New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 251006

Student's Name: [REDACTED]

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Requested By: Parent

Date of Hearing: 07/21/2023 Pendency Hearing

09/11/2023

09/12/2023

Actual Record Close Date: 09/19/2023

Decision Date: 09/20/2023

Hearing Officer: Daniel Ajello Esq. Hearing Officer‘s Finding of Fact & Decision

NAMES AND TITLES OF PERSONS WHO APPEARED ON 07/21/2023

(All Parties Appeared Via Teleconference)

[REDACTED], Attorney — Student

[REDACTED], Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON 09/11/2023

(All present by video or telephone)

[REDACTED], Attorney — Student

None — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON 09/12/2023

(All present by video or telephone)

[REDACTED], Attorney — Student

[REDACTED], — Parents

None — DOE

Hearing Officer‘s Finding of Fact & Decision — DOE

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

Ex Description Date Page(s) Entered 07/21/2023 A Impartial Hearing Request / Due Process Complaint (DPC) 07/05/2023 19 B Findings of Fact and Decision (FOFD) Case 229521 11/14/2022 30 Entered 09/11/2023

C EXCLUDED DUPLICATE

D Findings of Fact and Decision (FOFD) Case 211876 07/28/2022 52 E Independent Speech Language Evaluation 02/09/2022 17 F Independent Occupational Therapy Evaluation 03/13/2022 18 G Committee on Pre-School Special Education (CPSE)

Initial Speech Language Evaluation 02/28/2019 4 H Final Notice of Recommendation (FNR) 09/04/2020 1 I [REDACTED] Special Education Itinerant Teacher (SEIT)

Quarterly Progress Report 11/15/2020 - 11/24/2020 4 J Early Intervention Occupational Therapy (OT) Summary Undated 1 K Early Intervention Speech Language Therapy (SLT)

Progress Report 06/05/2019 1 L Early Intervention Special Instruction Progress Report 06/04/2019 1 M CPSE Initial Psychological Evaluation 02/25/2019 5 N Independent Neuropsychological Evaluation Report 1/24/22 - 5/23/22 18 O Independent Occupational Therapy (OT) Evaluation 6/9/22 19 P CPSE Initial Occupational Therapy (OT) Evaluation 03/08/2019 3 Q CPSE Initial Physical Therapy (PT) Evaluation 02/26/2019 3 R CPSE Educational Evaluation 02/28/2019 5 S DOE Social History Assessment 06/21/2022 2 T SEIT Progress Report 06/28/2022 4 U Occupational Therapy (OT) Progress Report 02/14/2022 11 Hearing Officer‘s Finding of Fact & Decision Parent Exhibits Continued: Ex Description Date Page(s) Entered 09/11/2023 V Physical Therapy (PT) Progress Report 06/21/2022 1 W SEIT Progress Report 01/12/2023 3 X Amended Impartial Hearing Request / ADPC 07/31/2023 21 Entered 09/12/2023 Y Affidavit of Dr. [REDACTED], Psy.D. 09/11/2023 11 Z Parent Email to NYC DOE 05/16/2023 3

DEPARTMENT OF EDUCATION (DOE)

None

IMPARTIAL HEARING OFFICER

Entered 07/21/2023 I Notice of Appointment, 07/11/2023, 4 pages II Teleconference Notice, 07/11/2023, 1 page III Proposed Pendency Order, undated, 1 page Entered 09/11/2023 IV Pendency Order, 07/21/2023, 7 pages V Notice of Appearance, 07/31/2023, 1 page Hearing Officer‘s Finding of Fact & Decision

INTRODUCTION

On 07/11/2023, I was appointed the Impartial Hearing Officer (“IHO”) by the Department of Education’s Impartial Hearing Office to conduct an impartial hearing pursuant to the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f) and Article 89 of the Education Law of the State of New York.

