Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 258266

Student’s Name: [REDACTED] (“Student”)

School District: [REDACTED]

Impartial Hearing Officer: Jaime Kotchek

Date of Filing: 9/7/2023

Hearing Requested by: [REDACTED] (Collectively the “Parents”)

Date of Hearing: 12/7/2023

Record Close Date: 12/15/2023

Date of Decision: 12/15/2023

BACKGROUND

Parents, through counsel, filed a Due Process Complaint (“DPC”) on or about September 7, 2023. 1 In the DPC, Parents allege that the Department of Education (“DOE” or “District”) failed to offer Student a free appropriate public education (“FAPE”) for the 2023-2024 school year.^[2] By way of relief, Parent seeks an award of direct tuition funding and tuition reimbursement for Student’s attendance during the 2023-2024 school year at Private School, a private program not approved by the Commissioner of Education for the education of students with disabilities, and transportation to and from Private School.^[3] Furthermore, Parents allege that the equities support their claim. ^[4]

As fully discussed below, I find that: (i.) the DOE failed to meet its burden that it offered Student a FAPE for the 2023-2024 school year, (ii.) Private School offers Student with specially designed instruction sufficient to meet Student’s needs, and (iii.) the equities support Parents’ requested relief.

PROCEDURAL HISTORY

An Impartial Hearing Officer was assigned to this matter on September 19, 2023. On October 13, 2023, the parties appeared for a virtual Pre-Hearing Conference. On November 13, 2023, the parties appeared for a Status Conference. On December ^[1], 2023, this matter was transferred to the undersigned Impartial Hearing Officer (IHO).

On December 7, 2023, both parties appeared for a virtual Due Process Hearing. The DOE Attorney submitted Exhibits 1-4 into the record, on consent. Parent Attorney submitted Exhibits B-F^[5] into the record, on consent. The DOE did not produce any witnesses. Parents produced two witnesses, the Director of Program at Private School^[6] and Parent.^[7] DOE cross-examined both of Parents’ witnesses. The parties made oral opening and closing statements. A list of the documentary evidence in this proceeding is appended to this Decision.

FINDINGS OF FACT AND DECISION

After a full review of the record generated at hearing, I make the following findings of fact and determinations:

Student is in 11th grade.^[8] Student is classified by the DOE as a child with “Other Health Impairment.”^[9] Student is diagnosed with Attention-Deficit Disorder-Combined Type and a Specific Learning Disorder with impairment in Mathematics. 10 Student’s classification and entitlement to special education programming and services is not in dispute.

An Individualized Education Program (“IEP”) dated March 3, 2023 (“2023 IEP”) recommended special education programs and services consisting of: Integrated Co-Teaching Services in ELA,^[10] periods per week; Integrated Co-Teaching Services in math, 5 periods per week; Integrated Co-Teaching Services in social studies, 5 periods per week; Integrated CoTeaching Services in sciences, 5 periods per week; Counseling Services, individual service, 45 minutes per week; and Counseling Services, group setting, 45 minutes per week.^[11] The Placement Recommendation was a DOE Non-Specialized School. ^[12]

The Present Levels of Performance, in the 2023 IEP, references Student’s English progress report from Private School, for the 2022-2023 school year, and provides “[Student] is a student who benefits from having time in school with a teacher present to complete all work (both classwork and homework). She struggles to finish assignments and meet deadlines. She needs flexible deadlines and one-on-one time scheduled into her day to work with an instructor on completing her work.” ^[13]

The Present Levels of Performance also references Student’s history progress report from Private School, for the 2022-2023 school year, and provides “[Student] demonstrates weaknesses in the areas of executive functioning, writing and assignment completion. In the area of executive functioning, [Student] demonstrates difficulty with sustained attention, impulsivity and organizational skills.” ^[14]

The Present Levels of Performance provides “Parents and school feel that an ICT classroom would be too large of a setting for [Student] as she requires a lot of redirection and refocusing. [Student] would get distracted and it would be too difficult for her to complete her work. Parents worry that her inability to self advocate would make it difficult for her to learn and progress in a general education classroom. Parents are also concerned this would negatively impact her emotionally and socially.” ^[15]

The Present Levels of Performance provides “[Student] presents with ADHD, specific math disability and executive functioning concerns. She struggles with sustained attention, distractibility, planning organization and multi-steps. This seems to be her predominant issue at this time. Classification was switched from learning disability to Other Health Impaired. An ICT

