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Case Number: 605948 – NYC: 253206
FINDINGS OF FACT AND DECISION
Case Number: 253206
Student’s Name: REDACTED
School District: N.Y.C. Dep’t. of Educ.
Impartial Hearing Officer: John Henry Olthoff
Date of Filing: 08/27/2023
Hearing Requested by: Parent
Dates of Hearing: 09/27/2023, 10/19/2023
Date of Decision: 10/26/2023
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 27, 2023
For the Student:
REDACTED, Advocate (Grandparent)
REDACTED, Mother of Student (“Parent”)
REDACTED, Father of Student
For the Department of Education:
REDACTED, Attorney
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 19, 2023
For the Student:
REDACTED, Advocate (Grandparent)
REDACTED, Mother of Student (“Parent”)
REDACTED, Father of Student
For the Department of Education:
REDACTED, Attorney
BACKGROUND
On August 28, 2023, Parents, through counsel, initiated a due process complaint (“DPC”) against Respondent, New York City Department of Education (“DOE”), pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. (“IDEA”), the Regulations of the Commissioner of Education, 8 N.Y.C.R.R. § 200.5, and Section 504 of the Rehabilitation Act. On August 30, 2023, I was appointed as the Impartial Hearing Officer (“IHO”) in this matter.
A Settlement and Pre-Hearing Conference (“PHC”) was held on September 27, 2023. It is noted that DOE failed to hold a Resolution Meeting during the 30-Day Resolution Period and failed to appear at the Settlement Conference preceding the PHC. It is also noted that DOE failed to provide Parents with a Due Process Response (“DPR”) pursuant to a directive issued at the PHC. The substantive due process hearing took place on October 19, 2023. DOE entered no documents and called no witnesses. Parents entered two documents and presented Parent as a witness. Additionally, The DPC, Student’s Individualized Education Program (“IEP”), and the Pre-Hearing Summary and Order were entered as IHO Exhibits.
It is Parents’ position that DOE failed to provide Student with the services recommended in the DOE’s Committee on Preschool Special Education (“CPSE”) IEP dated April 27, 2023, thereby depriving Student of a free appropriate public education (“FAPE”) during the 2023-2024 school year (“23/24 SY”). As relief, Parents request, inter alia, an order directing DOE to fund IEP-mandated speech and language therapy (“SL”) and occupational therapy (“OT”) by independent providers at those providers’ customary rates, and to be reimbursed for Parents’ out-of-pocket expenses Parents incurred for the independent SL services Parents obtained due to DOE’s failure to identify providers.
For the following reasons, I find that DOE 1) denied Student a FAPE during the 23/24 SY; and 2) must fund the services for Student outlined in this Order.
LEGAL FRAMEWORK
A School District’s Obligation to Provide a FAPE
The Individuals with Disabilities Education Act, 20 U.S.C. § 1400, et seq. (“IDEA”), requires school districts to provide a free appropriate public education (“FAPE”) to students with disabilities, which consists of special education and related services designed to meet students’ unique needs. The IDEA also seeks to ensure that the rights of students with disabilities, and their parents/guardians, are protected. Forest Grove School Dist. v. Y.M., 557 U.S. 230, 239 (2009); Bd. of Educ. of Hendrick Hudson C.S.D. v. Rowley, 458 U.S. 176, 206-07 (1982).
A school district provides a FAPE to a student with a disability when it complies with the various procedural requirements of the IDEA, and the school district’s Committee on Special Education (“CSE”) develops an Individualized Education Program (“IEP”) consistent with those procedural requirements and is reasonably calculated to enable the student to receive educational benefits. Rowley, supra, 458 U.S. at 206-07; T.M. v. Cornwall C.S.D., 752 F.3d 145, 151, 160 (2d Cir. 2014).
Under the IDEA, the obligation to identify and evaluate students, and to develop and implement IEPs for students with special education needs rests solely on the school district. In New York it is the school district that bears the burden of proof, including the burden of production and persuasion, regarding any issue at an impartial hearing, except for the appropriateness of a unilateral placement, where the burden shifts to the parent. N.Y. Educ. Law § 4404(1)(c).
If a parent alleges procedural violations of the IDEA, an IHO may find that a student did not receive a FAPE if such procedural violations: 1) impeded the student’s right to a FAPE; 2) significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provision of FAPE to the student; or 3) caused a deprivation of educational benefits.
