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CASE NUMBER: 607330 - NYC: 254503
FINDINGS OF FACT AND DECISION
Student’s Name [1]: [REDACTED] (“Student”)
Date of Birth: [REDACTED]
School District: N.Y.C. Dept. of Ed., District # [REDACTED]
Hearing Requested by: [REDACTED] (“Parent(s)”)
Request Date/Date Complaint Filed: 09/05/2023
Actual Record Closed Date: 11/30/2023
Date(s) of Hearing: 11/01/2023; 11/02/2023; 11/08/2023; 11/09/2023; 11/17/2023 Date of Decision: 12/01/2023 Time Sensitive Yes Hearing Officer: Melanie L. Bota. Esq
NAMES AND TITLES OF PERSONS WHO APPEARED
NOVEMBER 01, 2023
For the Student:
[REDACTED], Law Offices of [REDACTED] [REDACTED], Esq. & Associates, (hereinafter referred to as, “Parent Representative”)
For the Department of Education:
[REDACTED], (hereinafter referred to as, “District Representative”)
NAMES AND TITLES OF PERSONS WHO APPEARED
NOVEMBER 02, 2023
For the Student:
[REDACTED], Law Offices of [REDACTED], Esq. & Associates, Parent Representative
[REDACTED], Parent Student
For the Department of Education:
[REDACTED] berg, District Representative
[REDACTED], CPSE Administrator, Witness
NAMES AND TITLES OF PERSONS WHO APPEARED
NOVEMBER 08, 2023
For the Student:
[REDACTED], Law Offices of [REDACTED], Esq. & Associates, Parent Representative
[REDACTED], Psychologist, Witness
[REDACTED], Parent, Witness
For the Department of Education:
Michael Isenberg, District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
NOVEMBER 09, 2023
For the Student:
[REDACTED], Law Offices of [REDACTED], Esq. & Associates, Parent Representative
[REDACTED], Parent, Witness
For the Department of Education:
Michael Isenberg, District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
NOVEMBER 17, 2023
For the Student:
[REDACTED], Law Offices of [REDACTED], Esq. & Associates, Parent Representative
[REDACTED], Parent Student
For the Department of Education:
[REDACTED], District Representative
BACKGROUND
The Student is a [REDACTED]-year-old student who is classified with “Preschool with a Disability” by the New York City Department of Education (“DOE” or “District”) under the Individuals with Disabilities Act (“IDEA”). The Student’s classification or eligibility for special education supports and services are not in dispute. The Student is currently attending the Day Program for the 2023-24 school year. [2]
The Parent alleges that the District failed to provide the Student with a free and appropriate public education (“FAPE”) for the 2023-24 school year.[3] The Parent requests the following relief:
1) a finding that the DOE failed to provide the Student with a FAPE for the 2023-24 school year;
2) an order that the DOE reimburse the Parent for the independent psychological and educational evaluations conducted for the Student; 4 3) an order for the Committee on Pre-School Education (“CPSE”) to reconvene and recommend the Student be placed in a New York State Education Department-approved, 9:1:2 special class day program (“NYSED Day Program”), with Yiddish capacity, for the 2023-24 school year;
4) an order for the CPSE to recommend a full-time health paraprofessional, 1:1 speech-language therapy (“SLT”) 3x/week for 30 minutes; and 1:1 occupational therapy (“OT”) 3x/week for 30 minutes;
5) compensatory education services for any services not provided to the Student during the 2023-24 school year; and
6) any and all additional relief deemed appropriate by the IHO to remediate the Student’s needs and provide relief for the DOE’s failures. 5
PROCEDURAL HISTORY
On September 5, 2023, the Parent, through the Parent Representative, filed a due process complaint (“DPC”) against the District, pursuant to the IDEA and the New York State Education Law.[6] On September 7, 2023, I was appointed impartial hearing officer (“IHO”) to this case to determine the claims in the DPC and to conduct an impartial due process hearing (“DPH”) pursuant to 20 U.S.C. § 1415(f) and New York State (“NYS”) Education Law § 4404(1), concerning the Student’s special education program. On October [5], 2023, the Resolution Period expired without
4 The Parent Representative clarified at the Prehearing Conference on October 24, 2023, that the Parent was requesting reimbursement of the evaluations conducted and not for an interim order for independent educational evaluations. See Transcript, at 48 – 49, October 24, 2023. the parties reaching an agreement regarding all of Parent’s requested relief. On October 19, 2023, a Settlement Conference and Prehearing Conference were held with representatives of both parties. On October 20, 2023, the parties executed a pendency agreement. On October 24, 2023, a continued Prehearing Conference was held with the Parent Representative, as the District failed to appear. On November 9, 2023, the District untimely filed a Due Process Response. Finally, the DPH was held on November 1, 2023, November 2, 2023, November 8, 2023, November 9, 2023, and November 17, 2023, during which both parties appeared. [7]
At the DPH, the Parent submitted seven exhibits, all of which were admitted into evidence. The Parent presented two witnesses: the Psychologist and Parent. The District submitted six exhibits, all which were admitted into evidence pursuant to stipulation between the parties. The District presented one witness, the CPSE Administrator. A list of the documentary evidence in this proceeding is appended to this Decision and Order.
JURISDICTION
A decision in this matter is being rendered, pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law Art. 89 § 4404 et seq., and its implementing regulations, 8 NYCRR § Part 200.
LEGAL FRAMEWORK
General
Under the IDEA, a free and appropriate public education (“FAPE”) is offered to a student when: (a) the DOE complies with the procedural requirements set forth in the IDEA, and (b) the individualized education plan (“IEP”) developed by its Committee on Special Education (“CSE”) through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits.[8] If a procedural violation is 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. [9]
The IDEA directs that, in general, an Impartial Hearing Officer’s (“IHO”) decision must be made on substantive grounds based on a determination of whether the student received a FAPE.[10] A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” [11]
To show a denial of a FAPE based on a failure to implement an IEP, a party must establish more than a de minimus failure to implement all elements of the IEP, and instead must demonstrate that the school board or other authorities failed to implement substantial or significant provisions of the IEP.[12] Courts have held that it must be ascertained whether the aspects of the IEP that were not followed were substantial, or in other words, “material.” [13]
In actions brought under the IDEA alleging a denial of FAPE, “the court shall grant such relief as the court determines is appropriate,” limited only by the restriction that “the relief is to be appropriate in light of the purpose of the Act.”[14] Equitable considerations are relevant in fashioning relief, and the court enjoys broad discretion.[15] Although an award of damages is not available under the IDEA, 16 “a court may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies.” [17]
School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement.[18] The standard required is a preponderance of the evidence.[19] Since this case does not involve a unilateral placement or tuition
16 See Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 486 (2d Cir. 2002) reimbursement claim, the DOE has the burden of proof on all issues. Preschool
The IDEA, specifically Part C, requires school districts to provide early intervention services for infants and toddlers with disabilities.[20] The IDEA additionally requires that children, who participate in early intervention programs under Part C of the IDEA, have an IEP created for them under Part B, by their local school district when they turn three-years-old. [21] New York State (“NYS”) Education Law § 4410(1)(i) defines a preschool student with a disability as a preschool child “who is eligible to receive preschool programs and services, is not entitled to attend the public schools of the school district of residence pursuant to § 3202 of the Education Law and who, because of mental, physical, or emotional reasons, has been identified as having a disability and can receive appropriate educational opportunities from special programs and services approved by the department.”[22] In accordance with the NYS Education Law, the New York Codes, Rules, and Regulations (“N.Y.C.R.R.”) enumerates a school district’s duties as related to educational programs for preschool students with disabilities. [23] Students who turn three-years-old, are eligible for preschool programs and services on January 2nd of that year if their birthday falls before July 1st, or they will become eligible on July 1st of that calendar year.[24] The Committee on Preschool Education (“CPSE”) is defined as “a multidisciplinary team established in accordance with the provisions of section 4410 of the Education Law,” and is tasked with determining eligibility for special education services for a child transitioning from early intervention services.[25] The CPSE will convene to review a preschool student’s evaluations, educational records, and any other appropriate information, provided to them by an agency charged with responsibility of the student, and develop a preschool special education program and services.[26] The CPSE determines whether the preschool student shall receive “(i) related services only; or (ii) special education itinerant services only; or (iii) related services in combination with special education itinerant services; or (iv) a half-day preschool program as defined in section 200.1(u) of this Part; or (v) a full-day preschool program as defined in section 200.1(p) of this Part.”[27] Prior to recommending the provision of special education services in a setting of preschool children with disabilities, the CPSE “shall first consider providing special education services in a setting where age-appropriate peers without disabilities are typically found.” [28]
FINDINGS OF FACT & DECISION
I. FAPE
At impartial due process hearings in New York, the burden is on the District to prove that they provided Student with a FAPE.[29] A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits.[30] The Supreme Court has found that “[a] reviewing court may fairly expect those authorities [school district staff] to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.” [31] a) The DOE Failed to Comply with the IDEA’s Procedural Requirements.
i) The CPSE team at the March 2023 IEP and August 2023 IEP meetings was not duly constituted.
When addressing the District’s procedural violations, the Parent argued that the District did not duly constitute a CPSE IEP team at the March 2023 meeting.[32] The District maintains that the DOE provided the Student with a FAPE and that the Student’s IEPs were procedurally and substantively appropriate for the 2023-24 school year. [33]
The N.Y.C.R.R. specifies that “[e]ach board of education or board of trustees shall appoint: (2) committees on preschool education in accordance with the provisions of Education Law, section 4410 to implement the provisions of section 200.16 of this Part.”[34] The CPSE shall include, but not be limited to: (i) the parents of the preschool child; (ii) not less than one regular education teacher of the child whenever the child is or may be participating in the regular education environment; (iii) not less than one special education teacher of the child, or, if appropriate, not less than one special education provider of the child; (iv) a representative of the school district who is qualified to provide or supervise special education and who is knowledgeable about the general education curriculum and the availability of preschool special education programs and services and other resources of the school district and the municipality. The representative of the school district shall serve as the chairperson of the committee; (v) an additional parent member of a child with a disability residing in the school district or a neighboring school district and whose child is enrolled in a preschool or elementary level education program, if specifically requested in writing by the parent of the student or by a member of the committee at least 72 hours prior to the meeting; (vi) an individual who can interpret the instructional implications of evaluation results, provided that such individual may also be the individual appointed as the regular education teacher, the special education teacher or special education provider, the school psychologist, the representative of the school district or a person having knowledge or special expertise regarding the student when such member is determined by the school district to have the knowledge and expertise to fulfill this role on the committee; (vii) other persons having knowledge or special expertise regarding the child, including related services personnel as appropriate, as the school district or the parents shall designate. The determination of knowledge or special expertise of such person shall be made by the party (parents or school district) who invited the individual to be a member of the committee on preschool special education; (viii) for a child in transition from early intervention programs and services, at the request of the parent, the appropriate professional designated by the agency that has been charged with the responsibility for the preschool child; and (ix) a representative of the municipality of the preschool child's residence, provided that the attendance of the appointee of the municipality shall not be required for a quorum.
