Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 253566

Student’s Name: [REDACTED]

School District: N.Y.C. Dep’t. of Educ.

Impartial Hearing Officer: [REDACTED]

Date of Filing: 08/30/2023

Hearing Requested by: Parent

Date of Hearings: 10/02/2023, 10/26/2023

Date of Decision: 11/22/2023 Findings of Fact and Decision IHO

NAMES AND TITLES OF PERSONS WHO APPEARED

OCTOBER 2, 2023

For the Student:

[REDACTED], Esq., Attorney

For the Department of Education:

[REDACTED], Esq., Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED

OCTOBER 26, 2023

For the Student:

[REDACTED], Esq., Attorney

[REDACTED], Parent (“Parent”)

For the Department of Education:

NONE

Findings of Fact and Decision IHO

BACKGROUND

On August 30, 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 September 11, 2023, I was appointed as the Impartial Hearing Officer (“IHO”) in this matter.

A Pre-Hearing Conference (“PHC”) was held on October 2, 2023. The substantive due process hearing was held on October 26, 2023. Parent entered twelve (12) exhibits into the record and presented affidavit testimony of Parent, [REDACTED], Head of School (“Head of School”) at Fusion Academy (“Private School”). DOE did not appear at the hearing on October 26, 2023. ^[1]

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 Findings of Fact and Decision IHO 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 Findings of Fact and Decision IHO 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 Findings of Fact and Decision IHO 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. Findings of Fact and Decision IHO

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 Findings of Fact and Decision IHO 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. Findings of Fact and Decision IHO §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). Findings of Fact and Decision IHO (“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.

A Parent’s claim must be supported by equitable considerations. IDEA states that reimbursement/funding may be reduced or denied if a parent does not inform the district, either at the IEP meeting or in writing ten (10) days before removal, of their disagreement with the district’s Findings of Fact and Decision IHO placement and their intent to place their child in a private school. 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).

Compensatory Education

IDEA authorizes a hearing officer to fashion an appropriate remedy, and compensatory education is an available option under IDEA to make up for a denial of FAPE. P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008). The broad discretion under IDEA allows for courts to consider reimbursement for private school tuition as compensatory education for longer than the applicable statute of limitations. See, Draper v. Atl. Indep. Sch. Sys., 518 F.3d 1275 (11th Cir. 2008). A student “is entitled to compensatory education for the period equal to the period of deprivation, but excluding the time reasonably required for the school district to rectify the problem.” G.L. v. Ligonier Valley Sch. Dist. Auth., 802 F.3d 601, 618-19 (3d Cir. 2015); citing M.C. ex rel. J.C. Cent. Reg’l Sch. Dist., 81 F.3d 389, 396-97 (3d Cir. 1996). Findings of Fact and Decision IHO

Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case. Wenger v. Canastota, 979 F. Supp. 147 (N.D.N.Y. 1997). The purpose of compensatory education is to provide an appropriate remedy for denial of FAPE. See, e.g., E.M. v. New York City Dep’t of Educ., 758 F.3d 442, 451 (2d Cir. 2014); see also Newington, supra, at 123. Such an award should aim to place the student in the position they would have been had the school district complied with its obligations under IDEA. See, e.g., Newington, supra, at 123; see also Draper, supra, at 1275, 1289.

A presently appropriate educational program “does not abate the need for compensatory education.” D.W. v. District of Columbia, 561 F. Supp. 2d 56, 61 (D.D.C. 2008); see also Flores ex rel. J.F. v. District of Columbia, 437 F. Supp. 2d 22, 30 (D.D.C. 2006). Where a current appropriate program must provide some benefit, an award of compensatory education must do more—it must compensate. See Reid ex rel. Reid v. District of Columbia, 401 F.3d 516, 525 (D.C. Cir. 2005).

FINDINGS OF FACT

Student is [REDACTED] year-old boy who has been diagnosed with autism, attention deficit hyperactivity disorder (“ADHD”), and adjustment disorder with mixed disturbance of emotions and conduct. (Ex. I). Although Student has been assessed in the “superior” range in several domains, he exhibits difficulties in a number of areas, especially with regard to his behavior and emotional regulation. (Id.).