See 20 U.S.C. §1415(f)(3)(E); 34 C.F.R. §300.513(a)(2); 8 N.Y.C.R.R. §200.5(j)(4)(ii); see also Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 (2007). For a district to provide for “merely more than de minimis” progress from year to year is insufficient: the U.S. Supreme Court has opined that the essential function of the IEP is to set out a plan for pursuing academic and functional advancement for the disabled student, and that such educational program must be reasonably calculated to enable the student to make progress appropriate in light of the child’s unique circumstances. See Endrew F. v. Douglas Cty. School Dist. RE-1, 137 S. Ct. 988, 999, 1001, 2017 U.S. LEXIS 2025 (2017).
A school district’s failure to offer or provide a FAPE for a disabled student may arise out of many different scenarios, including multiple procedural violations of IDEA requirements by the district, see R.E. v. New York City Dept. of Educ., 694 F.3d 167, 189-91 (2d Cir. 2012), and/or a substantively inadequate and inappropriate IEP. See Rowley, supra, 458 U.S. at 192. “Multiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not.” R.E., supra, at 190-91; see also M.H. v. N.Y.C. Dept. of Education, 685 F.3d 217, 245 (2d Cir. 2012); Werner v. Clarkstown C.S.D., 363 F. Supp.2d 656, 659 (S.D.N.Y. 2005).
A school district’s CSE is required to assess a student in all areas related to the suspected disability, including, where appropriate, health, vision, hearing, social and emotional status, general intelligence, academic performance, communicative status, and motor abilities. See 8 N.Y.C.R.R. § 200.4(b)(6)(vii); see also 34 C.F.R. § 300.304(c)(4). The evaluation must be sufficiently comprehensive to identify all of the student’s special education needs, whether or not commonly linked to the disability category in which the student has been identified. 8 N.Y.C.R.R.
§ 200.4(b)(6)(ix); see also 34 C.F.R. § 300.304(c)(6); R.Z. v. City Sch. Dist. of New Rochelle, 2018 U.S. Dist. LEXIS 56564 (S.D.N.Y. 2018). Additionally, part of any reevaluation of a student, the CSE and other qualified professionals shall review the existing evaluative data on a student and determine whether additional evaluative data are needed. 8 N.Y.C.R.R. § 200.4(b)(5). The Regulations of the N.Y.S. Commissioner of Education “are designed to ensure that students with disabilities are suitably grouped, requiring that such students be placed with students who have similar levels of academic achievement, social and physical development, and management. needs.” E.P. v. New York City Dep’t of Educ., 2016 U.S. Dist. LEXIS 77891 (S.D.N.Y. June 10, 2016); see also 8 N.Y.C.R.R. § 200.6(h)(2). “New York state regulations implementing the IDEA clearly constrain a school district’s choice of placement classroom.” E.P., supra, citing J.F. v. New York City Dep’t of Educ., 2013 U.S. Dist. LEXIS 63178, 2013 WL 1803983, at *2 (S.D.N.Y. April 24, 2013). Moreover, if a student has been successfully educated by means of a particular methodology or curriculum, and any subsequent placement must transition from that program to a new one in order to benefit meaningfully from the new placement, it must be part of the IEP, or the IEP is invalid.
If a school district defends its IEP, “the use of retrospective testimony about what would have happened if a student had accepted the district’s proposed placement must be limited to testimony regarding the services described in the student’s individualized education program (“IEP”). Such testimony may not be used to materially alter a deficient written IEP by establishing that the student would have received services beyond those listed in the written IEP.” R.E., supra, at 174. Testimony regarding services that do not appear on a student’s IEP may not be used to rehabilitate a deficient IEP or amend that IEP after the fact. R.E., supra, at 185.
School authorities can be expected to “offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.” Endrew F., supra, at 1002.
There can be no delay in implementing a student’s IEP, and the district is required to have an IEP in effect at the beginning of each school year for every student with a disability in that district’s jurisdiction. The failure to do so is a clear denial of FAPE. 20 U.S.C. §1414(d)(2)(A); 34 C.F.R. §300.323(a); 8 N.Y.C.R.R. §200.4(e)(1)(ii); see also, Cerra v. Pawling C.S.D., 427 F.3d 186, 194 (2d Cir. 2005) (school districts must ensure that a child’s IEP is in effect by the beginning of the school year and the parents must be provided a copy); K.L. v. New York City Dept. of Educ., 2012 WL 4017822, at *13 (S.D.N.Y. Aug. 23, 2012), aff'd, 530 Fed. App'x 81 (2d Cir. 2013); B.P. v. New York City Dept. of Educ., 841 F. Supp. 2d 605, 614 (E.D.N.Y. 2012) (district fulfilled its procedural obligation by providing the IEP before the first day of school); see also SRO Appeal No. 20-110; 20-038; 15-099. In Mr. and Mrs. A. York v. New York City Dep’t of Educ., 769 F. Supp. 2d 403 (S.D.N.Y.