(viii) for a child in transition from early intervention programs and services, at the request of the parent, the appropriate professional designated by the agency that has been charged with the responsibility for the preschool child; and (ix) a representative of the municipality of the preschool child's residence, provided that the attendance of the appointee of the municipality shall not be required for a quorum.
At the DPH, the CPSE Administrator stated that in March of 2023, they attended and participated at the Student’s CPSE IEP meeting as the administrator and district representative, along with the Parent.[35] They testified that the Student’s teacher and representative from the agency that conducted the Student’s turning-three evaluations were “not necessary to participate in the meeting.”[36] Additionally, none of the Student’s medical professionals attended the March 2023 CPSE IEP meeting.[37] At the Student’s August 2023 CPSE IEP meeting, the CPSE Administrator testified again that the only individuals present were themselves and the Parent.[38] The CPSE Administrator also stated that “when we schedule meetings, the required party at the meeting is the parent. Anyone above and beyond that is up to the discretion of the Parent, and not necessary really to the meeting.”[39] During one of the Parent Representative’s re-directs, the CPSE Administrator testified that, “I am the committee. We operate in of ourselves and the parties of the meeting. There is nobody to check or required to check on our recommendations.” [emphasis added].[40] The Student’s IEPs both note that the only individuals present at the CPSE IEP meetings were only the CPSE Administrator and the Parent. [41]
The IDEA[42] and NYS regulations[43] clearly specify which individuals are required to participate as part of the IEP team. At the March 2023 CPSE IEP meeting, the CPSE team was missing a regular education teacher[44] for the Student, despite the Student being recommended by the CPSE for a general education setting and for 100% participation in “appropriate activities with age-appropriate nondisabled peers.”[45] There also was no special education teacher or special education provider for the Student 46or any individuals with “knowledge or special expertise regarding the child, including related services personnel as appropriate.”[47] The CPSE Team at the March 2023 CPSE IEP meeting was not duly constituted. For the August 2023 CPSE IEP meeting, the CPSE team was missing a regular education teacher, a special education teacher, and any individuals with knowledge or special expertise of the child, including related services personnel. There is no evidence in the record that the Parent requested anyone from the early intervention agency to appear for the March 2023 or August 2023 CPSE IEP meeting,[48] and I find that this
46 See 8 N.Y.C.R.R 200.3 (a)(2)(iii). individual was not required be a part of the CPSE team at that meeting. However, I find that the hearing record supports a finding that the CPSE teams that convened for the Student’s CPSE IEP meetings in March and August of 2023 for the 2023-24 school year were not duly constituted in violation of the IDEA and the NYS regulations. As a result, the unduly constituted CPSE teams impeded the Student’s right to a FAPE, as several crucial members were missing who could have contributed to a meaningful discussion in consideration of the Student’s special education program and placement. As further discussed below, the improperly constituted CPSE team also significantly impeded the Parent’s opportunity to participate in the decision-making process regarding the provision of a FAPE to the Student.
ii) The CPSE predetermined the Student’s 2023-24 special education program, services, and placement.
Under 34 C.F.R. § 300.327, “each public agency must ensure that the parents of each child with a disability are members of any group that makes decisions on the educational placement of their child.”[49] Additionally, 34 C.F.R. § 300.501(b) states that, “[t]he parents of a child with a disability must be afforded an opportunity to participate in meetings with respect to – (i) [t]he identification, evaluation, and educational placement of a child; and (ii) [t]he provision of FAPE to the child.”[50] “Each public agency must ensure that a parent of each child with a disability is a member of any group that makes decisions of the educational placement of the parent’s child.” [51]
“While the CSE is required to consider certain evaluative information from the child's parents and teachers (or related service providers), the IDEA does not explicitly require that it consider all potentially relevant evaluations from the child's doctor.”[52] Moreover, “although a CSE is required to consider reports from private experts, it is not required to follow all of their recommendations.”[53] “The initial procedural inquiry in an IDEA case is no mere formality, as adequate 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.”[54] However, not every procedural error will render an IEP inadequate.[55] Instead, “[r]elief is warranted only if the alleged procedural inadequacies impeded the child's right to a FAPE, significantly impeded the parents' opportunity to participate in the decision making process regarding the provision of a FAPE to the parents' child, or caused a deprivation of educational benefits.”[56] When determining whether a district complied with IDEA's procedural requirements, the court must focus on whether the parents “had an adequate opportunity to participate in the development” of their child's IEP.[57] If a procedural violation is alleged, an IHO may find that a student did not receive a FAPE if one of the above described the procedural inadequacies took place.
The Parent argued that the CPSE predetermined the Student’s recommended program, which “precluded the Parent from fully participating in the creation of the educational program.”[58] The District maintains that the Student was timely and comprehensively evaluated, that the CPSE Administrator reviewed the Student’s evaluative data with the Parent and considered the Parent’s input and concerns.[59] The District also presented testimony from the CPSE Administrator, who testified as to their participation in the CPSE IEP meetings for the Student, what documentation was reviewed and discussed at the meetings, and why the recommended program and placement were appropriate. [60] The CPSE Administrator testified at the DPH that the CPSE, which “team” consisted of themselves, determined the Student’s recommended program and placement at both CPSE IEP meetings for the 2023-24 school year.[61] For the March 2023 CPSE meeting, the CPSE Administrator testified that they reviewed and interpreted evaluative material from the early intervention agency and that they had sufficient data to make a recommendation for the Student’s special education services.[62] The Parent testified that the March CPSE IEP meeting was inconveniently scheduled by the DOE for the early morning of the Jewish Holiday “Purim,” which prevented the Student’s teachers and providers from attending the meeting.[63] The Parent attempted to reschedule the meeting, but was told there were no other meeting dates available.[64] The Parent testified that the CPSE Administrator “refused to listen to any of my input about my child” and “did not take note of any of my concerns and information for [the Student].”[65] At the meeting, the Parent believed that CPSE Administrator “had already decided what she would be giving to [the Student] and was unwilling to even consider any new information about my child.”[66] The Parent attempted to explain why a group setting for SEIT and related services was not appropriate, as the Student does not socialize or interact with other children, but the CPSE Administrator “summarily dismissed my concerns and refused to consider any individual services.”[67] The Parent testified that, “I clearly and repeatedly expressed my disagreement with the offered services and I stated that the limited program offered did not meet [the Student’s] needs.” At the August 2023 CPSE IEP meeting, the CPSE Administrator met with the Parent to add a paraprofessional for 52 weeks to the IEP, but did not add any goals for the paraprofessional or modify the Student’s present levels of performance or overall goals.[68] At the August 2023 CPSE meeting, the CPSE Administrator stated that the Parent “said she thinks [the Student] needs more. And to quote, she said she thinks that the team feels like [they] need[] more, more support….[they] need[] to be in a small classroom.”[69] The Parent testified that she “advised the CPSE Administrator about [the Student’s] struggles and regression….and asked her to consider a possible special placement.”[70] The CPSE Administrator stated that they explained to the Parent that “based on the information of the initial packet and the data I have in front of me, I can’t make a different recommendation without new data with new information.”[71] The CPSE Administrator testified that even though the Parent had provided additional documentation after the August 2023 CPSE IEP meeting, the CPSE would not reconvene or modify the Student’s recommended program or services.[72] After the August 2023 CPSE meeting, the Parent provided a physician letter which stated that the Student was diagnosed with mitochondrial disease and eosinophilic esophagitis.[73] The Parent also provided the CPSE Administrator with a note from the Student’s special instructor from their early intervention services.[74] However, the CPSE Administrator testified that “until we have a child in an actual classroom and we have clinicians or providers that can share additional data to confirm that this condition is impacting the child’s ability to obtain an education, there is no further action needed on my part.”[75] Additionally, the CPSE Administrator testified that “the child has to be in the classroom receiving the services recommended by providers who can provide me with objective data to show that there’s a need for either a change in the recommendation or additional services.”[76] The Parent attempted to find a special education placement for the Student on her own, but was unable to, as they require an order or DOE “authorization.” [77] In October of 2023, the CPSE Administrator testified that they received an email from the Parent containing an evaluation conducted by a private Psychologist and reviewed it.[78] The CPSE Administrator did not reconvene the CPSE, as “the evaluation was conducted for the sole purposes of determining eligibility for OPWDD services, which has nothing to do with the [DOE].”[79] The CPSE Administrator created a prior written notice in response to the document, “explaining to the mother why there will be no change in the recommendation based on the information presented,” even though “the only new information presented was that the [S]tudent now has a diagnosis of autism spectrum disorder.”[80] The CPSE Administrator additionally stated that this new diagnosis of Autism “does not preclude the [S]tudent from participating in a general education program, unless the [S]tudent’s in that program and information from that classroom teacher and providers say otherwise.” [81] As described above, the hearing record supports a finding that the DOE predetermined the Student’s special education program, related services, and placement, which significantly impeded the Parent’s right to participate in the decision-making process regarding the creation of such special education program, related services, and recommended placement, for the Student for the 2023-24 school year. The Parent provided crucial information regarding the Student that was blatantly disregarded by the CPSE Administrator at each IEP meeting, as the CPSE Administrator herself solely determined the special education program, services, and placement and whether it needed to be modified. In August, when the Parent attempted to provide the CPSE with a provider letter and physician letter for a reconvene and review of the Student’s program and placement, the District reviewed them and denied to reconvene on the basis that the DOE could only rely on information that came from DOE evaluators or teachers in the Student’s classroom. In October, when the Parent again attempted to provide the CPSE with a private evaluation, the CPSE Administrator reviewed it and found that there was no need to make changes to the Student’s program or placement, even though the Student was newly diagnosed with Autism, and because the documentation was merely evaluative material that the Parent used for applying to the NYS Office of Persons with Developmental Disabilities (“OPWDD”).[82] The IDEA and NYS regulations specify that a team, which includes the parent, is required to convene to participate and discuss the identification, evaluation(s), program, services, and educational placement of a child with a disability and to consider the Parent’s input with respect to the above. In recommending a special education program and placement for this Student, the CPSE acted in a manner that can only be described as one-sided. The CPSE repeatedly refused to consider any information or documentation from the Parent, or from any individuals who medically treated, evaluated, or provided services to the Student. The CPSE only considered DOE documentation and nothing more.
Overall, the District’s procedural violations of the IDEA and NYS regulations impeded the Student’s right to a FAPE for the 2023-24 school year. First, the District failed to convene a CPSE team with the statutorily required members for both the March and August 2023 CPSE IEP meetings. Second, the District predetermined the Student’s special education program, services, and placement, which prevented the Parent from having an opportunity to participate in the decision making process regarding the provision of a FAPE to the Student. As such, the District failed to provide the Student with a FAPE for the 2023-24 school year. b) The DOE’s 2023-24 IEPs Failed to Comply with the IDEA’s Substantive Requirements.
