms of his recommended class and his related services. Parents provided the necessary Ten-Day Notice of their intention to unilaterally place the student at the Private School in the Spring of the 2022-23 school year. Although the DOE argued that Parents should have notified the DOE of the potential unilateral placement at the student’s May 1, 2023, CSE meeting, they sent written notice the same day as the meeting, so the DOE is making a distinction without a difference. Furthermore, the relevant regulations provide that notice can be given either at the most recent CSE meeting, or ten business days before the student is withdrawn from the public program.^[33] Parent provided Ten-Day Notice on May 1st and the student did not begin attending the Private School until May 19th, more than ten business days later. So, Parents’ notice complied with the statutory requirements.

Although the DOE argued that the cost of the Private School program was “exorbitant,” they did not provide any evidence of market rates or the rates of comparable programs. Accordingly, I find no evidence in the record that the cost of the program was objectively unreasonable.

Finally, the DOE argued that the Parents’ late placement of the student in the Private School is a fact which should weigh against them in terms of the equities. I disagree. To the contrary, I believe it shows that they went out of their way to try to keep the student in public school and give the DOE time to offer an appropriate program. They even switched the student to a new public school mid-year, at the DOE’s suggestion, in the hopes that the new school would be better able to implement the IEP, only to be disappointed again when the student’s 8:1:1 class and related services still were not provided in accordance with the IEP. I find nothing unreasonable about the Parents’ actions in placing the student at Private School for the end of the school year at issue. Furthermore, I find that Parents fully cooperated with the DOE, participated in the relevant CSE meetings, and made the student available for evaluations. The record contains evidence of the Parents’ financial obligation to pay the private school tuition and costs in full. The DOE has not alleged that the enrollment contract was fraudulent in any way. Moreover, the Parents have been financially unable to pay the Private School in full. Accordingly, equity demands that the DOE fund the student’s Private School prorated tuition and costs (through a combination of reimbursement and direct payment) for his attendance during the 2022-23 school year.

Additional Relief

In addition to funding for the student’s attendance at the Private School from May 19 through the end of the 2022-23 school year, Parents are also seeking compensatory SLT and OT sessions to make up for what was missed prior to the student’s transfer to the Private School. The DOE did not address or dispute this request at the hearing. Parent has requested 54 hours of compensatory OT (3x30x36 weeks of deprivation) and 18 hours of compensatory SLT (4x30x9 weeks of deprivation). Their requests are an estimated quantitative equivalent to what the student should have received, based on the IEPs, but didn’t. Accordingly, I find it appropriate to order compensatory services. However, instead of ordering the estimated amounts, I find it more appropriate for the DOE to review service records and provide the exact number of sessions that the student missed. These compensatory sessions should be implemented at a provider of the Parents’ choosing, at a reasonable market rate. There has been no request for an extended time to use them, and the period of deprivation lasted the majority of one school year, so I find it appropriate that these sessions be used within one year of the date of this Order.

IEEs

As for evaluations, Parents have disagreed with the DOE’s most recent evaluation, which took place prior to the May 1, 2023, CSE meeting. This was the student’s triennial re-evaluation. The evaluation consisted mainly of a psychoeducational assessment on April 19th. In their Ten-Day Letter on May 1, 2023, Parent notified the district of their disagreement with the district’s evaluation. Specifically, the letter stated Parents’ belief that the evaluation was insufficient in that it failed to include any assessment of the student’s comprehension skills and did not include a speech-language evaluation or OT evaluation.

Apart from the statements in the Ten-Day Letter, it is unclear from the record what, if any, request Parent made for additional evaluations prior to the DPC’s IEE request. As noted previously, while Parent testified that they had requested speech-language, ABA, and PT evaluations at the May 1st CSE meeting, he seemed unsure, and no evaluation request was reflected in the IEP or PWN. According to Parent’s testimony, he did not request IEEs prior to filing the DPC.