DOE convened a Committee on Special Education (“CSE”) on August 3, 2020 to develop an IEP for Student. (Ex. B). The CSE recommended placement in an approved nonpublic school (“NPS”) but failed to identify an appropriate NPS for Student for the 2020-2021 SY. (Exs. A, B).

DOE convened a CSE on March 8, 2022 where it changed its recommendation to an Findings of Fact and Decision IHO Integrated Co-Teaching (“ICT”) classroom in a public school. (Ex. D). Student experienced behavioral regression that affected his academic performance as a result. (See, generally, testimony of Parent, Tr. 26-30).

DOE convened a CSE on January 24, 2023 and repeated its ICT recommendation despite Student’s lack of progress in that setting. (Ex. G).

DOE convened a CSE on August 14, 2023, to develop an IEP for Student for the 2023-2024 school year (“23/24 SY”). (Ex. J). DOE recommended a deferral to the Center Based Support Team (“CBST”) for placement at a nonpublic school (“NPS”). (Id.).

There is no evidence that DOE identified an appropriate NPS for Student for the 23/24 SY. (Id.).

As a consequence of DOE’s failure to recommend an appropriate NPS, as well as the inappropriateness of Student’s current interim public school placement, Parent identified Private School as an appropriate placement for Student. (Ex. L; Tr. 33-).

Private School provides 1:1 instruction in all subjects, with instruction customized to meet students’ needs. (Ex. L). Private School “attracts students whose needs do not fit into a typical student mold and for various reasons, their needs could not be addressed in a public school setting.” (Ex. L, ¶ 9).

Each student at Private School receives a Formal Education Program (“FEP”), which includes information on the student’s disabilities, learning needs, and educational levels. (Ex. L, ¶ 10).

Students are provided opportunities to socialize and to interact with non-disabled students at “Homework Cafes,” each of which contains a teacher to provide academic support. (Ex. L, ¶ 12, 15). There are also clubs for students to join to foster socialization. (Ex. L, ¶ 13). Students also Findings of Fact and Decision IHO receive life skills and community minds instruction to support appropriate social interactions. (Ex. L, ¶ 16).

Parent and Student toured Private School in August 2023, and Head of School determined that Private School would be an appropriate placement for Student, as Student’s profile “is similar to the students we serve at [Private School].” (Ex. L, ¶ 23).

ANALYSIS AND CONCLUSIONS OF LAW

DOE Failed to Offer or Provide Student with a FAPE

As an initial matter, DOE entered no documents, called no witnesses, and did not appear at the impartial hearing, effectively conceding that it failed to meet its burden under the New York Education Law. Far from offering a cogent explanation for its recommendations, DOE instead opted to leave all of the heavy lifting at the hearing to Parent.

Accordingly, the record supports a finding that DOE failed to meet its burden that it offered or provided Student with a FAPE during the 22/23 and 23/24 SYs.

Parent’s Proposed Educational Placement is Appropriate

The record establishes that Student will benefit from the educational program provided at Private School. (Exs. K, L). Head of School provided extensive unrebutted affidavit testimony that supports the conclusion that Private School is able to meet Student’s complex needs. (Ex. L). It is evident that Private School will be able to provide the type of educational program, including, inter alia, a limited student-to-teacher ratio, an environment suitable to address Student’s academic and social-emotional needs in light of his disabilities, and social skills support. (Ex. I).

Parent has therefore established by a preponderance of the evidence that Private School will provide Student with special instruction, supported by related services, will enable him to receive an educational benefit. Findings of Fact and Decision IHO

Equitable Considerations Favor Parents

As an initial matter, DOE’s failure to recommend a school placement for Student prior to the start of the 23/24 SY hangs like an anchor around its neck. The Court in N.R. v. N.Y.C. Dept. of Educ., 2009 U.S. Dist. LEXIS 27273, *20-21 (S.D.N.Y. 2009) noted that “the Court is unaware of, any case in which equitable considerations favored a school district that failed to offer a disabled child a school placement prior to the commencement of the school year.”