Although I have already made a finding that the District failed to provide the Student with a FAPE for the 2023-24 school year based on the above-described procedural violations and could conclude my findings as related to FAPE, I will additionally conduct an analysis as to whether the District adhered to the IDEA and NYS regulation’s substantive requirements. At the DPH, the District Representative maintained that the DOE substantively provided the Student with a FAPE for the 2023-24 school year.[83] The District explained that the Student’s turning-three CPSE IEP meeting was timely held on March 7, 2023, to determine the Student’s eligibility for special education services.[84] The District explained that the “IEP team” convened to review and discuss the recently completed evaluations of the Student and “had sufficient data to make their recommendations.”[85] The District also argued that the Parent’s psychological evaluation, which they offered to the CPSE in October of 2023 for a reconvene and modification of the IEP, should be precluded, as this data was not available to the District at the time of the IEP meetings. [86] In the March 2023 CPSE IEP, the Student was recommended for a 10-month, bilingual Yiddish, related services only program consisting of the following: Special Education Itinerant Teacher Services (“SEIT”) (Yiddish) in a group of 3 students for 3 hours per week, and the following related services: speech-language therapy (“SLT”), in a group of 2, for 2 times per week for 30 minutes each session; occupational therapy (“OT”), in a group of 2, for 2 times a week for 30 minutes each session; and a 1:1 classroom health paraprofessional for 5 times per week (for a total of 360 minutes).[87] The location for provision of the services an “Early Childhood Program selected by Parent” in a general education setting.[88] The District argued that the DOE’s recommended program was appropriate, as it was “the least restrictive environment for the student, notwithstanding the [S]tudent’s significant medical needs, and given the data available at the time of the meeting.” [89] The CPSE later reconvened at the Parent’s request on August 7, 2023, and recommended the same 10-month, bilingual Yiddish, related services only program for SEIT (Yiddish) in a group of 3 for 3x60, and the following related services: OT in a group of 2 for 2x30, SLT in a group of 2 for 2x30, and added a 1:1 classroom health paraprofessional 5x/week for 360 minutes for 52 weeks.[90] The CPSE did not modify the Student’s placement in a general education setting. [91] The Parent argued that the District failed to provide the Student with a FAPE for the 2023-2024 school year under Part B of the IDEA before the school year had even commenced.[92] The Student previously received early intervention services in a 6:3 playgroup setting as a 2-year-old.[93] According to the Parent, at that time, it was evident that the Student had medical challenges and required a high teacher to student ratio.[94] However, in preparation for the Student’s turning-three CPSE IEP meeting, the District only conducted the following evaluations: a psychological evaluation, psychoeducational evaluation, SLT evaluation, and OT evaluation, which evaluation reports all contained boilerplate language and did not fully assess the Student in their areas of concern and disabilities.[95] The District did not observe the Student outside of a 6:3 environment, did not account for their “medical needs, severe social inconsistencies, and severe behavioral temperament.”[96] The March 2023 CPSE IEP recommended a limited and inappropriate program that was developed over Parent’s objections, as the IEP “does not even contain goals for the SEIT provider to work on and does not explain how the [S]tudent will function in a group of 2, when they cannot function in a typical group setting.”[97] At Parent’s request, the CPSE reconvened in August of 2023 to address the Student’s paraprofessional needs, but refused to address the Parent’s concerns regarding the recommended program or request for more in-depth evaluations.[98] The Parent argued that the Student’s August 2023 CPSE IEP “were also deficient as to the speech and OT recommendation.”[99] The Student’s SLT and OT goals “were not adequate to meet the child’s respective deficits in those areas.”[100] The Parent maintains that the District put forth no evidence supporting their recommendation for group SLT and OT in the March and August 2023 CPSE IEPs. [101] Further, the Parent argued that the Student’s placement in a general education setting was inappropriate.[102] At the August 2023 CPSE IEP meeting, the Parent attempted to provide the CPSE with information about how the Student could not function in a mainstream setting over the summer and request a change of placement for the 2023-24 school year to a special education setting, but the CPSE refused to modify the placement.[103] After the August 2023 CPSE IEP meeting, the Parent reached out to the CPSE twice for a reconvene regarding modifying the Student’s program and placement, but the District refused to reconvene. [104] CPSE Administrator Testimony At the DPH, the CPSE Administrator testified that they reviewed the Student’s evaluations[105] and discussed them with the Parent at the March 2023 CPSE IEP meeting.[106] The March 2023 CPSE IEP meeting was the Student’s turning-three IEP meeting to determine Special Education eligibility.[107] The CPSE Administrator reviewed an educational evaluation (conducted on 1/11/2023), psychological evaluation (conducted on 1/18/2023), OT evaluation (conducted on 2/2/2023), speech-language evaluation (conducted on 1/31/2023), and a social history evaluation (conducted on 1/9/2023).[108] The CPSE Administrator’s opinion is that the CPSE “team” had sufficient data to make their recommendations, as “the New York City Public Schools aims to support all students in the least restrictive environment.”[109] The CPSE Administrator recommended a general education setting for the Student, as the Student “did not demonstrate significant behavioral nor safety concerns, demonstrated age-appropriate learning potential, age appropriate motoric functioning, below average social emotional skills, and moderate communication delays….”[110] The CPSE Administrator believes that the Student would be better served “in an environment with typically developing peers.” [111] In August of 2023, the CPSE reconvened to add an Office of School Health paraprofessional 5x/week for 52 weeks.[112] The CPSE Administrator testified that this recommendation was appropriate “as it is the least restrictive environment appropriate given the data available at the time of the meeting.”[113] The CPSE Administrator’s recommendations were based on the Student’s evaluations, which stated that the Student’s overall cognitive ability fell in the below average range; had communication skills in the poor range, motor skills in the below average range, social emotional skills in the below average range, and adaptive/daily living skills (“ADL”) skills in the below average range; moderately reduced language skills, as well as articulation delays that were grossly developmental, and oral deficits; was mildly delayed with fine motor skills; and had significant sensory processing delays.[114] The Student’s classroom observation noted that the Student didn’t participate in group activities, had difficulty expressing themselves with verbal clarity, was hypersensitive to movement, textures, self-regulation, but did not interact with their peers or interact in class discussions without prompting.”[115] The CPSE Administrator stated that there were “no significant behavioral or safety concerns were noted during the classroom observation.” [116] The CPSE Administrator explained that a general education setting with the support of a SEIT was appropriate for the Student, “as it provides specialized individualized or group instruction directly to the [S]tudent and/or provide consultation to the child’s teacher to adjust the learning environment and/or modify instructional needs of a preschool student with a disability who attends an early childhood program (i.e. daycare, preschool program or head start program).”[117] The SEIT would also coordinate with the related service provides “to generalize skills taught in therapy sessions to the classroom environment” and facilitate “age-appropriate social interaction and development of pre-academic concepts….”[118] OT was recommended to “support emotional/sensory processing delays with a sensory diet.”[119] SLT was recommended to “support vocabulary acquisition, functional use of language, social pragmatic skills, and oral motor/feeding delays.”[120] The only parental input noted by the CPSE Administrator in her testimony and in the IEPs are that the “[the Student] is a medically involved youngster who is struggling socially.”[121] The Student’s management needs “are to provide the [Student] with support in [their] areas of deficit and incorporate management needs reported to benefit [them] in the classroom.”[122] Since the Student has an Eosinophilic Esophagitis diagnosis, the CPSE Administrator recommended a 1:1 health paraprofessional for the entire school day.[123] On cross-examination, the CPSE Administrator testified that the early intervention evaluations come with goals, but that they were able to adjust, delete, or modify the goals “as per the established needs of the child.”[124] There were speech language goals that were recommended and created in the original evaluation packet.[125] There were no SEIT goals in the IEPs because “when they’re working with the child, they will figure out what goals they need to address.” [126] Parent Testimony The Parent testified that the Student has “extensive and intensive medical needs,” as they are “diagnosed with many medical conditions which effect and impact [their] functioning in all areas of [their] life.”[127] The Student is diagnosed with “Eosinophilic Esophagitis (“EoE”), Dysphagia, Autonomic Dysfunction, Severe Allergies, …Mitochondrial Disease” and Autism. [128] The Student is constantly in pain, suffers from conductions that do not allow them to eat normally, and is living off of formula.[129] The Student’s medical conditions affect their ability to learn and develop appropriately, as they struggle with social-emotional skills, are stubborn, aggressive, throws temper tantrums, and lack control of their behavior.[130] The Student often acts out, cannot focus or pay attention when in a large group, and cannot follow directions unless redirected or guided.[131] The Student has delayed verbal skills and lacks verbal clarity, has delayed feeding skills in that they cannot feed themselves without assistance, and struggles with their basic motor and fine motor skills.[132] In the Student’s 6:3 special education day care setting, the Student “was able to thrive and learn, albeit in a limited way.”[133] The Student previously received special instruction, SLT, and feeding therapy as part of early intervention services.[134] The Student was evaluated in this setting for their turning-three CPSE IEP meeting.[135] At the March 2023 CPSE IEP meeting, the Parent explained to the CPSE Administrator that the Student could not function in a group setting for related services, but the CPSE Administrator refused to listen.[136] The Parent testified that the March 2023 IEP was inappropriate as they fail to address how the Student’s medical needs affect their ability to learn and develop appropriately.[137] Additionally, the Student requires more than 2 sessions of SLT and OT each. [138] During the Summer of 2023, the Student attended a private mainstream day camp outside of the City of New York.[139] While that private day camp was not a DOE placement, the Parent informed the CPSE that the Student could not function in a mainstream setting and regressed. [140] The Student threw tantrums, was aggressive towards other children, didn’t like to interact with other children, would not socialize or communicate, was sometimes lethargic and would lay unresponsively.[141] The Parent requested that the CPSE reconvene in August to add a paraprofessional to the Student’s IEP.[142] During this meeting, the Parent explained the difficulties the Student had in a mainstream setting and requested a special education placement for the Student.[143] According to the Parent, the CPSE Administrator “became very upset at me and told me that she will absolutely not consider any other placement for [the Student].”[144] The CPSE Administrator told the Parent that the Student would have to first receive SEIT and related services for six months before they would consider any other placement.[145] The Parent later provided the CPSE Administrator with a letter from the Student’s doctor and tried to locate a preschool for the Student in light of their medical and behavioral needs, but was not successful.[146] The CPSE Administrator again declined to change the Student’s placement.[147] The Parent also asked for a re-evaluation, which they were denied.[148] The Parent then placed the Student back in the Day Program, which does not offer educational program, but is just a day care center for medically fragile children.[149] The Student is not receiving any special education services at the Day Program.[150] The Parent requested a special class setting for the Student, an increase in related services on an individual basis, and a health paraprofessional. [151]
The Student’s special education program overall does not adequately address the Student’s academic needs despite the Student’s known intellectual delays, as well as their delays with ADL skills, fine and gross motor skills, speech, and feeding. It also does not address the Student’s behavioral issues. The Student’s recommended program would not have allowed for the Student to make meaningful progress in the recommended general education setting in light of their disabilities and achieve the goals recommended in their IEP. Although the CPSE Administrator explained they recommended the program and related services specified in the IEPs based on their review of the DOE’s evaluations, they failed to take into consideration any of the Parent’s input regarding the Student at the two IEP meetings. Further, the evaluations that the District relied on all noted that the Student had intellectual delays,[152] poor expressive language and lacked verbal clarity,[153] sensory issues, socialization issues, difficulties with gross motor skills,[154] delays with ADL skills,[155] and behavioral issues.[156] The Parent expressed disagreement multiple times with services being provided in a group setting because the Student could not function in a group setting with other children. The CPSE Administrator provided no testimony as to why they recommended the specific related services, frequency of such related services, or group setting, other than they reviewed the DOE’s evaluations and that was their recommendation. The District ignored the Parent’s contributions and the Student’s noted delays in their own evaluations and continued to recommend the same program over and over again.