Parents are now requesting a number of IEEs.^[34] At hearing, the DOE argued that the AT evaluation from 2021 and SLT and OT evaluations of the Private School should obviate the need for IEEs in those areas. DOE Representative also argued (citing Application of a Student with a Disability, Appeal No. 23-096) that it is inappropriate to request an IEE for the first time in a DPC.

Although I acknowledge the trend of recent State-level review cases to deny IEEs like this (requested in the first instance in a DPC), I find sufficient reason under the facts of this case to deviate from that trend. Here, although there was no prior request for IEEs, there was a prior notice of the Parents’ disagreement with the sufficiency of the student’s triennial re-evaluation. There may also have been a prior request for additional district evaluations. The DOE has provided no evidence to show that it addressed the Parents’ concerns in any way or attempted to conduct additional assessments. In light of the fact that Parents raised the sufficiency of the district’s evaluation in their Ten-Day Notice, here I do not find that they have included the IEE requests merely as an afterthought.^[35] Nor do I find, based on the record, that Parents included such a request “as a means to obtain evidence to support other claims against the district rather than as a means to understand the student’s needs.”^[36] Here, the district had the opportunity to address the Parents’ concerns, both prior to the filing of the DPC and after (during the resolution process), and they failed to do so. Especially considering the vastly disparate information in the record regarding the student’s levels of functioning, a comprehensive set of independent evaluations is warranted. For these reasons, I find that it is appropriate to grant most of the requested IEEs.

However, I do not find that all of the requested IEEs are warranted here. Parent has already gotten independent speech-language and OT evaluations, through Private School. Parent testified that the cost of those evaluations was included in the tuition. Since funding for tuition is ordered herein, those evaluations were conducted at public expense. Accordingly, there is no need to order those to be duplicated. If Parents wish for the DOE to conduct additional evaluations in those areas, they can make that request of the district. Because all the other requested IEEs correspond to an area of suspected need for the student, the triennial re-evaluation was far from comprehensive, the district did not respond appropriately to the IEE requests by either granting the IEEs or initiating due process proceedings, and the district did not provide any witnesses at the hearing to defend the sufficiency of the disputed evaluation, the rest of the requested IEEs should be granted.

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 of the Parents’ remaining claims not discussed herein are dismissed with prejudice.

ORDER

Based upon the above Findings of Fact and Conclusions of Law, it is hereby ORDERED THAT:

1. Parents’ claim for payment of tuition and costs for the student's unilateral placement at the Private School is GRANTED for the 2022-23 school year as follows: The New York City Department of Education shall fund the student’s tuition and costs at the Private School for the 2022-23 school year (up to $19,172) by providing a combination of reimbursement to Parents and direct payment to the Private School. First, Parents should be reimbursed for any payments made, upon receipt of proof of payment. Then, the balance shall be paid directly to the Private School upon receipt of invoices for the student’s attendance during the specified period; it is further

2. ORDERED that the New York City Department of Education shall review service records and determine how many SLT and OT sessions the student was owed (during the 2022-23 12-month school year prior to May 19, 2023) but did not receive. All SLT and OT sessions that were mandated but not provided to the student during that time shall be provided as a bank of compensatory services, to be implemented at a provider of the Parents’ choosing, at a reasonable market rate. All compensatory sessions shall expire one year from the date of this Order; and it is further

3. ORDERED that the New York City Department of Education shall provide funding for the following IEEs:

• Neuropsychological Evaluation (at a rate up to $6,000) • AT Evaluation (at a rate up to $3,000) • PT Evaluation (at a rate up to $2,500) • Applied Behavior Analysis (“ABA”) Skills Assessment (at a rate up to $4,950) • Functional Behavior Assessment (“FBA”) (at a rate up to $4,125) Payment shall be made directly to appropriately qualified providers of the Parents’ choosing upon receipt of corresponding invoices.

SO ORDERED.

DATED: August 31, 2023 Leah Martin, Esq. (Signed Electronically)_

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public-School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.