Parent attended IEP meetings, expressed her concerns, participated with DOE in evaluating Student, and provided DOE with evaluative data. (Exs. B, D, E, F, G, I, J). Parent attempted to cooperate with DOE in its search for an NPS. (Ex. H). The law does not require more, especially in instances such as here where DOE failed to provide a placement for Parent to evaluate.

While the reasonableness of the cost of tuition is an equitable factor (E.M., supra), DOE has failed to offer any evidence that a placement exists that provides a similar level of services and support and costs less than Private School. In fact, DOE raised no objection whatsoever as to the cost of Student’s placement at Private School. Therefore, I cannot but conclude that the cost of Private School is reasonable.

Compensatory Education

An award of compensatory education should be fashioned in such a manner as to put the student in the place they would have been but for DOE’s failure to provide appropriate educational services. Here, the record is sparse as to what would constitute an appropriate award.

As a consequence of Student’s autism diagnosis, Parent is entitled to an award of Parent Counseling and Training (“PCAT”) for a time period reasonably calculated to compensate for DOE’s failure to provide PCAT in the past. As this matter concerns both the 22/23 and 23/24 SYs,

I find that an award of 24 sessions of PCAT will be appropriate to compensate Parent for DOE’s Findings of Fact and Decision IHO past failures. These sessions are to be provided by a provider of Parent’s choosing at that provider’s customary rate.

The record does not contain evidence that Student would benefit from an award of academic tutoring. While Student may benefit from outside counseling to address social skills and other behavioral concerns, such an award would be speculative, and I decline to award additional counseling as compensatory education. It may be that once placed in an appropriate environment, Student’s behavioral issues will diminish, and one hopes that that will be the case here. While a currently appropriate placement does not abate the need for compensatory education, D.W., supra, there is not sufficient evidence in the record to award additional compensatory services.

DECISION AND ORDER

IT IS HEREBY ORDERED that DOE procedurally and substantively denied Student a FAPE during the 2022-2023 and 2023-2024 school years; and IT IS FURTHER ORDERED that Parents’ proposed unilateral placement at Private School is appropriate; and IT IS FURTHER ORDERED that equitable considerations favor a full award of the cost of Student’s placement at Private School for the 2023-2024 school year; and IT IS FURTHER ORDERED that DOE shall

1. Reimburse and/or directly fund Student’s placement at Private School for the remainder of the 2023-2024 school year, including the cost of related services; and

2. Provide appropriate transportation to and from Private School for Student for the remainder of the 2023-2024 school year;

3. Directly fund twenty-four (24) sessions of Parent Counseling and Training, by a provider of Parent’s choice at that provider’s customary rate; and Findings of Fact and Decision IHO

4. Provide appropriate transportation to and from Private School; 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, at least three (3) days in advance of any such meeting.

Dated: New York, NY

November 22, 2023

/s: John Henry Olthoff/

Impartial Hearing Officer

Findings of Fact and Decision IHO

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. Findings of Fact and Decision IHO

DOCUMENTATION ENTERED INTO THE RECORD BY DOE

None

DOCUMENTATION ENTERED INTO THE RECORD BY PARENT

A. Ex. Name Date Pages Parent’s Impartial Hearing Request 08/30/23 7 pages

B. Individualized Education Program 08/03/20 30 pages

C. Functional Behavior Assessment 12/21/21 7 pages

D. Individualized Education Program 03/08/22 27 pages

E. Social History Update 12/20/22 2 pages

F. Psychoeducational Assessment 01/24/23 4 pages

G. Individualized Education Program 01/24/23 25 pages

H. Central Based Support Team Email (w/ attachments) 05/16/23 10 pages

I. Neuropsychological Evaluation 06/13/23 22 pages

J. Individualized Education Program 08/14/23 19 pages

K. Fusion Academy Brochure Undated 52 pages

L. Affidavit of [REDACTED] 10/25/23 7 pages

Footnotes

[1] Calendar invitations were sent via email prior to the hearing. DOE had appeared previously and corresponded via email concerning this matter. I sent an email to remind DOE Counsel that we were waiting her arrival. After waiting for some time, Parent began presenting her case.