2011), the Court held that failure to offer any placement to the student prior to the start of the school year constitutes a denial of FAPE. In F.B. v. New York City Dep’t of Educ., 132 F. Supp 3d 522 (S.D.N.Y. 2015), DOE did not communicate the school placement to the parents as of the deadline for enrollment at a private school, but before the start of the public-school year. The Court, citing M.O. v. New York City Dep’t of Educ., 793 F.3d 236, 244-45 (2d Cir. 2015), held that parents have the right to obtain relevant information in a timely fashion about DOE’s proposed placement and found denial of FAPE. The Court further held that parents had a procedural right to inquire whether the proposed school location had the resources set forth in the IEP. The Court explained that a parent’s IDEA-guaranteed right to meaningfully participate means, at a minimum, the right to obtain relevant and timely information as to the proposed school, and that the parent’s procedural rights do not stop the moment the CSE meeting ends. In C.U. ex rel. G.U. v. N.Y.C.
Dep’t of Educ., 23 F. Supp 3d 210 (S.D.N.Y. 2014), the Court held because the procedural protections in the IDEA are intended to ensure substantive outcomes, see Rowley, supra, at 206, it follows that parents have a procedural right to evaluate the school assignment, i.e., the right to acquire relevant and timely information as to the proposed school. In G.U., supra, the student had autism and a seizure disorder, meaning that the proposed school’s ability to implement the IEP affected the student’s safety as well as education.
School districts do not have “carte blanche” to assign a child to a school “that cannot satisfy the IEP requirements.” T.Y. v. New York City Dep’t of Educ., 584 F.3d 412, 420 (2d Cir. 2009).
Additionally, parents who challenge a proposed IEP are not foreclosed from all prospective challenges to a proposed school location’s ability to implement the IEP. R.E., supra. “To conclude otherwise would require parents to send their child to a facially deficient placement school prior to challenging that school’s capacity to implement the child’s IEP, which is “antithetical to the IDEA reimbursement process.” See V.S. ex rel. D.S. v. New York City Dep’t of Educ., 25 F. Supp.3d 295, 300 (S.D.N.Y. 2014); M.O. supra, at 244-45.
Reimbursement/Direct Funding for a Nonpublic School
When a school district fails to offer or provide a FAPE, that school district may be obligated to reimburse parents for the costs of private educational services obtained for their disabled student. Generally, reimbursement of such costs is required when: 1) the services or educational program and placement offered by the school district are inadequate or inappropriate for the student; 2) the services or educational program and placement selected by the parents and provided to the student are appropriate; and 3) the equitable considerations and related factors support the parent’s claims. Florence Cty. School Dist. Four v. Carter, 510 U.S. 7 (1993); School Committee of Burlington v. Dept. of Educ., 471 U.S. 359, 369-70 (1985); R.E., supra, 694 F.3d at 184-85. The second “prong” of the Burlington/Carter analysis requires the Parent to show that the private placement implemented must be “proper under the Act,” i.e., the private placement offered an educational program which met the student’s special education needs. See Gagliardo v.
Arlington C.S.D., 489 F.3d 105, 112-15 (2d Cir. 2007); Walczak v. Florida U.F.S.D., 142 F.3d 119, 129 (2d Cir. 1998).
Parents seeking reimbursement bear the burden of showing that the private placement for their disabled child was appropriate. Generally, the same factors and criteria that apply in evaluating the district’s placement are also applicable in determining whether the parent’s placement is appropriate. Gagliardo, supra, 489 F.3d at 112; see also Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006). Thus, a parental placement is appropriate if it provides instruction specially designed to meet the unique needs of the student. 20 U.S.C.
§1401(29); N.Y. Educ. Law §4401(1); Hardison v. Bd. of Educ., Oneonta City S.D., 773 F.3d 372, 386 (2d Cir. 2014); Gagliardo, 489 F.3d at 114-15. In Gagliardo, supra, the Second Circuit held that the specific standard for determining whether the Parent have satisfied their burden of showing the appropriateness of their unilateral placement is:
[The Parent] need only demonstrate that the placement provides educational instruction specifically designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.