APPENDIX A – DOCUMENTATION ENTERED INTO THE RECORD

DOE’S EXHIBITS

1. Request for Impartial Hearing 6/21/23 8 pages DOE

2. IEP 3/11/21 43 pages DOE

3. PWN 6/1/21 9 pages DOE

4. PWN/SLL 7/7/21 11 pages DOE

5. Speech-Language Referral 8/3/23 1 page DOE

6. Center For AT Attendance 10/7/21 1 page DOE

7. AT Training and Implementation Report 10/7/21 6 pages DOE

8. IEP 3/16/22 35 pages DOE

9. PWN 4/4/22 11 pages DOE

10. PWN/SLL 9/15/22 13 pages DOE

11. Psychoeducational Report 4/19/23 4 pages DOE

12. Vocational Assessment, Student Interview undated 4 pages DOE

13. IEP 5/1/23 26 pages DOE

14. PWN 5/15/23 11 pages DOE

15. Occupational and Physical Therapy Clinical Guide 5/25/23 1 page DOE

PARENT EXHIBITS

B. DOE’s Due Process Response 7/5/23 3 pages

D. Private Psychoeducational Evaluation 2/18/22 22 pages

H. Ten-Day Notice Letter 5/1/23 3 pages

I. Private School Enrollment Contract 5/11/23 7 pages

J. Private School Program Description Undated 5 pages

K. Student Schedule Undated 1 page

L. Related Service Authorization Form (SLT) 2022-23 5 pages

M. Related Service Authorization Form (OT) 11/17/22 3 pages

N. Private School Teacher Testimony Affidavit 8/8/23 6 pages

O. Parent Testimony Affidavit 8/10/23 4 pages

IHO’S EXHIBITS

- - - -

Footnotes

[2] Exhibits shall be referred to as follows: Ex. followed by lettered designations for Parents’ Exhibits, numbered designations for DOE’s Exhibits, and lower-case roman numeral designations for Impartial Hearing Officer’s Exhibits. Exhibit designations will be followed by the page numbers as needed and appropriate. For example, Parents’ Exhibit A, page 1, will be referred to as (Ex. A-1).

[3] A complete list of hearing exhibits is attached hereto as “APPENDIX A – DOCUMENTATION ENTERED INTO THE RECORD.”

[4] She has a bachelor’s degree in Inclusive Elementary and Special Education, a master’s degree in Professional Certification in Childhood Special Education – Learning Disabilities, and is New York State certified to teach students with disabilities and elementary education, grades one through six. (Ex. N-1).

[5] At least one parent was present at the meeting. (Ex. 2-43). Although the attendance page is missing from the IEP in evidence, the document reflects Parents’ concerns that were expressed at the meeting, thus demonstrating their participation. (Id.).

[6] The student’s mother was present at the meeting. (Ex. 8-35).

[7] Parents were present at the CSE meeting. (Ex. 13-1, 26).

[8] The facts contained in the “Introduction and Procedural History” and “Background” sections above are incorporated here as well.

[13] Despite not being listed on the PWN, the IEP contained results from formal teacher assessments (Words their Way Study and BADER Math Assessments and Teacher’s College Writing Benchmarks for 5th Grade from September 2021, and MAP Growth Assessment and Acadience 5th Grade Benchmark Screener from January 2022). (Ex. 8-1).

[14] In November, the DOE sent Parents a related service authorization form to find their own OT provider (Ex. M), but Parents were unable to find available therapists in their borough. (Ex. O-1-2).

[15] In April, the DOE sent Parents a related service authorization form to find their own SLT provider. (Ex. L; O-3).

[16] While the PWN for the 5/1/23 IEP also lists a May 25th vocational assessment, that was not conducted until after the CSE meeting. The vocational assessment report is undated (Ex. 12), but I will credit the date listed on the PWN. Accordingly, as it was conducted after May 1st, the vocational assessment clearly was not considered by the CSE at the May 1st meeting. The IEP also mentions a speech and language assessment on March 28 and an “IPR” on May 1st. (Ex. 13-1). However, it is unclear what an “IPR” is and neither of those assessments are included in the record here. As the DOE has the burdens of production and persuasion on the sufficiency of their evaluations, I will only credit what appears in the record.