Under Management Needs, the 2023 IEP provides the following: “Active reading strategies such as highlighting, color-coding and annotations; word wall to build vocabulary; refocusing; preferential seating; modeling; calculator; explicit instruction; prompt/cues; extended time-longer assignments, scaffolding; info broken down; help with organization; frequent praise/encouragement; immediate feedback; teacher check-in; redirection; repetition & paraphrasing; movement breaks; previewing; visual and/or verbal aid with mathematic word problems; graphic organizers and outlines for reading and writing activities; instructions and assignments broken down into smaller units of learning; practical understanding of how subjects relate to real life experiences; multi-sensory approach to learning, when feasible; sentence starts and checklists for writing; editing and revision checklists for writing; use of a planner or calendar to help with time management and deadlines.” 17

Under Parent Concerns, the 2023 IEP provides “Parent reported concerns that [Student] has anxiety and will shut down in a larger class setting, especially when learning new information. She needs constant redirection especially with multi-step instruction. [Director] added that [Student] can be very sensitive and gets upset when called out or corrected in a large group setting. She will get easily distracted and distract others.” 18

Director of the Program at Private School (“Director”) testified. Director is a certified school psychologist and a licensed special education teacher, who has worked with students with learning disabilities for over thirty-five (35) years. 19 I found Director’s testimony to be credible, relevant, reliable, and supported by the documentary evidence. I found no reason to doubt the veracity of his testimony.

Director attended the 2023 IEP meeting.^[20] Director testified that at the 2023 IEP meeting, Director expressed significant concerns with the DOE’s recommendations, including the ICT class size.^[21] The DOE’s recommended class was too large for Student.^[22] Student would not be able to successfully learn material, stay focused and stay on track in a class that size.^[23] Student already faced challenges in Private School, where the classes were approximately half the size of DOE’s

16 Ex. 2-5 17 Ex. 2-4 18 Ex 2-19 19 Ex 4-1

Director opined that DOE’s recommendation “would not have been appropriate for her to make academic progress, given her significant difficulties with focusing, attention and some of the other issues that she has around her needs, in terms of having ADHD that is both hyperactive and difficulty with attention and focus.” 27 Director further testified that the 2023 IEP counseling goals do not meet Student’s needs as it does not address organizing, planning or time management in a substantial way. ^[28]

Parent also testified. I found Parent’s testimony to be credible, relevant, reliable, and supported by the documentary evidence. I found no reason to doubt the veracity of her testimony. Parent described Student as highly disorganized and easily distracted.^[29] Parent was present at the 2023 IEP meeting.^[30] Parent arranged for teachers from Private School to participate in the meeting as well.^[31] At the meeting, Parent voiced concerns with DOE’s recommendation based upon the class size; and further, that Student could not keep pace in an integrated program.^[32] Student requires a lot of individual attention and has a lot of anxiety.^[33] Parent expressed those concerns at the IEP meeting; however, the DOE did not make any changes in light of those concerns. ^[34]

A review of the DOE’s Psychoeducational Evaluation Report dated March 2, 2022, demonstrates that it does not provide any specific recommendation, but rather states “[a]ppropriate recommendations for [Student] will be discussed at her upcoming CSE review where all relevant information will be reviewed.” ^[35]

On July ^[27], 2023, DOE sent a Prior Written Notice and School Location Letter, placing Student at DOE Non-Specialized School.^[36] On August 10, 2023, August 23, 2023, and September 15, 2023, Parent contacted the DOE Non-Specialized School by telephone, at two different phone numbers, to no avail.^[37] Voice mailboxes were full.^[38] On one occasion, Parent left a message with an individual, but her call was never returned.^[39] Parent additionally drove by the school, observing that it was huge, which raised concerns relating to Student’s high anxiety. ^[40]

24 Tr. 44-45

25 Tr. 52

26 Tr. 51

On August 23, 2023, Parents sent a Notice of Unilateral Placement, advising the DOE of their intent to place Student at Private School.^[41] Parents never received a response from the DOE. ^[42] Parent placed Student in Private School for the 2023-2024 school year, where Student currently attends. ^[43]

Private School has approximately 188 students enrolled in the high school for the 2023-2024 school year.^[44] Student’s Program at Private School, consists of 56 students for the 2023-2024 school year.^[45] The Program is specifically for students with significant learning disorders.^[46] The program modifies the curriculum as needed and content is individually tailored to each student. ^[47] Student’s core classes at Private School are between 13 and 16 students.^[48] Private School provides Student with mentoring and support sessions to develop better executive functioning skills, and enable her to complete and submit work on time.^[49] The individualized instruction helps Student process material.^[50] Additionally, Student attends an Academic Mentoring class, which consists of 2 students, and works on developing critical executive functioning skills, including strategies to improve organizational skills, planning, time management, study skills, stress management and other skills to become more a more independent learner, taught by a certified school psychologist.^[51] Student meets with the school psychologist once every two weeks for 45 minutes, and can reach out as needed.^[52] Thus far this school year, Student has struggled a bit, and has been improving. ^[53]