Gagliardo, 489 F.3d at 112.
Parental placement need not be located at a state-approved school or institution to be eligible for reimbursement. Florence County Sch. Dist. v. Carter, 510 U.S. 7, 13-14 (1993). In fact, the parental placement school or institution need not comply with federal or state regulatory procedures and requirements regarding the provision of special education services to students with disabilities. For example, a non-state-approved entity is not required to develop their own IEPs for students, nor are they mandated to provide services in compliance with an IEP. Id.
A parent need only show that, at the time of the placement, that the placement was “likely to produce progress, and not regression.” Gagliardo, supra, at 112. The necessary inquiry regarding the appropriateness of a unilateral placement is whether the program reasonably could have been expected, at the time of placement, to offer meaningful educational benefit to a student.
See, e.g., B.R. ex rel. K.O. v New York City Dep’t of Educ., 910 F. Supp 2d 670, 677 (S.D.N.Y.
2012).
A parent is not held to the same legal standard as a school district in demonstrating the appropriateness of a unilateral placement as a school district is in showing it offered a student a FAPE. See, e.g., C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836-37 (2d Cir. 2014).
(“The test for the Parent’s private placement is that it is appropriate, and not that it is perfect.”).
School districts that seek “to avoid reimbursing parents for the private education of a disabled child can do one of two things: give the child a free appropriate public education in a public setting, or place the child in an appropriate private setting of the State’s choice. This is the IDEA’s mandate, and school officials who conform to it need not worry about reimbursement claims.” Carter, supra, at 15.
Neither the New York Education Law nor the IDEA obligates a parent to prove at hearing that they are unable to afford the cost of their child’s placement at an appropriate private school.
Special education placements are to be provided “at no cost to the parent.” N.Y. Educ. Law § 4401(1); Letter to Hampden, 49 IDELR 197 (OSEP 2007). The entitlement to a FAPE cannot depend on a family’s ability to front the cost of a unilateral placement and then wait, potentially years, for reimbursement. See, e.g., D.A. v. N.Y.C. Dept. of Education, 769 F. Supp.2d. 403, 427 (S.D.N.Y. 2011).
Equitable Considerations
The third prong of the Burlington/Carter analysis is that a parent’s claim for reimbursement (or direct payment) must be supported by equitable considerations. Reimbursement/direct payment may be reduced, or denied, if a parent fails to timely raise the appropriateness of an IEP, fails to make their child available for an evaluation, or acts in an unreasonable manner. The latter often involves a parent who obstructed or was uncooperative in the district’s efforts to meet their obligations under the IDEA. See C.L. supra, at 840.
Reimbursement may be reduced or denied if a parent fails to notify the school district, either at the IEP meeting or in writing ten days before removal of the student from the public placement, of the intent to enroll the student in a private placement. 20 U.S.C. § 1412(a)(10)(C)(iii)(I).
When considering equitable factors, courts “may consider many factors, including, inter alia, whether plaintiff’s unilateral withdrawal of her child from the public school was justified, whether plaintiff provided the Department with adequate notice of the withdrawal, whether the amount of private school tuition was reasonable, whether plaintiff should have availed herself of need-based scholarships or other financial aid from the private school, and whether there was any fraud or collusion in generating (or inflating) the tuition to be charged to the Department, or 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). See also C.L., supra, at 840 (where parents’ pursuit of a private placement “was not a basis for denying their tuition reimbursement, even assuming, as the District contended before the IHO, that the parents never intended to keep [student] in public school.”) (emphasis added).
FINDINGS OF FACT
After considering all the evidence, as well as the parties’ arguments, this IHO’s Findings of Fact are as follows:
Student is a [REDACTED]-year-old student classified by DOE as a Preschool Student with a Disability. (Ex. II). DOE’s CPSE created an IEP for Student on April 27, 2023 with an Implementation Date of June 9, 2023. (Id.). The IEP indicates that Student has deficits in speech intelligibility and fine motor skills and recommends that Student receive individual SL and OT twice per week each in 30-minute sessions. (Id.).
Although the IEP has an Implementation date of June 9, 2023, Parents did not receive the IEP until June 22, 2023. (Ex. A). Parents documented many attempts to contact the CPSE regarding the receipt, and then the implementation of the IEP. (Id.).
Parents obtained SL services from an independent provider at a rate of $125.00 per session, starting April 14, 2023. (Ex. B). As of October 4, 2023, Parents had paid $4,000.00 for SL services for Student. (Id.). To date, DOE has failed to identify any providers to provide the IEP-mandated services for Student.