Parent requested a determination of the Student’s Pendency during the proceedings. (Ex A 2)

Hearing to determine Student Pendency was held on 07/11/2023, and Order issued. (IHO Ex IV)

Pendency Order found that Pendency placement exists in the Findings of Fact and Decision (FOFD) in Case No. 229521, of 11/14/2022, which contained services to be delivered for an Extended 12 Month School Year, via Parent chosen provider(s), funded by the DOE at reasonable market rate:

1. 30 hours per week of push in individual (1:1) Special Education Itinerant Teacher (SEIT)

services into a general education classroom;

2. Speech Language Therapy (SLT) 3x30 minutes per week, 1:1;

3. Speech Language Therapy (SLT) 2x30 minutes per week, 3:1;

4. Occupational Therapy (OT) 3x45, 1:1;

5. Behavioral Parent Training 1x60 minutes per week; and

6. Physical Therapy (PT) 3x30 minutes per week. (Ex B 24, IHO Ex III 6)

Appended to the record are lists of persons in attendance and the documents received in evidence.

Hearing commenced, on 09/11/2023, to allow an opportunity for the DOE to defend against the allegations contained in the Amended Due Process Complaint (ADPC). (Ex X)

Ultimately, the DOE did not avail itself of the opportunity to defend against the allegations contained in the ADPC.

Hearing continued, and concluded, on 09/12/2023.

Amended Due Process Complaint (ADPC) relates to the 23/24 School Year. (Ex Hearing Officer‘s Finding of Fact & Decision X)

Allegations applicable to the issues addressed herein, include:

- For the 2023-2024 School Year (SY at Issue), the DOE failed to: (a) provide a free appropriate public education (FAPE) to the Student; (b) thoroughly and appropriately evaluate the Student on a timely basis; (c) create legally appropriate

IEP(s) and placement(s); and (d) follow the procedural requirements of the IDEA.

(Ex A 1);

- IEP meeting was held, on 05/17/2023 (Ex X 11);

- Educational history of the Student, outlining challenges, special education services, evaluations, and IEP meetings, as well as history of prior Hearings (Ex A

1-11);

- For the 23-24 school year, Parent alleges an appropriate IEP has not been developed, due in part, to the failure of the DOE to consider recommendations made in disclosed evaluations and reports, resulting in an IEP without necessary

Student services, including SEIT and proper related service mandates (Ex X 11-

12); and

- Additional allegations relating to procedures and systems of the DOE, which are not addressed herein. (Ex X 15-16)

Parent presently seeks relief to remedy the alleged failure, including:

- A finding that the DOE denied the Student a FAPE, for the 23-24 school year;

and

- An Order a finding that the Student Pendency Services remain appropriate, and they be funded via the DOE, for the 23-24 school year. (Ex X 17)

Parent had requested relief that included Compensatory Services, and Independent Educational Evaluations, however each of these forms of relief were withdrawn. (T 24 & 26)

JURISDICTION

Hearing Officer‘s Finding of Fact & Decision

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

THE POSITION OF EACH PARTY

The DOE did not defend any offer of a Free Appropriate Public Education (FAPE), for the Student, for the 22-23 school year.

At Hearing, the Parent supported its position via Documentary Evidence and Oral Testimony. The Parent’s evidence is found to be credible and supportive of the Parent’s position, as considered below:

[REDACTED], Parent

Student’s Parent provide Testimony that included:

- Student is diagnosed with Down syndrome and attention deficit hyperactivity disorder (ADHD) (T 46);

- For the 22-23 school year the Student attended a private school in a general education class, receiving 30 hours weekly of push-in SEIT, with OT and SLT

(T 46-47);

- Private agency provided the Student SEIT services, during the 22-23 school year, and the 23-24 summer session (T 48-49);

- Student has made progress with the SEIT services: “He has become much more familiar and learned the ABCs. He's learned and become much more familiar with colors and shapes and life skills. And he was able to stay in his classroom and function with his peers.” (T 51);

- Parent behavior training has been very helpful (T 51);

- At an IEP meeting, in May, of 2023, Parent communicated that he believed the Student services were helping, and he wanted them to continue (T 51-52);