Parents signed the Private School enrollment contract on June 21, 2023.^[54] Parent explained that was to ensure that Student had a school to attend for the 2023-2024 school year, and Parents were able to back out of the contract if the DOE provided Student with a sufficient placement. ^[55]

Burden

Burlington/Carter Test

The Supreme Court established the Burlington/Carter test, to determine whether a parent is entitled to receive the cost of a student’s private school tuition. A district must pay the cost of student’s tuition if: 1.) the District denied the student a free appropriate public education (FAPE); 2.) the placement is appropriate; and 3.) the equities favor the parent (see Sch. Comm. of Burlington v Dep't of Educ., 471 U.S. 359 [1985]; Florence County Sch. Dist. Four v Carter by & Through Carter, 510 U.S. 7 [1993]).

Prong I

The IDEA provides that children with disabilities are entitled to a Free Appropriate Public Education ("FAPE") (20 U.S.C. § 1400 [d][1][A]). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written Individualized Education Program (“IEP”) (34 C.F.R. § 300.13). A school district has offered a student a FAPE when: (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits. (see Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v Rowley, 458 U.S. 176 [1982]). In order to meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances” (Endrew F. v Douglas County Sch. Dist. RE-1, 580 U.S. 386 [2017]).

As to Prong I of the Burlington/Carter standard, the DOE failed to demonstrate that it provided Student with a FAPE, and it is DOE’s burden to do so. While the DOE submitted the 2023 IEP into the record, it offered no explanation as to how the CSE made its recommendation or whether the IEP was meaningfully calculated to confer educational benefit to the Student.

At the hearing, the DOE did not produce any witnesses and relied upon its documentary evidence to demonstrate that the DOE provided a FAPE to Student for the 2023-2024 school year. The DOE asserted that it may meet its burden by relying only upon documentary evidence. ^[56]

Courts and the State Review Office (SRO) have held that a district may establish that it provided a Student with a FAPE by relying only upon documentary evidence, without witness testimony. In order to establish a FAPE based on only documentary evidence, a district should offer all documentation relating to the evaluation of a student and the CSE’s recommendations, including prior written notices (see L.O. v. N.Y. City Dep't of Educ., 822 F.3d 95, [2nd Cir. 2016]. The SRO has held that the District established that it provided Student a FAPE when it submitted a psychoeducational evaluation, progress reports, a social history update, prior written notice and a school location letter, and that evidence was “sufficient for the IHO to address the particular issues raised by the parent;” and further, “the IEP adequately addressed the student’s needs and Here, the DOE failed to establish that it provided a FAPE to Student based upon the documentary evidence. The DOE submitted the following exhibits into evidence: Due Process Complaint, IEP, Prior Written Notice and School Location Letter, and a Psychoeducational Evaluation Report. However, the Psychoeducational Evaluation report provided no recommendation. Further, the Psychoeducational Evaluation does not address Student’s executive functioning, distractibility, hyperactivity or attention issues, according to Director.^[57] The DOE produced no testimony or documentation to rebut or respond to this assertion.

The 2023 IEP identifies and describes Parent’s concerns with the DOE’s recommendation multiple times throughout the IEP.^[58] However, the IEP does not address those concerns or provide an explanation for the recommendation despite those concerns. The Present Levels of Performance describe Student’s significant, struggles with attention, distractibility, anxiety and need for constant redirection,^[59] nevertheless, the DOE recommends a class size that is significantly larger than Student’s current class size,^[60] without providing any explanation or reasoning to support its decision. The 2023 IEP states “DOE explained that an ICT classroom provides the support of two teachers to redirect her and will provide her with a general education curriculum that can challenge her academically.”^[61] However, this conclusory statement, without further detail, does not sufficiently address Student’s issues and parents’ concerns, identified by the DOE in the 2023 IEP. No witness was produced to provide a further explanation. Moreover, it is not clear if the Management Needs listed in the 2023 IEP address all of Student’s issues and needs, and how the Management Needs would be implemented.

Accordingly, the documentation alone does not address Student’s needs and the DOE declined to “offer a cogent and responsive explanation for their decisions that shows that IEP is reasonably calculated to enable to child to make progress appropriate in light of his circumstances” (Id. at 404). And “it is through the IEP that the free appropriate public education required by the Act is tailored to the unique needs of a particular child” (internal citations omitted) (Id. at 399; citing Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v Rowley, 458 U.S. 176 [1982]).