[18] There is no explanation for this change on the face of the IEP. (See Ex. 13). Under the mandate for the health paraprofessional, it says “See Attached Doctors note” but none was attached. (Ex. 13-17). Behaviorally, the private psychoeducational found the student to be in the “at-risk” or “clinically significant” ranges for hyperactivity, depression, withdrawal, atypicality, attention problems, adaptive skills, social skills, leadership skills, functional communication, and activities of daily living. (Ex. D-12-13). The private psychoeducational recommended a small class in a small school with similarly functioning peers, consistent small group and individual support with close supervision and providers trained in neurodevelopmental challenges and sensory processing and integration. (Ex. D-16-17). It also recommended a continuation of the same SLT mandate, an increase in the OT mandate, psychotherapy, “frequent and regularly-occurring individualized and/or group” PCAT, and reevaluation in one year. (Ex. D-18-19).

[19] This switch was not made based on the student’s needs but rather because the district thought that group sessions would be easier to staff. (Ex. 1-3; O-3).

[20] When asked what evaluations were requested at the CSE meeting, Parent answered “[l]ike I said, we requested for a speech, a speech evaluation, the occupational therapy evaluation – no, well, no, the occupational therapy, they already had – the behavior evaluation. And also, at that time, we asked them for a physical therapy evaluation just because he’s regressing so much. He’s regressed so much on OT that we feel that he needs physical therapy to supplement the occupational therapy…” (Tr. 91). In response to a clarifying question, he replied that speech, ABA, and PT were the evaluations requested at the CSE meeting. (Tr. 92). But he was speaking over the question at the time, so it is unclear whether he heard the whole thing and answered accurately. (Tr. 92).

[21] No formal assessments were done at that time. (Tr. 50; 89).

[22] This stands for Augmentative and Alternative Communication. (Ex. N-3). This weekly session was dedicated to training for the student’s AT device. (Ex. N-4).

[24] The student’s related services were provided in accordance with his IEP. (Tr. 52). Sessions were generally pull-out. (Tr. 52-53).

[25] The students generally range from ages 10-12 and functional grade levels of second through fourth, depending on the subject. (Tr. 50-51).

[26] The cost of these evaluations was included in the Private School tuition. (Tr. 90). There is no indication in the record that the results were provided to the DOE, and the evaluation results are not in the record.

[27] Private School Teacher conducted an assessment in May to determine the student’s level. (Tr. 55). Teacher-created writing and math assessments were also done around that time (Tr. 58), but the results do not appear in evidence.

[28] PCAT is required for parents of students with autism. 8 N.Y.C.R.R. §200.13(d).

[29] M.O., 793 F.3d at 244; R.E., 694 F.3d at 191-92; T.Y., 584 F.3d at 419-20.

[30] J.L., 324 F. Supp. 3d at 467; Bobby R., 200 F.3d at 349; Davis, 431 Fed. App. at 14.

[31] During opening, the DOE Representative said only that he “will rest on the documents, that FAPE was provided.” (Tr. 70). During closing arguments, he said only that “we are resting on the documents to show that FAPE was provided. The IEP teams were – and recommendations we do believe were appropriate for the student.” (Tr. 95-96).

[32] Although I do not find that the goals were vague and immeasurable, nor would I find a denial of a FAPE on that basis, the rest of the Parents’ allegations remain uncontroverted and the DOE has not given any explanation for the lack of PCAT, lack of BIP, or the change from a behavioral to a health paraprofessional.

[33] See 34 C.F.R. §300.148.

[34] Although Parents contracted a private psychoeducational evaluation in the fall of 2021, that was not provided to the DOE and was not provided at public expense, so does not effect this analysis. Additionally, that evaluation recommended re-evaluation in one year, which would have been the fall of 2022.

[35] See Application of a Student with a Disability, Appeal No. 23-081.

[36] See Application of the Board of Educ, Appeal No. 23-034.