- For the 23-24 school year Student is to continue in a general education Hearing Officer‘s Finding of Fact & Decision classroom (T 53);

- Student continues to need 30 hours of weekly SEIT, PT and SLT services (T

53-54); and

- Parent is seeking enhanced rates for services: “So for the SEIT, the PT, and the behavior parent training, we are doing that because we cannot secure providers in the New York City area, where we live in Far Rockaway that are willing to service [Student] at the standard DOE rates.” (T 55)

A Impartial Hearing Request / Due Process Complaint (DPC) 07/05/2023

Amended via Amended Impartial Hearing Request / ADPC, dated 07/31/2023. (Ex X)

B Findings of Fact and Decision (FOFD) Case 229521 11/14/2022

Decision found that the DOE failed to offer the Student a FAPE for the 20222023 school year.

And Ordered that an appropriate Student program, for the 2022-2023 school year consists of the following weekly services, delivered for an Extended 12 Month School Year, via Parent chosen provider(s), funded by the DOE at reasonable market rate:

- 30 hours per week of push in, Individual, Special Education Itinerant Teacher (SEIT) services into a general education classroom;

- Speech Language Therapy: 3x30 minutes, 1:1;

- Speech Language Therapy: 2x30 minutes 3:1;

- Occupational Therapy: 3x45 minutes, 1:1;

- Behavioral Parent Training: 1x60 minutes; and

- Physical Therapy: 3x30 minutes.

(Ex B 24)

D Findings of Fact and Decision (FOFD) Case 211876 07/28/2022

Decision found that the DOE failed to offer the Student a FAPE for the 2019Hearing Officer‘s Finding of Fact & Decision

2020, 2020-2021 & 2021-2022 school years.

Ordered that:

- The DOE shall fund compensatory services, for the Student, to be utilized by

08/25/2025, and paid at reasonable market rate, as indicated below:

o Compensatory 1:1 Academic Instruction / Tutoring of 1,860 Hours o Compensatory Parent Training and Counseling of 138 Hours o Compensatory Physical Therapy of 21 Hours o Compensatory Speech and Language Therapy of 276 Hours o Compensatory Occupational Therapy of 138 Hours

- The DOE shall fund Student Independent Educational Evaluation below:

o Functional Behavior Assessment (FBA) and Behavior Intervention Plan (BIP) conducted by a professional with ABA training.

E Independent Speech Language Evaluation 02/09/2022

Details Student Speech Language needs noting:

- The Student “displays significant characteristics indicative of a language disorder that currently have and will continue to have a negative impact on his ability to access and understand the school curriculum;

- Delays are clinical causes for concern;

- Speech and language services are necessary to support student’s progress;

- .Student’s prior speech-language mandate of 2x30:1 and 1x30:3 was insufficient for him to make meaningful progress;

- If this mandate remains the same, Student will likely continue to fall behind or remain at his current communicative level without making meaningful progress, therefore widening the gap between his current level of functioning and the skills that are age-appropriate;

- Recommendations include:

o Speech-language therapy services to be provided in an area separate from the classroom 3x/week individually for 30 minutes per session and 2x/week in a group of up to 3 students for 30 minutes per session. Individual therapy sessions will allow for individualized therapeutic intervention to address his deficits. Hearing Officer‘s Finding of Fact & Decision

Group therapy sessions will allow for Student to generalize the skills he acquires in individual therapy sessions into a small group session as well as target his deficits with pragmatic (social) skills. Services should be provided on a 12-month basis to prevent regression. Should the individual school be unable to accommodate this provision of service, this service should then be funded to take place after school in the home or in an outpatient setting. (Ex E-15)

F Independent Occupational Therapy Evaluation 03/13/2022

Details Student’s Occupational Therapy needs, noting:

- Extremely significant delays are present in several areas of vestibular and bilateral integration dysfunction, proximal strength and stability, inner core strength, ocular motor skills, fine motor and graphomotor skills, intrinsic hand strength, visual-motor integration skills, visual perceptual skills, activities of daily living skills and instrumental activities of daily living skills have negatively impacted Student’s ability to participate in his current academic curriculum;

- Student needs constant use of visual support, guidance, verbal redirection, the use of a multi-sensory curriculum for learning and a systematic fading of prompts to develop the skills he is lacking;

- It is imperative for Student to receive occupational therapy services 3 times a week individually for 45 minutes a session within school due to these significant delays and safety concerns (e.g. tantruming);

- The absence of appropriate clinical intervention in Student’s current and prior programming have not met his needs and have not allowed him to further develop the aforementioned occupational therapy skills needed to be successful and independent in school, at home and within his community;

- If Student continues with inappropriate clinical intervention the gaps will continue to widen between him and his same aged-peers (Ex F 14); and

- Recommendations include:

o 12 month OT services to prevent regression (Ex F 15)

G CPSE Initial Speech Language Evaluation 02/28/2019 Hearing Officer‘s Finding of Fact & Decision

Confirms Student need for speech language therapy to address delays.

I [REDACTED] SEIT Quarterly Progress Report 11/15/2020 - 11/24/2020

The 20-21 school year report confirms Student need for special education services and details academic goals.

J Early Intervention Occupational Therapy (OT) Summary Undated

Confirms Student historical need for OT services.

K Early Intervention Speech Language Therapy (SLT) Progress Report 06/05/2019

Confirms Student need for speech language services.

L Early Intervention Special Instruction Progress Report 06/04/2019

Confirms Student historical need for special education services, noting the need for 1:1 support.

M CPSE Initial Psychological Evaluation 02/25/2019

Confirms Student historical diagnosis of Down syndrome, and need for special education evaluation, and services.

N Independent Neuropsychological Evaluation Report 1/24/22 - 5/23/22

Student is described, noting areas of delay and need for support:

[REDACTED]-old boy with Down Syndrome. He was referred for a comprehensive neuropsychological and educational evaluation by his parents…A happy, loving child, chief concerns were raised around by his parents around his attentional and behavioral regulation. While [Student] is verbal, he still has difficulty communicating at an age-appropriate level. He can follow directions, though it is impacted by his willingness to do so. He is still working on learning skills, compliance, and engagement in play. [Student] continues to require support for sitting and attending and keeping himself safe. His parents also sought appropriate educational and treatment recommendations.” (Ex N 1) Hearing Officer‘s Finding of Fact & Decision

Diagnostically, Student is described as having a: “…constellation of unique pattern of strengths and weaknesses, including deficits in cognitive and adaptive functioning, is consistent with Intellectual Developmental Disorder, Moderate (F71). Down Syndrome is the most common genetic etiology of intellectual disability, affecting approximately 1 in every 700 children. Children with Down Syndrome can learn and make progress but require much greater supports to do so compared to their nondisabled peers.” (Ex N 11)

Recommendations include:

- 12 month services;

- Continued placement in a mainstream setting;

- Placement in a 12:1 setting would be inappropriate;

- Continued 1:1 SEIT support for 30 hours weekly, to continue to promote all areas of development, and to provide consistent modeling, repetition, explicit and direct instruction, reinforcement, and behavioral programming for managing his behavior and to maintain his safety throughout the entirety of the school-day;

- Continued speech-language therapy, no less than given five times weekly for 30 minutes (5x30), given severe delays in receptive and expressive language and language processing;

- Continued occupational therapy, no less than three times weekly for 45 minutes

(3x45), given significant delays in daily living skills, self-regulation, and fine motor Functioning;

- Continued physical therapy services, no less than three times weekly for 30 minutes (3x30), given significant delays in gross motor functioning;

- Student continues to require behavioral support in the classroom, characterized by active use of labeled praise, clear and explicit guidelines to direct his behaviors, and effective plans to reinforce his self-regulation using modification and positive reinforcement. (Ex N 13);

- Behavioral Parent Training (BPT), a psychosocial behavior therapy intervention that is a frontline well-established treatment for children with ADHD. Behavioral improvements across multiple functional domains have been consistently reported in BPT. Common components of BPT include implementation of principles of positive reinforcement, parent-child relationship building, effective limit setting, Hearing Officer‘s Finding of Fact & Decision problem solving, anger management, psychoeducation, homework and review, behavioral rehearsal and roleplaying, modeling, provision of materials, and review of goals and progress. (Ex N 13)

O Independent Occupational Therapy (OT) Evaluation 6/9/22

Details Student delays and need for Occupational Therapy services.