Moreover, Director, a certified school psychologist and licensed special education teacher, who has worked with students with learning disabilities for over 35 years, opined that the DOE’s recommendation in the 2023 IEP would not be appropriate for student to make academic progress, given her difficulties with focus and attention. Director further stated that Student’s counseling

The record establishes that the DOE failed to demonstrate that it offered Student an educational program reasonably calculated to make progress, given Student’s special education needs. Therefore, the DOE failed to demonstrate that it offered Student a FAPE for the 2023-2024 school year.

Prong II

A private school placement must be "proper under the Act" (see Florence County Sch. Dist. Four v Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 370 [1985]). This means that the private school must offer an educational program, which meets the student's special education needs (see Gagliardo v Arlington Cent. Sch. Dist., 489 F.3d 105 [2d Cir. 2007]); Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119 [2d Cir. 1998]). Parents seeking reimbursement “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate” (Gagliardo v Arlington Cent. Sch. Dist., 489 F.3d 105 [2d Cir. 2007]).

“Subject to certain limited exceptions, the same considerations and criteria that apply in determining whether the school district’s placement is appropriate should be considered in determining the appropriateness of the parents' placement… The issue turns on whether a placement- public or private- is reasonably calculated to enable the child to receive educational benefits” (internal quotations omitted) (Gagliardo, 489 F.3d at 112, quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356 [2d Cir. 2006] [quoting Rowley, 458 U.S. at 207]). “A private placement meeting this standard is one that is likely to produce progress, not regression” (internal quotations omitted) (citing Walczak at 130).

“No one factor is necessarily dispositive in determining whether parents’ unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction” (see Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364).

Tr. 65

A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student. (see 20 U.S.C. § 1401(29); Educ. Law § 4401(1); 34 CFR 300.39(a)(1); 8 NYCRR 200.1(ww); Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372 [2d Cir. 2014]).

The Program at Private School is specifically designed for students with significant learning disorders.^[63] Classes are between 13 and 16 students,^[64] and the curriculum is individually tailored to each Student’s needs.^[65] Student’s executive functioning needs, including organizational and time management issues, are addressed in an Academic Mentoring class, which consists of two students, including Student. Student receives individual support on a weekly basis in math. Additionally, Student meets with a school psychologist once every two weeks for 45 minutes, and as needed.^[66] Student has been making consistent progress during the 2023-2024 school year. ^[67]

Here, Parents established that Private School offers an educational program to Student that meets Student’s special education needs, under Prong II of the Burlington/Carter standard. I find that the Program that Student attends at Private School is appropriate, reasonably calculated to enable Student to receive educational benefits and designed to meet Student’s unique needs.

Equities

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

Here, the DOE did not argue that equitable considerations should prevent Parents from receiving tuition for Private School, nor did DOE argue that tuition should be reduced. Moreover, the record establishes that the equities favor tuition funding for the Parents. Parents were willing participants in the entire educational process. Parent attended the 2023 IEP meeting, and arranged for Private School Director and an instructor to attend, as well.^[68] As demonstrated by their

After receiving the District’s Prior Written Notice and School Location Letter dated July 27, 2023, Parents called the DOE Non-Specialized School on August 10, 2023, August 23, 2023 and September 15, 2023, using two different telephone numbers in an attempt to get in touch with the DOE Non-Specialized School.^[70] Additionally, Parents provided the necessary Ten-Day Notice of their concerns with the DOE’s offer of a FAPE for Student for the school year at issue.^[71] Therein, Parent detailed specific concerns and provided notice of their intention to unilaterally place the Student at the Private School. ^[72]

While Parents signed the Private School enrollment contract on June 21, 2023, Parent explained that this was done to ensure that Student had a school to attend for the 2023-2024 school year, and Parents could back out of the contract if the DOE provided Student with a sufficient placement. ^[73]

Having reviewed the Private School contract, the tuition for the 2023-2024 school year is $78,000.^[74] The DOE did not assert that the amount of tuition was unreasonable. I find no issue with the reasonableness of the tuition cost associated with the Private School. It is undisputed that Student is attending the Private School during the school year at issue.

Parents seek reimbursement for the tuition costs that they already paid to Private School, and to have the balance of unpaid tuition paid directly to the Private School. Direct payment of tuition is relief encompassed in the IDEA (see e.g. Mr. and Mrs. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 406 [S.D.N.Y. 2011]). Direct funding is permissible without proof of income or need (see Cohen v N.Y. City Dep't of Educ., 2023 U.S. Dist. LEXIS 171815 [SDNY 2023]).

