New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 165440

Student’s Name:

Date of Birth:

District: I Hearing Requested By: Parent

Dates of Hearing: April 25, 2017

April 27, 2017

June 19, 2017

October 20, 2017

November 10, 2017

Actual Record Closed Date: April 5, 2018

Hearing Officer: Judith Schneider, Esq.

APPEARANCES April 25, 2017 April 27, 2017 June 19, 2017 October 20, 2017 November 10, 2018

For Esq., Attorney (via telephone) — Parents

For — DOE

None

For Esq., Attorney (via telephone) — Parents

For Esq., Attorney (via telephone) — DOE

For Esq., Attorney Esq. Attorney — Parents

Parents

Parents

For Esq., Attorney School Psychologist (via telephone) — DOE

For Esq., Attorney — Parents

Parents

CSE Liaison, via telephone — Parents

For Esq., Attorney — DOE

For Esq., Attorney — Parents

Parents

Neuropsychologist (via telephone) — Parents

For Esq., Attorney — DOE

On April 25, 2017, April 27, 2017, June 19, 2017, October 20, 2017 and November

10, 2017, I conducted an Impartial Hearing at the New York City — DOE

(“DOE”) Impartial Hearing Office, 131 Livingston Street, Brooklyn, New York, pursuant to the Individuals with Disabilities Education Improvement Act (“IDEIA”), 20 U.S.C.

§1415, and Article 89 of the Education Law of the State of New York, regarding the special education program of XXX (“the student”).

Procedural History

The proceeding was initiated at the request of the parents (hereinafter “parent”) by correspondence dated January 24, 2017, recorded as received by the Impartial Hearing Office on February 8, 2018. (Ex. A) I was appointed Impartial Hearing Officer on February 10, 2018 and was available to conduct a hearing within 14 days of appointment. At a telephone conference with the parties conducted on March 14, 2017, the initial hearing was scheduled for April 25, 2017, the first mutually available date for the parties and the hearing officer. (T. 2, Ex. IV) Hearings were conducted on that date and thereafter. Submission of closing statements was delayed as a consequence of the need for corrected transcripts which included the testimony of all witnesses. Resubmission of the documentary evidence was necessary in this matter.

Subsequent to my appointment, the parties moved to extend the compliance date on various occasions in light of anticipated testimony, the scheduling of witnesses and submission of evidence and closing arguments and the need for corrected transcripts and resubmitted documentary evidence. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution of this matter. Accordingly, the joint requests for extensions of the compliance dates were granted. (T. 6, 7, 9, 16, 185-196, 250, 439, 541542 )

The current compliance date is April 19, 2018. The record closed on April 5, 2018, upon my receipt of all documentary evidence.

Positions of the Parties

The parent asserts that the DOE failed to provide a FAPE for the 2016-2017 school year (“SY”) when after an unduly delayed CSE review the CSE wrongfully refused to classify the student as a student with a disability. The parent unilaterally enrolled the student in , claims that that placement was appropriate and seeks DOE funding for it. The parent asserts that equitable considerations do not provide support for reduction or denial of DOE funding. (Exs. A, I)

The district asserts that the CSE properly determined that the student was not eligible for special education services because she did not meet regulatory criteria for a disability classification under the IDEA. Further, the district claims that there were no procedural errors rising to the level of a substantive deprivation of FAPE, that is not appropriate because unduly restrictive and that the equities favor the DOE. The DOE also claims that a determination with regard to classification may not be made by the hearing officer but rather must be made by the CSE. (Ex. II)

Cases Presented

Both parties submitted documents for admission into evidence. A list of documents in evidence is appended.

The DOE presented the testimony of school psychologist who chaired the CSE review at issue and conducted certain academic functioning testing considered by the CSE.

The DOE presented the testimony of: the student’s mother (“the parent”);

CSE liaison who participated in the CSE review at issue; neuropsychologist who conducted an evaluation on the student.