Recommendations include:

- 3 Individual OT sessions per week individually at 45 minutes per session at school, on a 12-month basis to prevent regression. (Ex O 16)

P CPSE Initial Occupational Therapy (OT) Evaluation 03/08/2019

Confirms Student’s historical need for OT.

Q CPSE Initial Physical Therapy (PT) Evaluation 02/26/2019

Confirms Student’s historical need for PT.

R CPSE Educational Evaluation 02/28/2019

Confirms Student’s historical need for special education services, related to issues including Behavior, Language, and Motor Skills. (Ex R 3-5)

S DOE Social History Assessment 06/21/2022

Confirms Student need for special education services and Parent belief that Student: “requires an increase in his individual SEIT services mandate to 30 hours per week due to his current functioning level which requires constant 1:1 instruction and supervision pushed into an inclusion classroom setting and that he also requires an increase in his OT and Speech mandates.” (Ex S 2)

T SEIT Progress Report 06/28/2022

Details Student areas of delay and goals addressed, via the SEIT provider. Hearing Officer‘s Finding of Fact & Decision

U Occupational Therapy (OT) Progress Report 02/14/2022

Continued recommendation that the Student receive OT services to address areas of delay.

V Physical Therapy (PT) Progress Report 06/21/2022

Student continue to exhibit the need for PT services for the 22-23 school year.

W SEIT Progress Report 01/12/2023

Details Student areas of special education need, and outlines supports to address those needs:

“[REDACTED] boy with a diagnosis of Down Syndrome. He is currently in a [REDACTED] in [Private School], with 24 boys in the class. [Student] repeated nursery, so he is therefore in kindergarten instead of first grade. [Student] needs one-on-one special education instruction to help him participate and to ensure his and his classmate's safety. [Student] often needs extra prompting when transitioning from one activity to another. [Student] sometimes needs extra encouragement to complete tasks. Academic lessons and tasks sometimes need to be modified according to his level. He has made some progress toward his IEP goals. He is settled in the classroom and he learned to transition properly from each center to the next. He has improved in his fine motor skills in cutting and writing with a pencil. He is learning sight words and phonemic awareness and he is progressing in those areas. [Student] makes funny jokes and is liked by his peers. He is currently receiving 30 hours of SEIT, 3x30 speech therapy, individual(1:1) per week, speech therapy group (3:1) per week3x30, occupational therapy 2x30, and physical therapy 2x30 per week, on a twelve-month basis.” (Ex W 1)

Student academic levels are detailed with supports provided by the SEIT. This includes areas of: Reading, Writing (Ex W 1), Math (Ex W 1-2), and Social Development (Ex W 2).

Recommendation is made:

“It is recommended that Student] continue to receive 1:1 SEIT services for 30

Hearing Officer‘s Finding of Fact & Decision

hours a week. These services provide him with support in the classroom, enable him to meet his goals, and improve in the areas in which he is delayed. It is further recommended that he continue to receive OT, PT, and Speech therapy, to address his related delays. A 12-month service plan will best assure his continued progress.” (Ex W 3)

X Amended Impartial Hearing Request / ADPC 07/31/2023

Details allegations of a denial of FAPE, for the 23-24 school year, and sets forth area of requested relief.