After considering the entire record, I find that Parent’s requested relief appropriate and the equities support Parent’s request for tuition at Private School for the 2023-2024 school year.

ORDER

NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS

HEREBY ORDERED, that Parents’ claim for tuition funding for Student’s unilateral placement at the Private School is GRANTED for the 2023-2024 school year as follows: 69 Tr. 44, 79

1. District shall reimburse Parents for the cost of tuition at Private School for the 2023-2024 school year, for amounts already paid, within 30 days of submission of proof of payment;

2. District shall pay directly to Private School, the remainder of any tuition funds, up to a total of $78,000.00 dollars, within 30 days of submission of a signed, notarized bill encompassing tuition costs owed by the Parents to the Private School for the Student’s attendance at the Private School for the 2023-2024 school year.

Dated: December 15, 2023

Jaime Kotchek

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

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

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

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

DISTRICT EVIDENCE

1. Due Process Complaint 9/7/2023 7 pages DOE

2. Individualized Education Program 3/3/2023 20 pages DOE

3. Prior Written Notice and School Location Letter 7/27/2023 11 pages DOE

4. Psychoeducational Evaluation Report 3/1/2022 9 pages DOE

PARENT EVIDENCE

B. Notice of Unilateral Placement 8/23/2023 3 pages

C. Private School Contract 6/21/2023 2 pages

D. Private School Schedule 2023-2024 2 pages

E. Private School Report Card 2023-2024 4 pages

F. Affidavit of Director of Program at Private School 6/15/2023 9 pages

IHO EXHIBITS

I. N/A IHO

Footnotes

[1] Ex. A

[2] Id.

[3] Parents withdrew their request for transportation at the hearing (See Tr. p. 25).

[4] Id.

[5] Parent’s Exhibit A was duplicative of an exhibit produced by District; thus, not entered into the record, on consent.

[6] Ex. F and transcript

[7] See Transcript.

[8] Ex. E

[9] Ex. 2

[10] Ex. F- 5

[11] Ex. 2-12

[12] Ex. 2-17

[13] Ex. 2-2

[14] Ex. 2-3

[15] Ex. 2-3 classroom is being recommended to give her the extra support she needs to maintain grade level standard with regards to prompting, redirection and addressing her math needs. Her math skills are on end of 7th, beginning of 8th grade level, while her ELA is on grade level. Parents reported concerns that she has anxiety and will shut down in a larger class setting, especially when learning new information. She needs constant redirection especially with multi-step instruction.” 16

[20] Tr. 41-42

[21] Tr. 44

[22] Tr. 44

[23] Tr. 45 recommendation. 24 Student struggles with distraction. 25 Student also has executive functioning difficulties, including issues with organization, time management and planning. 26

[27] Tr. 47

[28] Tr. 65

[29] Tr. 70

[30] Tr. 78

[31] Tr. 78

[32] Tr. 79

[33] Tr. 79

[34] Tr. 80

[35] Ex. 4-6

[36] Ex. 3

[37] Tr. 82

[38] Tr. 82

[39] Tr. 82

[40] Tr. 83 In New York, 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 seeking tuition reimbursement for a unilateral placement has the burden of persuasion and burden of production on the appropriateness of such placement (NYS Educ. Law § 4404[1][c]).

[41] Ex. B

[42] Tr. 84

[43] Tr. 84

[44] Ex. F-2

[45] Ex. F-2

[46] Ex. F-2

[47] Ex. F-3

[48] Ex. F-8

[49] Ex. F-6

[50] Ex. F- 6

[51] Ex F-7, 8

[52] Tr. 54-55

[53] Tr. 61

[54] Ex. C

[55] Tr. 86

[56] Tr. 105 that there was no contrary evidence that would rebut that conclusion” (see SRO Appeal No 23- 129).

[57] Tr. 109

[58] Ex. 2

[59] Ex. 2-3

[60] Tr. 44-45

[61] Ex. 2-19 goals did not address her executive functioning issues. 62The DOE produced no testimonial or documentary evidence to the contrary.

[63] Ex. F-2

[64] Ex. F-8

[65] Ex. F-3

[66] Ex. F 7-8

[67] Ex. F-9

[68] Tr. 78 testimony, and the 2023 IEP, Parent and Director actively participated in the meeting and expressed their concerns. 69

[70] Tr. 82

[71] Ex. B

[72] Ex. B

[73] Tr. 86

[74] Ex. C