The Parent also expressed disagreement with the recommended placement because the Student was moving from a special class Day Program to a general education setting. The District provided no explanation other than the SEIT could provide specialized instruction in a general education setting directly to the Student and that they had to consider the least restrictive environment. The Parent provided the District with information at the CPSE IEP meetings and later, provided recommendations from a related services provider and physician’s assistant as to why a special class setting was necessary for a Student with such severe medical needs that directly impacted their day to day life and education. In the August CPSE IEP meeting and at the DPH, the District did not provide an explanation for why they considered a special setting and rejected it. The District simply reviewed it and ignored all of the data and information the Parent presented and later refused to reconvene. Although the private evaluation was not provided to the District until after the CPSE IEP meeting in August, the private evaluation newly diagnosing the Student with Autism was somehow still not enough for the District to even consider reconvening and discussing other options for this Student. I will further note that a “wait-and-see” approach as to how the Student functions in the general education setting, as the District suggested to the Parent, does not further the intentions of the IDEA.
Overall, the District, through evidence and testimony, failed to explain how the Student could meaningfully benefit from the recommended special education program, related services, and placement in light of their disabilities. As such, I find that the District did not meet its burden in establishing that they provided the Student with a FAPE for the 2023-24 school year, as Student’s IEPs were not reasonably calculated for the Student to obtain an educational benefit.
II. Non-Public School Placement/Least Restrictive Environment (“LRE”) a) The CPSE Should Reconvene to Refer the Student to a NYSED-Approved Day Program in a 9:1:2 Special Class Setting, as it is an Appropriate Placement for the Student that Would Allow the Student to Receive Educational Benefits in Light of their Disabilities. CPSE Reconvening to Refer a NPS Placement
Generally, an award of prospective relief in the form of IEP amendments and the prospective placement of a student in a particular type of program and placement, under certain circumstances, has the effect of circumventing the statutory process, pursuant to which the CSE is tasked with reviewing information about the student's progress under current educational programming and periodically assessing the student's needs.[157] However, concerns about circumventing the CSE process arise most prominently in matters where the school year challenged has ended and, in accordance with its obligation to review a student's IEP at least annually, the CSE would have already convened to produce an IEP for the following school year. [158]
Additionally, while prospective placement might be appropriate in rare cases[159] the pitfalls of awarding a prospective placement have been noted in multiple State-level administrative review decisions, including that where a prospective placement is obtained by the parents through the impartial hearing, such relief could be treated as an election of remedies, where the parents assume the risk that future unforeseen events could cause the relief to be undesirable. [160] Least Restrictive Environment
“The IDEA mandates that, ‘[t]o the maximum extent appropriate, children with disabilities . . . are educated with children who are not disabled, and special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.’”[161] Even so, the presumption in favor of mainstreaming must be weighed against the importance of providing an appropriate education to students with disabilities.[162] A fact-specific inquiry is necessary to determine “whether both of those goals have been optimally accommodated.” [163] In determining whether a child with a disability has been placed in the LRE, the Second Circuit has adopted a two-pronged test: (1) whether education in the regular classroom, with the use of supplemental aids and services, can be achieved satisfactorily for a given child and, (2) if not, then whether the school district has mainstreamed the child to the maximum extent appropriate. [164] For the first prong, the following should be considered: (a) whether the school district has made reasonable efforts to accommodate the child in a regular classroom; (b) the educational benefits available to the child in a regular class, with appropriate supplementary aids and services, as compared to the benefits provided in a special education class; and (c) the possible negative effects of the inclusion of the child on the education of other students in the class. [165] In the instant matter, the Parent requested that an order be issued for the Student to be placed in a 9:1:2 special education class setting.[166] The Parent maintains that the current mainstream setting, which day care program was to be selected by the Parent, is inappropriate for the Student.[167] Although the requested 9:1:2 NYSED Day Program is more restrictive, the Parent argues that this “specialized restrictive placement…is designed and focused towards children” like the Student.[168] The Student has extensive disabilities and medical needs, therefore “[they] cannot be grouped with other more typical children” and be expected to progress appropriately.”[169] The Parent additionally requests that the Student’s related services be modified to an individual setting rather than a group setting, and for the Student to receive SLT and OT each 3x/week for 30 minutes. [170] The District maintains that the CPSE recommendation of a general education setting for the Student is appropriate, as the CPSE Administrator had sufficient evaluative data to recommend such placement.[171] The District also argued that the Parent did not meet their burden with respect to the requested NYSED-approved 9:1:2 special education placement and that it is the job of the local CPSE to implement an IEP and select a placement.[172] At the DPH, the District summarized the CPSE Administrator’s testimony, which was that “even with the [Student’s] significant medical issues, the data from the evaluations and assessments available at the time did not support a more restrictive program.”[173] The District argued that “[t]he CPSE does not recommend specific schools,” and “[p]arents who end up placing their children in public school cannot later use evidence that their child did not make progress under the IEP in order to show that it was deficient from the outset. In determining the adequacy of an IEP, both parties are limited to discussing the placement and services specified in the written plan and therefore reasonably known to the parties at the time of the placement decision.”[174] The District additionally argued that the Parent’s evidence is insufficient to challenge the DOE’s recommendations.[175] According to the District, “the [S]tudent’s pediatrician, teachers, and the [S]tudent’s mother are not qualified to provide a credible challenge to the CPSE’s recommendations, and their recommendations are not based on any type of appropriate assessment data.”[176] The District also maintained that the data and information available at the time of the IEP meetings did not support a finding that the Student had autism and that an autism diagnosis does not preclude the Student from participating in a general education program.[177] Finally, the District argued that it would be inappropriate for an IHO to order a specific placement, as “it would circumvent the rule given local school districts…for implementing IEPs under [NYS] regulations” and case law supports “IHOs should not award students prospective placements in future IEPs because that is the job of local CSEs.” [178] CPSE Testimony The CPSE Administrator testified that the DOE “aims to support all students in a [LRE].”[179] “A more restrictive setting would separate [the Student] from [their] typically developing peers, further making it challenging for [them] to overcome [their] current deficits.”[180] The Student additionally “did not demonstrate significant behavioral nor safety concerns, demonstrated age-appropriate learning potential, age appropriate motoric functioning, below average social emotional skills, and moderate communication delays” and “would be best served in an environment with typically developing peers.”[181] Given the data available to the CPSE Administrator at the time of the August 2023 CPSE IEP meeting, a mainstream recommendation would have been the least restrictive environment.”[182] This setting also is appropriate with the support of a SEIT, who could provide specialized individualized or group instruction directly to the to the Student, provide consultation to the teacher to adjust the learning environment, modify the instructional methods, and coordinate with related service providers..[183] At the DPH, the CPSE Administrator testified that at the August 2023 CPSE IEP meeting, the Parent requested a smaller class size for the Student and the CPSE Administrator did not modify their recommendation based on the evaluative data before them.[184] The Parent subsequently sent the CPSE Administrator documentation twice and the CPSE Administrator did not find a need to reconvene to modify the Student’s placement.[185] The CPSE Administrator testified that “we do not make recommendations solely on the basis of like a medical diagnosis, but more so based on the negative impact it has established on that child’s performance in the classroom.” The CPSE Administrator required that the Student be in the recommended setting while receiving services, in addition to evidence that the Student is not functioning in the current the setting in order for the CPSE to consider making a change.[186] The CPSE Administrator testified that they were familiar with the NYSED Day Program placement the Parent is requesting and that the CPSE could refer students to a NYSED-approved day care setting that is a mainstream or a special class setting.[187] The CPSE Administrator was asked why the current Day Program was appropriate for the Student, and responded that the Student is currently not at the Day Program according to the Parent and is not receiving any related services because the Parent was nonresponsive to emails from the CPSE. [188] Parent Testimony The Parent testified that a mainstream setting is not appropriate for the Student and that they require a more restrictive setting due to their medical needs, which impact their ability to learn.[189] The Parent placed the Student over the summer in a mainstream day camp and informed the CPSE that the Student was unable to function in that setting, as they regressed, would not socialize with other children, was aggressive towards other children, threw tantrums, and required constant monitoring from the Parent so that they would not harm themselves.[190] The CPSE Administrator refused to modify the Student’s placement to a special class and the Parent’s “only option was to put [them] back in [the Day Program].”[191] The Parent additionally took the Student to a private psychologist for an evaluation, during which the Student was diagnosed with Autism. [192] The Parent and the Student’s related service providers all recommend that the Student be placed in a special class setting.[193] The Student’s SEIT and SLT provider requested in writing that the CPSE Administrator to reevaluate the recommended program, as the Student was not ready to be integrated into a general education setting and was not receiving enough SLT services.[194] The Student throws tantrums and is easily frustrated when they cannot express themselves, is easily set off, will kick, throw, hit, grab, and pinch others, refuses to engage with others, has severe allergies, low oral motor tone, and a feeding disorder.[195] The provider additionally wrote that the Student could not interact in group activities in a mainstream setting and required individual direction, even when they were in their 6:3 day care setting.[196] The provider recommended for increased SEIT services and SLT 4x60/week.[197] The Student’s treating Physician’s Assistant wrote to the CPSE Administrator and stated in sum and substance, that the Student was diagnosed recently in August with mitochondrial disease, in addition to EoE, allergies, and their other disabilities.[198] The Student suffers from EoE and as a result had difficulty eating, cannot eat solid foods, has temperature dysregulation, low sugar levels, is in pain, and can only have formula.[199] The Student is also noted to have a short attention span, is aggressive, has difficulty listening, throws things, and is difficult to soothe.[200] The Student is noted to also be “unable to keep place with [their] peers both cognitively, verbally, socially, physically, and emotionally.”[201] It is the Physician’s Assistant’s opinion that the Student will regress if they attends a mainstream setting, as it is not equipped for the Student’s needs, and requires a small class placement. 202 The Parent additionally presented at hearing a letter from the NYSED Day Program’s Educational Director, which stated in sum and substance, that their program and 9:1:2 special class setting was appropriate to meet the Student’s individual needs, would allow the Student to acquire foundational skills that would allow them access to their academic and social environment, with an opportunity to progress to a mainstream environment in the future.[203] At the DPH, the Parent testified that the Educational Director of the NYPS Day Program met with the Student for two hours to observe and assess them.