Parents wish for Student to continue receiving SL services from his current provider.
Additionally, Parents have identified an OT clinician who is able to provide the IEP-mandated frequency and duration of OT for Student at a rate of $250/session. (Ex. III).
ANALYSIS AND CONCLUSIONS OF LAW
There can be no dispute that Student is entitled to SL and OT services pursuant to the April 27, 2023 CPSE IEP. (Ex. II).
DOE has failed to present any evidence that it identified SL and OT providers for Student.
Additionally, Parents have provided unrebutted evidence that DOE has caused unnecessary delays in providing Parents with necessary documentation, making Parents wait nearly two months after the April 27, 2023 IEP meeting to provide the IEP. (Ex. B). More egregiously, DOE failed to provide any evidence that it notified Parents of their due process rights prior to August 21, 2023, nearly four months after the IEP meeting. The above leads to the inexorable conclusion that DOE failed to do what it made no attempt to do at the hearing, which is to demonstrate by a preponderance of the evidence that it offered or provided Student with a FAPE for the school year in question.
Having determined that DOE has failed to offer or provide Student with a FAPE, the inquiry shifts to the appropriateness of Parents’ requested relief.
Parents’ requests are as follows:
1) Reimbursement for the SL services for which Parents have paid out of pocket;
2) That Parent may retain the same SL provider at that provider’s rate for the remainder of the 23/24 SY;
3) That payment to the SL provider be directly to Parents, as the SL provider has had prior negative experience with delays related to direct billing to DOE;
4) That this IHO mandate an appropriate payment cycle, i.e., payment for invoices within fourteen (14) days;
5) That Student’s mandated OT services be provided by a provider of Parent’s choosing at that provider’s requested rate for the 23/24 SY;
6) That DOE fund make-up sessions for the OT Student has missed from his third birthday May 17, 2023, to the present;
7) That DOE be assessed punitive damages and legal fees if it fails to timely comply with the annual review requirement; and 8) That the relief ordered continue until Student is eligible for transition to the Committee on Special Education (“CSE”) (age 5).
I will address each of Parents’ requests in turn. With respect to Item 1, it is not in question that Student requires SL services. Parents, justifiably frustrated with DOE’s sluggishness/ineptitude in providing services compliant with its recommendations, engaged in self-help by obtaining SL services for Student from an independent provider, in the frequency and duration recommended by DOE on its April 27, 2023 CPSE IEP, beginning April 14, 2023.
When a parent requests an initial evaluation, DOE has sixty (60) school days in which to arrange for special education services for a student deemed eligible for a FAPE. 8 N.Y.C.R.R. § 200.4(d). See also SRO Appeal No. 22-165.
Here, Parents gave initial consent for an evaluation on March 15, 2023. (Ex. A). DOE’s creation of an IEP on April 27, 2023 is well within the 60-day timeframe; however, its failure to provide any services pursuant to the IEP is the basis for finding that DOE denied Student a FAPE.
If DOE had arranged for Student to receive services on or around the IEP’s proposed implementation date of June 9, 2023, it would have been in compliance with the Commissioner’s Regulations. 8 N.Y.C.R.R. § 200.4(d). Accordingly, it would seem that Parents, in their impatience with DOE’s failures, paid out-of-pocket for SL services for Student prior to Student being officially deemed eligible for a FAPE.
If DOE had raised this issue during the hearing, I would have weighed this defense against DOE’s other failures. However, DOE made no attempt to defend its actions and raised no objection to Parents’ request. Moreover, Parents’ request is entirely reasonable given the risk of regression.