Findings of Fact and Conclusions of Law

A) Background

The student attended a private preschool and no academic difficulties were reported to the parent. (Ex. 4-1) The student attended a private school, for and 1111grade in the 2014-2015 and 2015-2016 school years. .

(T. 252-253)

During Kindergarten she had difficulty with reading and the school suggested tutoring during the summer. (Ex. 4-2) The parent provided tutoring from a college student and found the tutoring not helpful. (Ex. 4-2)

Although an “incredibly bright girl” (T. 69), the student continued to have trouble with reading during 1st grade. At the school she received services, first push in and then pull out and eventually 1:1, twice a week from a learning specialist employed by the school who utilized Orton-Gillingham based methods (Preventing Academic Failure (PAF)) but the student continued to have difficulty. (T. 450-451, 475, 518, 519, Exs. 1, 4-4) The student also received services from a writing specialist on a pull out basis. (T. 210) recommended and the parent provided additional tutoring at home from a reading specialist twice weekly who utilized similar methodology (T. 450-451, 475, Exs. 1, 4-2, 14-6) Although the student improved with tutoring she made very slow progress despite the additional services and her own high motivation and cognitive strengths. (Ex. 1) By Spring 2016 informed the parent that the student could not continue at for the 2nd grade (2016-2017 SY) and the school recommended that a neuropsychological evaluation be conducted. Issues of increasing lack of self-esteem and disengagement from the learning process were also reported. (T. 451)

assessed the student on May 3-4, 2016 with a very broad array of instruments and thereafter issued her report. (Ex. 1) She reported Superior range FSIQ of 127(96%ile) and WISC V index scores from Very Superior to High Average (99%ile 82%ile) in all but the Auditory Working Memory index score where she was at the bottom end of the Average range (25%ile). (T. 453-455 , Ex. 1) With regard to academic functioning the Woodcock Johnson showed results lower than expected (even though at young ages scores are inflated) with word attack skills at the 42%ile (early 1st grade) but inability to sound out any nonsense words and “barely” able to do letter-sound correspondence. (T. 456) Scores were weaker when speed was assessed and her word reading fluency was 79 (9%ile). (T. 457) Grey Oral Reading Test (“GORT”) scores for reading rate, accuracy and fluency all fell far below age, grade expectations (5-9%ile) all in the Borderline range. (T. 457,470) The scores on the GORT alone were “deficient” and a “huge red flag”. (T. 461-462) With regard to age and grade her scores were so low that she was not even on the scale. (T. 468-470) Further, her inability to access text was “dramatically impacting” her comprehension and on the Grey Silent Reading Test the student had a standard score of 80 (10%ile). (T. 457, 458) characterized the errors made as classic errors very common for dyslexic students and noted that the data was clustered in a way indicative of dyslexia. (T. 458-458, 460) Phonological processing and rapid naming were also far below age expectations. (T. 461-462) Other tests also yielded data (5-25%ile) indicating that the student was dyslexic. (T. 464-467) Those scores were “extremely discrepant” with the WISC V cognitive results. (T. 467-468)

stated that language arts skills generally were multiple standard deviations discrepant. (T. 472-473)

diagnosed the student with “dyslexia, which is also known as a disorder of written expression and a reading disorder.” (T. (T. 473, Ex. 1) That diagnosis not only was based upon the test results but also considered the type of interventions the student had been receiving at and at home. (T. 474) recommended a full time special education school with small class sizes, students with similar learning needs and teachers trained in teaching bright learning disabled children. (T. 485, Ex. 1)

On May 20, 2016, the parent executed an application for and stated that had said that it would be a “perfect fit” for the student. (Ex. 14)

By undated letter transmitted to the CSE on June 17, 2016, the parent requested special education classification and an IEP. (T. 212-213, Ex. B)

The student was accepted to in June. Although the parent was not certain of the date she believed it was after the June 17, 2016 request for CSE evaluation.

(T. 293-294, 296) By check dated June 20, 2016, the parent paid $5000 as deposit.