[204] According to the Parent, the Educational Director expressed disagreement with the Student only receiving 3 hours of SEIT and recommended educational setting.[205] From the hospital where the Student was admitted, the Parent testified that the Student did attend the Day Program, but because they were failing to thrive, they were in and out of the hospital. [206] Psychologist The Parent took the Student to the Psychologist in September of 2023 for an independent evaluation, which was conducted in Yiddish.[207] The Psychologist testified by affidavit that they are a licensed clinical psychologist and operate a private practice, where they conduct psychological and neuropsychological evaluations.[208] The Student has highly involved medical needs, has significant behavioral and emotional difficulties, does not make eye contact, required lots of positive reinforcement, and did not react in line with typical social expectations for their age.[209] A test was administered to evaluate the Student’s intellectual and adaptive abilities, and scored in the low average range, the low average range for nonverbal intelligence quotient, and borderline impaired/delayed range for verbal intelligence quotient.[210] The Student’s knowledge was assessed to be in the borderline impaired/delayed range, low average range for quantitative reasoning, and average range for visual-spatial processing.[211] The Student’s working memory was in the low average range, and nonverbal IQ, was in the 10th percentile.[212] The Student’s fine motor and gross skills were rated extremely low, as the Student has difficulty with tasks like running, catching a ball, stacking blocks, turning pages one at a time, but could jump, climb stairs, pick up pick up small objects, turn doorknobs, and press buttons on a keyboard.[213] The Student’s “day-to-day functional abilities are in the lowest 1% compared to [their] peers.”[214] The Student also was impacted by their “limited speech, developmental delays, attentional difficulties, and challenges with [ADL] skills.” [215] The Student has “many behavioral characteristics similar to youth diagnosed with autism.”[216] The Student “has difficulty using appropriate verbal and non-verbal communication for social contact, engages in unusual behaviors, has difficulty relating to children and adults, and has difficulty providing appropriate emotional responses.”[217] The Student also has difficulty tolerating changes in routine, overreacts to sensory stimulation and has problems with inattention and/or motor impulse control.[218] The Student scored in the very elevated category for autism based on their teachers observations.[219] The Student’s significant behavioral and social-emotional deficits also impair their capacity for interaction in social and structured environments. [220] The Psychologist recommended that the student obtain specialized services from OPWDD, receive SLT, OT, physical therapy (“PT”), and Counseling Services, as well as an IEP, which “should highlight the need for a smaller classroom environment, ensuring [they] benefit from more personalized attention, reduced distractions, and a setting conducive to [their] needs.”[221] The Student was also recommended for applied behavior analysis (“ABA”) therapy which is “tailored to enhance specific behaviors and skills in individuals diagnosed with ASD.”[222] It is the Psychologist’s opinion that ABA would significantly reduce the challenges the Student faces related to Autism.[223] Since the Student’s cognitive abilities are impaired by their medical and social-emotional challenges, they have the ability to learn and develop in the right environment. [224] The Psychologist recommended the Student be placed in a “specialized instructional environment with small groups of children and sufficient staff to provide individualized and small group interaction.”[225] A mainstream environment would cause “sensory overload,” which negatively affects children’s capacity to access education and instruction appropriately.[226] The Student would not be able to function in a mainstream environment, and instead be placed in a 8:1:2 or 9:1:2 special class size with a ratio of no more than 3 children to 1 adult, a paraprofessional for their health and feeding needs, to protect them and ensure their wellbeing in class, ABA therapy, as well as increased related services for OT, SLT, PT, and counseling. [227]
Although there is a presumption that a student with disabilities should be mainstreamed to the maximum extent appropriate, removal of students with disabilities is appropriate when their disability impacts their education in a general education setting even with the use of supplementary aids and services. In the instant matter, the issue is not that the Student is not in the LRE, but rather that the Student belongs in a more restrictive environment. The District presented no evidence as to whether education in a general education class, with the use of supplemental aids and services, could be achieved satisfactorily for this Student, but did present testimony that a general education class would mainstream the Student to the maximum extent appropriate. The District presented evidence that the CPSE Administrator believed the Student belonged in a general education setting, but presented no evidence comparing the educational benefits available to the Student in a general education class, with supplementary aids and services, to a special education class. However, the Parent did present evidence and testimony that placing the Student in a general education setting would have negative effects on the Student’s education in light of their disabilities compared to a special class setting, like the Student’s prior 6:3 setting. The Parent additionally provided evidence and credible expert testimony at the DPH supporting placement in a more restrictive setting. The Student’s extensive needs and disabilities directly impact their ability to learn, and a mainstream setting is not appropriate for this Student to gain educational benefit and make meaningful progress. Placing this Student in a large mainstream setting would not only affect the Student’s access to education, but would also impact the children around them as well, as the Student cannot function in a group setting and becomes overstimulated and engages in behaviors like hitting, biting, and throwing a tantrum45z.
The hearing record and credible testimony from the Parent and Psychologist support a finding that the CPSE should reconvene and refer this student to either the NYSED Day Program the Parent has selected in a 9:1:2 special class setting, or a NYSED-approved special class setting consisting of an 8:1:2 or a 9:1:2 class size. The record additionally supports a finding for an increase in related services, including the addition of PT and counseling, as well as a modification of the related services being administered in a group setting to individual services. At the August 2023 CPSE IEP meeting, the Parent informed the CPSE Administrator that the Student could not function in a mainstream setting, as he was unable to during the summer at day camp. Even though this day camp was not NYSED approved or recommended by the CPSE, the Parent brought forth relevant and critical information to the CPSE about how the Student could not function in a mainstream setting. However, the CPSE continued to only rely on their own evaluation and data and exclude any information outside of the DOE. The Parent subsequently provided related service provider and physician documentation that contained recommendations for a special class setting and an increase in services, but this was still disregarded by the CPSE. The Parent provided the private evaluation newly diagnosing the Student with autism, and the CPSE again disregarded the external recommendations for a special class setting and related services. The Parent testified that the Student cannot function in a group setting, as they do not remain calm when there are other children around them, will throw things, and have a meltdown.[228] The CPSE continued to recommend the same program and mainstream setting even though the Parent, Student’s SEIT and SLT provider, private Physician’s Assistant, and Psychologist all recommended otherwise. The CPSE also continued to recommend related services in a group setting, despite the Parent voicing their concerns about the Student struggling to function in a group setting with other children. The hearing record supports that the Student cannot function in a large general education setting and would not benefit from receiving related services in a group setting either. The Student requires a more restrictive educational setting due to their intensive medical needs and disabilities, which directly impacts their ability to learn, and also causes delays with speech, fine and gross motor skills, as well as behavioral issues. The Student additionally requires an increase in related services, in addition to PT and Counseling, as recommended by the Student’s treating providers and the Psychologist.
As the 2023-24 school year is currently ongoing, I find that the hearing record and the Parent and Psychologist’s credible testimony support a finding that the current special education program and placement are not appropriate for the Student for this school year, and that the Parent is entitled to the requested relief for an order directing the CPSE to reconvene and refer the Student to the CBST to place the Student in the NYSED Day Care in a 9:1:2 class, as well as an increase in current services as specified by the Student’s provider, and to receive PT and counseling.
III.
Compensatory Education
The relief requested by the Parent is equitable in nature, as the Parent is asking the IHO to devise an appropriate remedy to address the DOE’s failure to provide Student with a FAPE for the 2023-24 school year. [229]
The Supreme Court has emphasized that relief under the IDEA depends, in part, on “equitable considerations.”[230] As previously discussed, “when a school district denies a child a FAPE, the courts have ‘broad discretion’ to fashion an appropriate remedy.”[231] In actions brought under the IDEA alleging a denial of FAPE, “the court shall grant such relief as the court determines is appropriate,” limited only by the restriction that “the relief is to be appropriate in light of the purpose of the Act.” [232]
An appropriate equitable remedy for a denial of FAPE can include an award of compensatory education.[233] The Second Circuit has held, “[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and we have held compensatory education is an available option under the Act to make up for denial of a free and appropriate public education.”[234] Compensatory education is “prospective equitable relief” that requires a school district to fund education “as a remedy for any earlier deprivations in the child's education.”[235] Courts “may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies.”[236] Unlike ordinary IEPs “that need only provide ‘some benefit,’ compensatory awards must do more -- they must compensate,” and “hearing officers may award ‘educational services…to be provided prospectively to compensate for a past deficient program.’” 237 “If IDEA permits reimbursement for educational services, courts have reasoned, then it must also allow awards of the services themselves.” 238 Compensatory education, therefore, is a “replacement of educational services the child should have received in the first place.” 239
There are generally two approaches to fashioning a compensatory education award: 1) the “quantitative” approach followed in the Third Circuit, 240 and 2) the “qualitative” approach relied on by the 6th and D.C. Circuits. 241 The Second Circuit has not taken a preferred approach, opting instead as a general practice to “leave the mechanics of structuring the compensatory education award to the district court’s sound discretion”, so long as “the relief is [] appropriate in light of the purpose of the Act.” 242 In calculating an award, a court can also consider “whether compensatory education should be limited to the kinds of services specified in the [IEP], or encompass analogous educational services appropriate to the Student’s current needs”; however, the ultimate award “must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place.” [243]
Under New York State law and regulations, the District has the burden of proof in an administrative hearing regarding the appropriateness of a compensatory education award under the IDEA.[244] However, the parent also has a responsibility to identify the specific remedy they are seeking so that the IHO can craft an appropriate remedy for the DOE’s failure to provide the Student with a FAPE for the years at issue.[245] Here, the Parent has identified the specific remedy
Reid v. Dist. of Columbia, 401 F.3d 516, 525 (D.C. Cir. 2005). 238
See id. at 522. 239
See id. at 518. 240
See, e.g., M.C. ex rel. J.C. v. Cent. Reg’l Sch. Dist., 81 F.3d 389 (3d Cir. 1996) (holding that a student denied a FAPE is entitled to compensatory education equal to the period of deprivation). 241
See, e.g., Reid, 401 F.3d at 518, 524 (requiring a flexible, fact-specific approach in which the award relies “on individual assessments” and is “reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place”). 242
Doe v. East Lyme, 790 F.3d at 454, 457; accord L.O. ex rel. K.T. v. New York City Dept. of Educ., 822 F.3d 95, 125 (2d Cir. 2016); see also Student X. v. New York City Dept. of Educ., 2008 WL 4890440, at *26 (E.D.N.Y 2008) (noting that “the Second Circuit has not articulated a test for determining how [compensatory education] services are calculated”, and awarding compensatory relief equal to the amount of time the student was deprived of services). Parent is seeking and has provided documentary evidence and testimony in support of Parent’s request. The Parent is requesting compensatory instructional and related service hours on a quantitative basis.