Y Affidavit of Dr. [REDACTED], Psy.D. 09/11/2023

New York State Licensed Psychologist, who performed the Independent Neuropsychological Evaluation Report, of 1/24/22 - 5/23/22 (Ex N), provided Testimony which included:

- A review of qualifications and experience (Ex Y 1-2);

- Familiarity with the Student, via evaluation (Ex Y 2);

- A review of the Student evaluation procedure, and records reviewed (Ex Y 2-

6);

- Recommendation made include:

o Student placement in a mainstream setting with access to typically developing peers (Ex Y 6);

o 30 hours per week of push-in 1:1 SEIT in the classroom so that he can receive consistent modeling, repetition, explicating and direct instruction, reinforcement, and behavioral programming for managing his behavior and to maintain safety throughout the school day;

o SLT 5x30 per week, given his severe receptive and expressive language and language processing delays;

o OT of no less than 3x45 per week given his significant delays in daily living skills, self-regulation, and fine motor functioning;

o PT of no less than 3x30 per week given his significant delays in gross motor functioning;

o Student’s parents also require Behavioral Parent Training (BPT) of Hearing Officer‘s Finding of Fact & Decision

1x60 per week; and

o Mandates of SEIT 30 hours per week, SLT 5x30 per week, OT

3x45 per week, PT 3x30 per week, and BPT 1x60 per week on a 12- month “Extended School Year (ESY) basis, as he is at risk for regression in his skillset without receipt of services on a year-round basis. (Ex Y 7); and

- Disagreement with any proposed District 75 setting, and the recommendations he believes were made, via DOE IEP, for the Student’s 23-24 school year. (Ex Y 7-8)

Z Parent Email to NYC DOE 05/16/2023

Parent provides the DOE with Student documents seeking to support the continuation of Student services, for the 23-24 school year.

This includes:

o FOFD in Case No. 229521 (Ex B)

o Neuropsych Evaluation Report, issued June 2022 (Ex N)

o Occupational Therapy Evaluation Report, issued June 2022 (Ex O)

o Speech Language Evaluation Report, issued May 2022

FINDING OF FACTS AND DECISION

Purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400- 1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A][B]; see generally Forest Grove v. T.A., 129 S. Ct. 2484, )2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).

A FAPE is offered to a student when (a) the board of education 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; H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL Hearing Officer‘s Finding of Fact & Decision

3155869 [2d Cir. June 24, 2013]; R.E. v. New York City Dep't. of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012], cert. denied 2013 WL 1418840 [U.S. June 10, 2013]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998] [quoting Rowley, 458 U.S. at 206]; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]).

Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245; A.H. v. Dep't of Educ., 2010 WL 3242234, at *2 [2d Cir. Aug. 16, 2010]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008], aff'd, 2009 WL 3326627 [2d Cir. Oct. 16, 2009]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007], aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).

The IDEA directs that, in general, an IHO'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 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). However, the "IDEA does not itself articulate any specific level of Hearing Officer‘s Finding of Fact & Decision educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132 [quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989)] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district 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, 427 F.3d at 195 [quoting Walczak, 142 F.3d at 130] [citations omitted]); see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211, at *15). 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). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 [S.D.N.Y. 2010], aff'd, 2012 WL 4946429 [2d Cir. Oct. 18, 2012]; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]).

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6[S.D.N.Y. July 3, 2008] [noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see also Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Hearing Officer‘s Finding of Fact & Decision

Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

The Supreme Court has stated that even if it is unreasonable to expect a student to attend a regular education setting and achieve on grade level, the educational program set forth in the student's IEP "must be appropriately ambitious in light of his [or her] circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives" (Endrew F., 137 S. Ct. at 1000).

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85). A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129). A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (Carter, 510 U.S. Hearing Officer‘s Finding of Fact & Decision at 13-14). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ. of the City Sch. Dist. of Yonkers, 231 F.3d 96, 104 [2d Cir. 2000]). "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement'" (Gagliardo, 489 F.3d at 112, quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 [2d Cir. 2006]; see Rowley, 458 U.S. at 207). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). When determining whether a unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether the placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115; Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] ["evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]). A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; Educ. Law § 4401[1]; 34 CFR 300.39[a][1]; 8 NYCRR 200.1[ww]; Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836 [2d Cir. 2014]; Gagliardo, 489 F.3d at 114-15; Frank G., 459 F.3d at 365).