Therefore, I have determined that it is an appropriate remedy to order DOE, upon presentation of proof of payment, to reimburse Parents for their out-of-pocket expenses for SL services. With respect to Item 2, it is entirely reasonable that Parents, in the interest of consistency and in light of the progress Student may have made with his current provider, would wish for Student to remain with the same provider for the remainder of the 23/24 SY. I will therefore order DOE to fund Student’s SL services from a provider of Parents’ choosing at that provider’s rate for the remainder of the 23/24 SY. With respect to Item 3, it is not within my authority to direct DOE to do other than reimburse or directly fund special education services. If Parents’ chosen provider, having experienced delays getting paid directly from DOE, does not wish to accept payment via this method, Parents may continue to pay up front and then present proof of payment to DOE for reimbursement. I shall order DOE to reimburse and/or directly fund Student’s SL services so that, if Parents for some reason need to find a different provider, they will have that flexibility. With respect to Item 4, it is beyond my authority to put DOE on a specific payment schedule. I am able to order DOE to fund/reimburse for items by a certain date—however, if DOE fails to comply, the recourse is to bring an enforcement action in state or federal court. [1]
With respect to Items 5 and 6, student’s need for OT services is not in dispute. Also not in dispute is DOE’s failure to secure an OT to provide its recommended services to Student. It is therefore appropriate to order DOE to fund OT for Student by a provider of Parents’ choosing at that provider’s rate for the remainder of the 23/24 SY, and to order DOE to create a bank of make-up sessions. Parents have identified a provider whose rate is $250.00/session, which I find to be reasonable. (IHO Ex. III). While calculating Student’s eligibility from his 3rd birthday as opposed to the proposed implementation date of the IEP raises the same question as Item 1, supra, it is entirely reasonable to order DOE to fund the provision of Parents’ requested OT sessions, to prevent regression and to put Student in the position he would have been had DOE actually complied with its obligations under IDEA. With respect to Item 7, it is beyond my authority to assess punitive damages or to order one party to pay another’s legal fees. While parents may seek reasonable attorney’s fees if they are the prevailing party in an impartial hearing, IDEA does not give an IHO the authority to award monetary damages. See 34 C.F.R. § 300.517(a)(1)(i). With respect to Item 8, school districts are obligated to convene an annual review and develop an IEP for every student with a disability in their jurisdiction every year. 8 N.Y.C.R.R. § 200.4(f). In practical terms, this means that DOE must convene an IEP meeting for Student on or around the Annual Review Date of April 27, 2024. At that time, Student will be approaching four (4) years old and will still be eligible for special education services as a Preschool Student with a Disability, meaning that the CPSE will be tasked with creating his IEP for the upcoming 2024-2025 SY. While I sympathize with Parents’ frustrations and concerns in dealing with the CPSE, there is no legal machinery by which an IHO can order the circumvention of the CPSE in favor of the CSE. If Parents are dissatisfied with either the substance of implementation of Student’s next IEP, their recourse is to bring a due process proceeding.
DECISION AND ORDER
IT IS HEREBY ORDERED that DOE has failed to offer or provide Student with a FAPE during the 23/24 SY; and it is further
ORDERED that DOE shall do the following:
a. Upon proof of payment, reimburse Parents for all Speech and Language Therapy services obtained for student, from April 14, 2023 to the present;
b. Reimburse/directly fund Speech and Language Therapy services for Student at the frequency and duration recommended in the April 27, 2023 IEP, 2 30-minute sessions per week, by a provider of Parents’ choosing at that provider’s rate;
c. Reimburse/directly fund Occupational Therapy services for Student at the frequency and duration recommended in the April 27, 2023 IEP, 2 30-minute sessions per week, by a provider of Parents’ choosing at that provider’s rate;
d. Reimburse/directly fund a bank of make-up Occupational Therapy sessions for Student for sessions missed from May 17, 2023 to the present, to be provided by a provider of Parents’ choosing at that provider’s rate; and it is further
ORDERED that DOE shall provide a copy of this decision to any person participating in any review of Student’s placement that takes place during the next twelve (12) months from the date of this decision, and at least three (3) days in advance of any such meeting.
Dated: New York, NY
October 26, 2023
/s: John Henry Olthoff/
John Henry Olthoff, Esq.
Impartial Hearing Officer
DOCUMENTATION ENTERED INTO THE RECORD BY DOE
NONE
DOCUMENTATION ENTERED INTO THE RECORD BY PARENT
Date Description # of Pages
A VARIOUS Summary of Correspondence with DOE 1
B VARIOUS Receipt from REDACTED 2
DOCUMENTATION ENTERED INTO THE RECORD BY IHO
I 08/28/2023 Due Process Complaint 4
II 04/27/2023 CPSE IEP 17
III UNDATED Affidavit of REDACTED, Occupational Therapist 1
NOTICE OF RIGHT TO APPEAL
Within forty (40) days 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, pursuant to Section 4404 of the New York 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 twenty-five (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, the 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 (2) 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 are available at http://www.sro.nysed.gov.
Footnotes
[1] Information about the class action lawsuit L.V. v. New York City Dep’t of Educ., which concerns DOE’s persistent failures to timely implement IHO orders, can be found here: https://www.advocatesforchildren.org/litigation/class_actions/lv_vs_nyc_doe