The District argued at hearing that the DOE provided the Student with a FAPE for the 2023-24 school year. The District additionally argued that the requested relief of compensatory education should be denied “because the record lacks evidence of the specific harm the [S]tudent suffered, evidence of the compensatory services that are necessary to make up for the alleged harm, and how those services are specifically intended to do so.”[246] The DOE maintains that the “Parent rejected the DOE’s offered program, which could have mitigated or prevented any alleged harm to the [S]tudent.”[247] The Parent additionally requested ABA therapy, which was not specified in the complaint. [248]
As I stated above, the hearing record supports a finding that the Student did not receive a FAPE for the 2023-24 school year. The Parent presented evidence and credible testimony that the Student was not recommended to receive enough related services for the 2023-24 school year that would have allowed them access to education and to make meaningful progress in light of their disability. The Parent testified at the hearing that the Student did attend the Day Program, but was not receiving related services, even though they had attempted to contact the related service providers.[249] The CPSE Administrator also testified that the Student did not receive related services for the current school year because the Parent did not identify a school for the District to provide services for the Student.[250] The Parent provided a letter from the Student’s SEIT and SLT provider, which was also previously sent to the CPSE, who expressed disagreement with the Student’s recommended SEIT in a group of 3 for 3 hours a week and group SLT 2x/week for 30 minutes.[251] The SEIT/SLT provider recommended that the Student SLT 4 times a week for 60 minutes each session.[252] The Parent additionally testified that the Student cannot function in a group setting with other children. The Psychologist recommended that the Student receive SLT a (holding that a hearing officer “must solicit the evidence necessary to determine the student’s specific educational deficits resulting from his loss of FAPE and the specific compensatory measures needed to best correct those deficits.”) (internal quotes and citation omitted). minimum of 3 sessions a week, OT a minimum of three 3 a week, PT 2 times a week, counseling twice a week, and ABA therapy 20-25 hours per week under the supervision of a Board Certified Behavior Analyst (“BCBA”)/Licensed Behavior Analyst (“LBA”).[253] The Parent seeks compensatory education services to make-up for the missed related services, as well as any and all relief deemed appropriate by the IHO to remediate to remediate the Student’s needs and provide relief for the District’s FAPE violations.[254] The Parent specifically seeks 33 hours of SEIT services based on the CPSE’s recommended 3 hours a week of SEIT services and 1 week of missed pendency services.[255] The Parent provided no evidence or testimony as to whether the compensatory services are to be provided by private service providers and at what rate.
According to the DOE 2023-24 School Year Calendar,[256] the Student’s first day of school would have been September 7, 2023. Between September 7, 2023 and November 17, 2023, the Student was not provided with 10 weeks of related services for SEIT, SLT, and OT. The hearing record and credible testimony of the Parent support a finding that the Student is entitled to compensatory education for the related services that the DOE failed to provide for the 2023-24 school year at a rate that the Student’s providers recommend the Student should have received all along, which is: 33 hours of SEIT [(10 weeks x 3 hours/week) + (1 week x 3 hours missed under pendency)]; 40 hours of SLT (10 weeks x 4 hours/week); 15 hours of OT (10 weeks x 1.5 hours/week). As there is no evidence in the hearing record that the Parent has selected a provider to administer the above-described compensatory services and at what rate, I find that the District should provide the make-up compensatory services, and should they fail to, that the DOE fund the compensatory services by a Parent select a licensed provider.
IV. Reimbursement for IEEs General Process
An IEE is “an individual evaluation of a student with a disability or a student thought to have a disability, conducted by a qualified examiner who is not employed by the public agency responsible for the education of the student.” [257]
The IDEA, State and federal regulations allow a parent to request an IEE at public expense if the parent disagrees with a school district’s evaluation.[258] In Shaffer v. Weast, the Supreme Court explained the role an IEE plays in parental participation and the IDEA’s regulatory scheme as follows: “[an IEE] ensures parents access to an expert who can evaluate all the materials that the school must make available, and who can give an independent opinion. “They are not left to challenge the government without a realistic opportunity to access the necessary evidence, or without an expert with the firepower to match the opposition.” [259]
If a parent requests an IEE, the school district must provide the parent with information about where they can obtain an IEE.[260] A school district can set criteria regarding the IEE, including the qualifications of the examiner, but the district’s criteria must be the same as the criteria it uses for its own evaluations, and the district cannot impose additional conditions or timelines related to the IEE.[261] For example, a school district may not compel the use of a particular evaluator or its own chosen evaluator for an IEE [262], nor can it deny an IEE at public expense based solely on financial cost [263]. A parent’s right to an IEE at public expense may not be conditioned on the school district’s ability to first conduct its own assessment before granting the parent’s request for an independent IEE.[264] Finally, while the school district may “ask for the parent’s reason why he or she objects to the public evaluation,” the district cannot require an explanation or delay providing the IEE until the parent provides an explanation. [265]
When a parent disagrees with a school district’s evaluation and requests an IEE at public expense, the school district “must, without unnecessary delay,” either (1) ensure that an IEE is provided at public expense; or (2) initiate an DPH to establish that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria. [266]
A parent is entitled to an IEE when the district does not conduct a sufficiently comprehensive evaluation or fails to test the student in an area of need.[267] The court in D.S. v. Trumbull Bd. of Educ., 975 F.3d 152, 165 (2d Cir. 2020) stated that, “[n]othing in the statute or regulations suggests that a parent cannot challenge an evaluation on the ground that it was too limited. To the contrary, because the IDEA requires an evaluation to be comprehensive, one would expect that a parent is free to disagree with an evaluation based on its deficient scope.”[268] The U.S. Department of Education's Office of Special Education Programs (“OSEP”), has similarly stated that when a parent disagrees with an evaluation because a child was not assessed in a particular area, “the parent has the right to request an IEE to assess the child in that area to determine whether the child has a disability and the nature and extent of the special education and related services that child needs.” [269]
The school district bears the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement.[270] Accordingly, the school district bears the burden of showing that its evaluation of student was appropriate in order to prevail in its challenge to Parent's request for IEEs at public expense. [271]
An IEE may also be requested by an impartial hearing officer “as part of a hearing on a due process complaint.”[272] The N.Y.C.R.R. does not provide limitations or guidance about hearing officer requests or directives for IEEs. There are however limitations to an IHO’s authority to order IEEs “‘as part of’ the larger process.” [273] Timeliness
Pursuant to Federal and State regulations, the school district must conduct triennial reevaluations for a student at least once every three years.[274] There is no statute of limitations specified in the IDEA “for a parent’s right to disagree with an evaluation for the purpose of obtaining an IEE at public expense.”[275] However, the Second Circuit in D.S. v. Trumbull Bd. of Educ. held that “[b]ecause the only evaluations that trigger a parent's right to an IEE at public expense are the initial evaluation and triennial reevaluations discussed in Section 1414 of the Act, a parent's right to an IEE at public expense ripens each time a new evaluation is conducted.”[276] The Court went on to explain that “[t]he time within which a parent must express their disagreement with an evaluation and request an IEE depends on how frequently the child is evaluated.”[277] Unlike initial evaluations, the regulations do not speak to when a triennial evaluation must be completed by.[278] However, “[w]here, as here, a child is evaluated according to the default evaluation timeline, the parent must disagree with an evaluation within that three-year timeframe.” [279]
The District stated that the hearing record does not support a finding for the DOE to reimburse the Parent for the private psychological evaluation, and that the Parent first requested reimbursement for an IEE in a complaint, which is not the appropriate process for challenging a DOE evaluation.[280] The District did not contest the reasonableness of the rate of the psychological evaluation.
The Parent requests reimbursement for the independent psychological evaluation conducted in September of 2023.[281] The Parent argues that the Parent properly requested an IEE in writing from the DOE in August of 2023.[282] In the instant matter, the Parent argues that the District failed to either provide the Parent with the requested IEE at public expense or file a DPC to initiate a DPH to defend the appropriateness of their evaluations.[283] The Parent argues that in preparation for the Student’s turning-three CPSE IEP meeting, the District only conducted the following evaluations: a psychological evaluation, psychoeducational evaluation, SLT evaluation, and OT evaluation, which reports contained boilerplate language and did not fully assess the Student in their areas of concern and disabilities.[284] During the August 2023 CPSE IEP reconvene, the CPSE also took no action with respect to the Parent’s requested IEEs.[285] District Exhibit 4, which is email correspondence between the Parent and the CPSE Administrator, reveals that on August 28, 2023, the Parent asked the DOE for an IEE, as they disagreed with the DOE’s evaluations.[286] The Parent testified that they asked the CPSE Administrator for a re-evaluation, but was told that the Student would not be eligible for evaluations until February of 2024.[287] The Parent took the Student for a private psychological evaluation in September of 2023 288 The Parent additionally testified at the DPH that the private evaluation cost $1,000.[289] The Parent also testified that they disagreed with the District’s evaluations. [290]
The Parent timely requested an IEE from the District at public expense, which they are entitled to under the IDEA and NYS regulations, in August of 2023. The Parent expressed disagreement to the CPSE in writing with the District’s 2023 evaluations prepared for the Student’s turning-three CPSE IEP meeting. The CPSE Administrator notably did not address the Parent’s request for an IEE and merely informed the Parent of their due process rights.[291] The District never provided the Parent with the requested IEE, nor did they file a DPC to initiate the DPH process and defend their evaluations. The hearing record and credible Parent testimony supports a finding that that the Parent is entitled to an IEE to be funded at public expense. Since the Parent already paid for the private evaluation out-of-pocket, I additionally find that the Parent is entitled to be reimbursed for the cost of the psychological evaluation, as long as they submit proof of payment to the District.
See id.; Parent Exhibit B.
ORDER
Based on the above Findings, it is hereby:
1. ORDERED that, the DOE failed to provide the Student with a FAPE for the 2023-24 school year; and it is
2. FURTHER ORDERED that, the District shall convene the CPSE, with the necessary and required members as per the IDEA and NYS regulations, to hold a meeting, review the Student’s private psychological evaluation and/or any other provider or physician recommendations, and refer this Student to the CBST or proper DOE Department within 30 days of this Order to:
a. Enroll the Student at the NYSED-approved Day Program, specifically [REDACTED], and place the Student in a 9:1:2 class size, for the remainder of the 2023-24 school year, with 25 hours/week of ABA therapy, BCBA/LBA supervision, and a full-time 1:1 health, feeding, and behavior paraprofessional; and
b. Recommend the following appropriate related services, as recommended by the independent evaluations, and at the recommended frequency and service delivery:
i. SEIT services (Yiddish) on an individual basis, 3 hours per week, and ii. SLT on an individual basis, 4 times per week for 60 minutes per session, and iii. OT on an individual basis, 3 times per week for 30 minutes per session, and iv. PT on an individual basis, 2 times per week, which length of session is to be determined by the CPSE; and
v. Counseling on an individual basis, 2 times per week, which length of session is to be determined by the CPSE; and
c. If the DOE is unable to enroll the Student at [REDACTED], that the DOE recommend placement for the Student in a comparable NYSED-approved non-public school day care setting, in a 9:1:2 special class setting with bilingual Yiddish capacity for the remainder of the 2023-24 school year; and it is
3. FURTHER ORDERED that, the DOE is directed to reimburse the Parent for the private psychological evaluation (Parent Exhibit B) within 35 days of the submission of proof of payment by the Parent in the form of an invoice; and it is
4. FURTHER ORDERED that, the DOE shall provide the following compensatory services for the Student, which may be provided during the school year, summer, weekdays, weekends, holidays or during school vacations, as specified below:
a. 33 hours of SEIT services, to be used either in-school or at-home; and
b. 40 hours of SLT, to be used either in-school or at-home; and
c. 15 hours of OT, to be used either in-school or at-home; and it is
5. FURTHER ORDERED that, should the DOE fail to provide the Student with the compensatory services ordered in #4 of this Order within 35 days of the date of this Order, that the DOE shall fund the compensatory services for the Student, which may be provided during the school year, summer, weekdays, weekends, holidays or during school vacations, by New
York State licensed providers of the Parent’s own choosing by directly funding said providers at a reasonable market rate within 35 days of receipt of invoices for services rendered and an accompanying sworn affidavit attesting that the services billed for were provided; and it is
6. FURTHER ORDERED that, the bank of compensatory services set out in #4 of this Order shall not expire until the expiration of one (1) year from the date of this Order; and
7. FURTHER ORDERED that, the DOE’s implementation unit shall authorize all services hereby Ordered within 15 days.
SO ORDERED.