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement. No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction 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. Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65). Hearing Officer‘s Finding of Fact & Decision

The final criterion for a reimbursement award is that the parents' claim must be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]; L.K. v. New York City Dep't of Educ., 674 Fed. App'x 100, 101 [2d Cir. Jan. 19, 2017]). With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; 34 CFR 300.148[d]; E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014] [identifying factors relevant to equitable considerations, including whether the withdrawal of the student from public school was justified, whether the parent provided adequate notice, whether the amount of the private school tuition was reasonable, possible scholarships or other financial aid from the private school, and any fraud or collusion on the part of the parent or private school]; C.L., 744 F.3d at 840 [noting that "[i]mportant to the equitable consideration is whether the parents obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA"]).

Reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to their removal of the student from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense" (20 U.S.C. § 1412[a][10][C][iii][I]; see 34 CFR 300.148[d][1]). This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools" (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]). Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that Hearing Officer‘s Finding of Fact & Decision parents failed to comply with this statutory provision (Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); see Frank G., 459 F.3d at 376; Voluntown, 226 F.3d at 68).

DOE offer of FAPE for the 2023-2024 School Year The DOE opted not to present a defense to the Parent’s allegations.

The district has presented no witnesses in this matter. Although an IEP meeting was alleged to have been held, on 05/17/2023, an IEP is not presented. (Ex X 11)

The DOE has not evidenced development of an appropriate IEP for the commencement of the 23-24 school year.

The DOE offered no evidence that the Parent in any way frustrated any attempt of the DOE to offer a FAPE for the 23-24 school year.

I find the DOE failed to offer the Student a FAPE for the 23-24 school year.

Appropriate Student Services for the 23-24 School Year

Testimonial and documentary evidence, as reviewed above, support, as appropriate, the array of Student services sought. These services have already been found to be appropriate, for the Student, for the 22-23 school year. (Ex B) Uncontroverted Evidence continues to support the sought after services as appropriate for the 23-24 school year. (Ex Y 6-8, T 53-54)

The credibility of the documentary and testamentary evidence was not controverted by the DOE and the evidence is relevant and material to the issues to be determined. I find that the documentary evidence on behalf of the Parent credible and persuasive in favor of the Parent.

Evidence sets forth areas of Student special education need, services to address those needs, and notes progress. (Ex B, E, F, N, S, T, UV, W, Y & T 51-55)

I find that the sought after array of Student services continue to provide services specifically tailored to meet the needs of the Student, and they contribute to an appropriate education and program for the Student for the 23-24 school year.

ORDER

1. The Department of Education (DOE) failed to offer the Student a FAPE for the 2023Hearing Officer‘s Finding of Fact & Decision

2024 school year.

2. The below services are part of an appropriate Student special education program, for the 12 month, 23-24 school year. Services are to be funded by the DOE via Parent chosen provider(s), at reasonable market rate(s):

- 30 hours per week of push in individual (1:1) Special Education Itinerant Teacher (SEIT) services into a general education classroom.

- Speech Language Therapy (SLT) 3x30 minutes per week, 1:1;

- Speech Language Therapy (SLT) 2x30 minutes per week, 3:1;

- Occupational Therapy (OT) 3x45, 1:1;

- Behavioral Parent Training 1x60 minutes per week; and

- Physical Therapy (PT) 3x30 minutes per week.

3. The DOE shall provide Parent with any documents or forms necessary to facilitate services, and payment under this Order, within ten days of the date of this Order.

4. This decision is subject to appeal and review by the State Review Officer. DATED: September 20, 2023

DANIEL AJELLO

DANIEL AJELLO

Impartial Hearing Officer Hearing Officer‘s Finding of Fact & Decision

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.