DATED: December 1, 2023
Melanie L. Bota, Esq.
Impartial Hearing Officer
DISTRICT EVIDENCE
1. CPSE Packet 02/08/2023 54 pages DOE
2. Initial IEP Meeting 03/07/2023 15 pages DOE
3. Prior Written Notice 03/07/2023 3 pages DOE
4. Email Communications Several Dates 3 pages DOE
5. Reconvene IEP Meeting 08/07/2023 15 pages DOE
6. Affidavit: [REDACTED] 10/24/2023 5 pages DOE
PARENT EVIDENCE
A. Impartial Hearing Request 09/05/2023 8 pages
B. Psychological Evaluation 09/10/2023 14 pages
C. Parent Affidavit 10/30/23 6 pages
D. Psychologist Affidavit 10/26/23 9 pages
E. School letter 11/1/2023 1 page
F. Williamsburg Pediatrics Evaluation 08/01/2023 2 pages
G. SLT Provider Letter undated 2 pages
IHO EVIDENCE
I. Email from Parent Representative to IHO and District Representative (12:24pm) forwarding 10/24/2023 Email from Former District Representative + attachments 11/02/2023 80 pages IHO
II. Email from District Representative to Parent Representative (2:20pm) 11/07/2023 2 pages IHO
III. Email from Parent Representative to District Representative (1:12pm) 11/08/2023 2 pages IHO
IV. Email from District Representative to Parent Representative (2:08pm) 11/08/2023 2 pages IHO
V. Email from Parent Representative to District + attachments (3:00pm) APPENDIX [REDACTED] Information Term Used In FOFD [REDACTED] Student [REDACTED] Parent [REDACTED] Parent Representative [REDACTED] Former District Representative [REDACTED] District Representative [REDACTED] Psychologist [REDACTED] CPSE Administrator #7 District [REDACTED] Day Program [REDACTED] NYSED Day Program 11/08/2023 79 pages IHO
Footnotes
[1] Personally identifiable information is attached as Appendix A, “Redaction Identification Page,” to this decision and must be removed prior to public distribution.
[2] See Parent Exhibit A, at 2.
[3] See id. at 1.
[5] See Parent Exhibit A, at 6.
[6] See id.
[7] See Transcripts dated November 1, 2023; November 2, 2023; November 8, 2023; November 9, 2023; and November 17, 2023.
[8] Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982); Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005).
[9] See 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2); Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 (S.D.N.Y. 2007).
[10] See 20 U.S.C. § 1415(f)(3)(E)(i).
[11] Rowley, 458 U.S. at 203 (emphasis added).
[12] See Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 (5d Cir. 2000); Fisher v. Stafford Township Bd. of Educ., 289 Fed. App'x 520, 524-25, 2008 WL 3523992 (3d Cir. Aug. 14, 2008); Couture v. Bd. of Educ., 535 F.3d 1243 (10th Cir. 2008); Neosho R-V Sch. Dist. v. Clark, 315 F.3d 1022, 1027 n.3 (8th Cir. 2003).
[13] A.P., 370 Fed. App'x at 205; Van Duyn, 502 F.3d at 822; Catalan v. Dist. of Columbia, 478 F. Supp. 2d 73 (D.D.C. 2007).
[14] Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 454 (2d Cir. 2015).
[15] Florence County Sch. Dist. Four v. Carter by & Through Carter, 510 U.S. 7, 16 (1993).
[17] Doe v. East Lyme, 790 F.3d at 454.
[18] NYS Educ. Law § 4404(1)(c).
[19] See 20 U.S.C. §1415(i)(2)(C)(iii); see also Walczak v. Florida Union Free Sch. Dist., 142 F.3rd 119 (2d Cir. 1998).
[20] See 20 U.S.C. § 1431(b)(1).
[21] See 34 C.F.R. § 300.124(b).
[22] NYS Educ. Law § 4410(1)(i); see 8 N.Y.C.R.R 200.1(mm)
[23] See 8 N.Y.C.R.R 200.16.
[24] See 8 N.Y.C.R.R 200.1(mm)(2).
[25] Id. at (j); see also 8 N.Y.C.R.R 200.3.
[26] See 8 N.Y.C.R.R 200.16.
[27] Id. at (e)(3).
[28] Id. at (e)(3)(i).
[29] M.W. ex rel. S.W. v. New York City Dept. of Educ., 725 F.3d 131, 135 (2d Cir. 2013); A.M. ex rel. E.H. v. New York City Dept. of Educ., 845 F.3d 523, 535 (2d Cir. 2017).
[30] Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).
[31] Endrew F. v. Douglas County School District, 137 S. Ct. at 1002 (2017).
[32] See Transcript, at 448, November 17, 2023.
[33] See Transcript, at 74, November 1, 2023; Transcript, at 429, November 17, 2023.
[34] 8 N.Y.C.R.R 200.3 (a)(2).
[35] See Transcript, at 75, November 1, 2023; Transcript, at 136 - 137, November 02, 2023.
[36] Id.
[37] Id.at 137 – 138.
[38] See id. at 193.
[39] Id.
[40] Id. at 201.
[41] See District Exhibit 2, at 3; District Exhibit 5, at 3.
[42] See 20 USC § 1414(d)(1).
[43] 8 N.Y.C.R.R 200.3 (a)(2).
[44] 8 N.Y.C.R.R 200.3 (a)(2)(ii).
[45] District Exhibit 2 at 14.
[47] 8 N.Y.C.R.R 200.3 (a)(2)(vii).
[48] See 8 N.Y.C.R.R 200.3 (a)(2)(viii).
[49] 34 C.F.R. 300.327.
[50] 34 C.F.R. § 300.501(b).
[51] 34 C.F.R. § 300.501(c).
[52] M.Z. v. N.Y.C. Dep't of Educ., 2013 U.S. Dist. LEXIS 47052, 2013 WL 1314992, at *8 (S.D.N.Y. March 21, 2013) (citing 20 U.S.C. § 1414(c)(1)(A)); see also F.B. v. N.Y.C. Dep't of Educ., 923 F. Supp. 2d 570, 2013 WL 592664, at *8 (S.D.N.Y. 2013) (The IDEA "does not require that the team review every single item of data available").
[53] M.H. v. N.Y.C. Dep't of Educ., No. 10 Civ. 1042, 2011 U.S. Dist. LEXIS 17306, 2011 WL 609880, at * 12 (S.D.N.Y. Feb.16, 2011) (citations omitted); see also T.S. v. Bd. of Educ., 10 F.3d 87, 90 (2d Cir.1993); Tarlowe v. N.Y.C. Bd. of Educ., No. 07 Civ. 7936, 2008 U.S. Dist. LEXIS 52704, 2008 WL 2736027, at *7-8 (S.D.N.Y. July 3, 2008).
[54] T.P. ex rel. S.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253-54 (2d Cir. 2009).
[55] M.H., 685 F.3d at 245.
[56] Id.
[57] Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005).
[58] See id. at 452 and Parent Exhibit A, at 1.
[59] See Transcript, at 430, November 17, 2023.
[60] See Parent Exhibit 6, at 1 – 6.
[61] See Transcript, at 176 – 186, November 17, 2023; see also District Exhibit 6, at 2.
[62] See District Exhibit 6, at 1 – 2; see also District Exhibit 6, at 1.
[63] See District Exhibit C, at 3.
[64] See id.
[65] Id. at 3.
[66] Id.
[67] Id.
[68] See Transcript, at 191 – 192, November 17, 2023.
[69] Id. at 190.
[70] Parent Exhibit C at 4.
[71] Transcript, at 190, November 2, 2023.
[72] See id. at 141 – 142.
[73] See id. at 140; Parent Exhibit F, at 1.
[74] Transcript, at 190, November 17, 2023; see Parent Exhibit G.
[75] Transcript, at 141, November 17, 2023.
[76] Id.
[77] Parent Exhibit C at 5 – 6.
[78] Transcript, at 149, 154, and 192, November 17, 2023.
[79] Id. at 156.
[80] Id. at 156 – 157.
[81] Id. at 157.
[82] Id. at 157 – 158.
[83] See Transcript, at 74, November 1, 2023; Transcript, at 429, November 17, 2023.
[84] See Transcript, at 429, November 17, 2023.
[85] See id. at 430.
[86] See Transcript, at 76, November 1, 2023.
[87] See District Exhibit 2.
[88] See id. at 2; District Exhibit 6, at 3.
[89] Transcript, at 76, November 1, 2023.
[90] See District Exhibit 5, at 12.
[91] See District Exhibit 5, and Transcript, at 190, November 2, 2023.
[92] See id. at 79.
[93] See id. at 80.
[94] See id.
[95] See id.
[96] See id.
[97] Id. at 82.
[98] See id.
[99] Transcript, at 456, November 17, 2023.
[100] Id.
[101] See id.
[102] See Parent Exhibit A, at 4.
[103] See id.
[104] See id.; Transcript, at 149, 154, and 192, November 17, 2023.
[105] See District Exhibit 1.
[106] See District Exhibit 6, at 2.
[107] See id. at 1.
[108] See id. at 2.
[109] Id.
[110] Id.
[111] Id.
[112] Id.at 2.
[113] Id.
[114] See id. at 2 – 3.
[115] See id. at 4.
[116] Id.
[117] Id., at 3.
[118] Id.
[119] Id.
[120] Id. 3 – 4.
[121] District Exhibit 2 at 1; District Exhibit 5 at 1.
[122] See District Exhibit 6, at 4.
[123] See id. at 5.
[124] Transcript, at 181, November 2, 2023.
[125] See id. 182.
[126] Id. at 183.
[127] See Parent Exhibit C, at 1.
[128] Id.
[129] See id.
[130] See id. at 2.
[131] See id.
[132] See id.
[133] Id. at 3.
[134] See id.
[135] See id.
[136] See id.
[137] See id. at 4.
[138] See id.
[139] See id.
[140] See id.
[141] See id.
[142] See id.
[143] See id.
[144] Id. at 5.
[145] See id.
[146] See id.
[147] See id.
[148] See id.
[149] See id.
[150] See id.; The CPSE Administrator additionally testified that the Student was not receiving any services for the 2023-24 school year because the Student was not currently attending the Day Program and Parent did not respond to any correspondence regarding sending the SEIT to the Student’s home. See Transcript, at 208 - 209, November 2, 2023.
[151] See Parent Exhibit C, at 6.
[152] See District Exhibit 1, at 10.
[153] See id.
[154] See id.
[155] See id. at 30.
[156] See id. at 17.
[157] See Adams v. Dist. of Columbia, 285 F. Supp. 3d 381, 393, 396-97 (D.D.C. 2018) [noting with approval the hearing officer's finding “that the directives of IDEA would be best effectuated by ordering an IEP review and revision, rather than prospective placement in a private school”]; see also Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *16 (E.D.N.Y. Oct. 30, 2008) [noting that “services found to be appropriate for a student during one school year are not necessarily appropriate for the student during a subsequent school year”]).
[158] See V.W. v. New York City Dep't of Educ., 2022 WL 3448096, at *7 (S.D.N.Y. Aug. 17, 2022) [acknowledging that "orders of prospective services are disfavored as a matter of law" and, in the matter at hand, indicating that "the CSE should have already convened for subsequent school years]; M.F. v. N. Syracuse Cent. Sch. Dist., 2019 WL 1432768, at *8 (N.D.N.Y. Mar. 29, 2019) [declining to speculate as to the likelihood that the district would offer the student a FAPE "in the future" and, therefore, denying prospective relief]; Eley v. Dist. of Columbia, 2012 WL 3656471, at *11 (D.D.C. Aug. 24, 2012) [noting that prospective placement is not an appropriate remedy until the IEP for the current school year has been completed and the parent challenges the IEP for the current school year]).
[159] See Connors v. Mills, 34 F.Supp.2d 795, 799, 804-06 (N.D.N.Y. Sept. 24, 1998) [noting a prospective placement would be appropriate where "both the school and the parent agree[d] that the child's unique needs require[d] placement in a private non-approved school and that there [we]re no approved schools that would be appropriate"].
[160] See e.g., Application of a Student with a Disability, Appeal No. 19-018.
[161] P. v. Newington Bd. of Educ., 546 F.3d 111, 119 (2d Cir. 2008) (quoting 20 U.S.C. § 1412(a)(5)(A) and citing Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 122 (2d Cir. 1998)).
[162] Id. (citing Briggs v. Board of Education, 882 F.2d 688, 692 (2d Cir. 1989); Lachman v. Ill. State Bd. of Educ., 852 F.2d 290, 295 (7th Cir. 1988)).
[163] Id. (citing Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1048 (5th Cir. 1989)).
[164] Id. at 120 (citing Daniel, 874 F.2d at 1048).
[165] Id. (citing Oberti v. Board of Educ., 995 F.2d 1204, 1217–18 (3d Cir. 1993)).
[166] See Parent Exhibit A, at 6.
[167] See id. at 4.
[168] Id.
[169] Id.
[170] See id. at 6.
[171] See Transcript, at 430, November 17, 2023.
[172] Id.
[173] Id. at 431.
[174] See Transcript, at 435, November 17, 2023, citing, J.M. v. New York City Dep't of Educ., 2013 U.S. Dist. LEXIS 159533, at *56 (SDNY November 17, 2013).
[175] See Transcript, at 435 – 436, November 17, 2023.
[176] Id. at 436.
[177] See id.
[178] Id at 438.
[179] District Exhibit 6, at 2.
[180] Id.
[181] See id.
[182] See id.
[183] See id. at 3 – 4.
[184] See Transcript, at 190, November 2, 2023.
[185] See id. at 190 – 192.
[186] See id. at
[187] See id. at 207 – 209.
[188] See id. at 209. The Parent later testified that the Student was supposed to attend the Day Program, but was unable to due to their failure to thrive, as they were refusing to take formula in a bottle.
[189] See Parent Exhibit C, at 4 – 5.
[190] See id. at 4.
[191] Id. at 5.
[192] See id.
[193] See id.; Parent Exhibit F, at 2; Parent Exhibit G, at 2.
[194] See Parent Exhibit G, at 2.
[195] See id.
[196] See id.
[197] See id. at 1.
[198] See Parent Exhibit F, at 1.
[199] See id.
[200] See id. at 2.
[201] Id.
[203] See Parent Exhibit E.
[204] See Transcript, at 359 – 360, November 9, 2023.
[205] See id. at 361.
[206] See Transcript, at 354-356, 383, 391, 399, and November 9, 2023.
[207] See Parent Exhibit B.
[208] See Parent Exhibit D, at 1.
[209] See id. at 2.
[210] See id.
[211] See id. at 3.
[212] See id. at 4.
[213] See id.
[214] See Parent Exhibit B, at 12.
[215] Id.
[216] Parent Exhibit D, at 5.
[217] Id.
[218] See id.
[219] See id. at 6.
[220] See id. at 7.
[221] See Parent Exhibit B, at 13.
[222] Id.
[223] See id.
[224] See Parent Exhibit D, 6 – 7.
[225] Id. at 7.
[226] Id.
[227] See id. at 7 – 8.
[228] See Transcript, at 340 - 341, at November 9, 2023.
[229] See Parent Exhibit A, at 6.
[230] See Sch. Comm. of Town of Burlington, Mass. v. Dept. of Educ. of Mass., 471 U.S. 359, 374 (1985); Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7, 15-16 (1993).
[231] Boose v District of Columbia, 786 F. 3d 1054, 1056 (D.C. Cir. 2015).
[232] Doe v. East Lyme, 790 F.3d at 454.
[233] E.M. v. New York City Dept. of Educ., 758 F.3d 442, 451 (2d Cir. 2014).
[234] P. ex rel. Mr. & Mrs. P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008).
[235] Somoza v. New York City Dept. of Educ., 538 F.3d 106, 109 n.2 (2d Cir. 2008).
[236] Doe v. East Lyme, 790 F.3d at 454.
[243] Doe. v. East Lyme, 790 F.3d at 457.
[244] Education Law § 4404(1)(c).
[245] See JKG by JK and JKG v. Wissahickon Sch. Dist., 2021 WL 1122526, at *8 (E.D. Pa. 2021), (noting that “[w]hile the Court has discretion to fashion a remedy that it deems appropriate, the Court cannot unilaterally supply the facts necessary to reach such a decision”); Butler v. Dist. of Columbia, 275 F. Supp. 3d 1, 5 (D.D.C. 2017)
[246] See Transcript, at 440, November 17, 2023.
[247] Id.
[248] See id.
[249] See Transcript, at 399 - 401, November 30, 2023.
[250] See Transcript, at 209, November 02, 2023.f
[251] See Parent Exhibit G, at 1.
[252] See id.
[253] See Parent Exhibit D, at 7 – 8.
[254] See Parent Exhibit A, at 6.
[255] See Transcript, at 466 – 467, November 17, 2023.
[256] See, https://www.schools.nyc.gov/about-us/news/2023-2024-school-year-calendar (last visited November 30, 2023). I take judicial notice of the first day of school for Students attending a NYC DOE Public School, which is September 7, 2023.
[257] 8 N.Y.C.R.R. § 200.1(z).
[258] See 20 U.S.C. § 1415 (b)(1); 34 C.F.R. § 300.502(b); 8 N.Y.C.R.R. § 200.5(g)(1); D.S. by M.S. and R.S. v. Trumbull Bd. of Educ., 975 F.3d 152, 158 (2d Cir. 2020) (“[a] parent is entitled to a publicly funded IEE if the parent disagrees with an evaluation obtained by the public agency”) (internal quotation marks and citations omitted).
[259] 546 U.S. 49, 60-61 (2005).
[260] 8 N.Y.C.R.R. § 200.5(g)(1)(i).
[261] 34 C.F.R. § 300.502(e)(1); 8 N.Y.C.R.R. § 200.5(g)(1)(ii); Letter to Kirby, 213 IDELR 233 (OSERS 1989).
[262] See Board of Education of the County of Nicholas v. H.A., 445 F. App’x 660 (4th Cir. 2011).
[263] See Letter of OSERS, 2002.
[264] Letter to Carroll, 68 IDELR 279 (OSEP 2016).
[265] 8 N.Y.C.R.R. § 200.5(g)(1)(iii).
[266] 34 C.F.R. § 300.502(b)(2)(i)-(ii); 8 N.Y.C.R.R. § 200.5(g)(1)(iv) (emphasis added).
[267] See D.S. v. Trumbull Bd. of Educ., 975 F.3d 152, 165 (2d Cir. 2020).
[268] Id.
[269] Letter to Baus, 65 IDELR 81 (OSEP 2015); see also Letter to Carroll, 68 IDELR 279 (OSEP 2016).
[270] See NYS Educ. Law § 4404(1)(c).
[271] See SRO-19-101.
[272] 8 N.Y.C.R.R. § 200.5(g)(2); 34 CFR § 300.502(d).
[273] Lyons v. Lower Merrion Sch. Dist., 2010 WL 8913276, at *3 (E.D. Pa. Dec. 14, 2010). See also S. Kingstown Sch. Comm. v. Joanna S., 2014 WL 197859, at *9 n.9 (D.R.I. Jan. 14, 2014), where the opinion that the regulation empowers hearing officers to solicit independent expert opinions was acknowledged, but disagreement was expressed that the regulation gives an IHO "the inherent power to make up remedies out of whole cloth", aff'd, 773 F.3d 344 (1st Cir. 2014) (cited in Application of a Student with a Disability, Appeal No. 21-021).
[274] See 20 U.S.C. § 1414(a)(2)(B)(ii); 8 NYCRR § 200.4(b)(4).
[275] Trumbull, 975 F.3d at 169.
[276] Id.
[277] Id., at 170.
[278] See 34 CFR § 300.303; 34 CFR § 300.301(c)(1)(i)-(ii);8 NYCRR § 200.4(b)(1).
[279] Trumbull, 975 F.3d at 170.
[280] See Transcript, at 78, November 1, 2023; Transcript at 439 – 440, November 17, 2023.
[281] See Parent Exhibit A, at 6.
[282] See Transcript, 444, November 17, 2023.
[283] See id. at 444 – 445.
[284] See Transcript, at 444-445, November 17, 2023..
[285] See Transcript, at 83, November 1, 2023.
[286] See District Exhibit 4, at 1 – 3.
[287] See Parent Exhibit C, at 5.
[289] See Transcript, at 404 – 405, November 9, 2023.
[290] See id. at 413.
[291] See District Exhibit 4, at 1.