On June 27, 2016, the parent executed an enrollment contract for which specified that tuition for the 2016-2017 SY was $54,340. The contract provided that if enrollment was canceled for any reason or the student withdrawn on or after July 1, 2016, the parent would be obligated for the full tuition. (Exs. F, G) The parent testified as to her belief that she would have been bound by the contract even if she accepted a private placement. (T. 243, 270)

The CSE responded to the parent’s request for referral by letter dated August 9, 2016. It requested the parent’s phone number(s) and email address(s) and stated that the lack of information severely limited the ability to schedule appointments. (Ex. 2) There is no indication in DOE records that any earlier attempt to obtain the information or respond to the parent was made and none has been claimed. (Ex. 13) The family was in Europe for several weeks in August but a neighbor was checking the mail. The parent responded on August 17, 2016 via email and telephone with the requested information and informed the CSE that the family would be back in New York on August 25. (Exs. 2-2, 13-2) The SESIS record states that the parent had called the social worker to whom she had been directed, on August 17 and had, in addition to providing contact information, stated that she did not know what school the student would be attending in September. (Ex. 13-2)

By letter dated September 6, 2016, to the CSE the parent reminded the CSE that no meeting had been scheduled and informed it that the student would start the school year at unless there was an appropriate IEP and placement recommendation. (Ex. C)

By letter dated September 9, 2016, emailed to the parent the same day, an interview with the parent was scheduled for September 13, 2016. In the attachment titled “What to Bring”, to which the parent’s attention was directed, the parent was instructed to bring “Latest report card/transcript (if applicable)”. The letter itself specified, among other things, that “If you have a current medical examination report, or other evaluations or reports regarding your child, please bring them with you to the meeting.” (Exs. 15, 13-2)

At the September 13, 2016 interview, the parent signed a consent for evaluation (Ex. 3) and provided the Neuropsychological Report (Ex. 4) The DOE was also informed about tutoring which had been provided by the school and by the family while the student was at and that her difficulties in reading had continued. Further, the district was informed that student had been enrolled at for her 2nd grade and that she had attended for less than a week. (Ex. 4) I find no basis for a conclusion in the evidence presented here that at the interview district staff requested precise information about the nature and results of the tutoring or in any way indicated that that information would be relevant. (T. 167-168

By letter dated September 21, 2016, after the social history interview, the CSE acknowledged receipt of the parent’s September 6 letter and stated that it would contact her with regard to a meeting date and time to review the documentation. (Exs. 5, 4)

On October 18, 2016, School Psychologist conducted an testing for a Confidential Educational Evaluation (“Educational Evaluation” or “the DOE Report”) issued November 1, 2016. (Ex. 7) The DOE report noted that the student had received in school support and private tutoring for reading. The evaluator stated that the purpose of the report was to provide updated information concerning the student’s functioning because academic achievement changes can result from exposure to instruction and to various learning strategies. (T. 60, Ex. 7) The student’s cognitive functioning was not, however, tested again as those results (WISC V) were within 3 years old and considered valid. (Ex. 7) It was noted the full Working Memory Score had not been provided in the Neuropsychological Evaluation and that, therefore, individual subtest test scores should be considered in place of the working memory domain. (Ex. 7-2)

confirmed, however, that the student’s auditory short term memory was weak (25%ile). Math skills were not tested because this was an area of strength. (T. 118, Ex. 9)

The sole new testing was with six subtests of the Kaufman Test of Educational Achievement (“KTEA-3). (Ex. 7-5) The KTEA-3 can be used as a grade and aged based assessment and this student was compared to same age students. (T. 51-52) Students performing within the 25th to 75th percentile are assessed to be performing within the average range of expectations, students performing from the 16th to the 24th percentile are assessed to be performing within the low average range, which means “slightly below expectations but not significantly below,” and students performing below the 16th percentile are considered to be performing below age-level expectations. (T. 52)

reported that all the reading areas assessed placed the student within age level expectations. (T. 55) The student demonstrated average/low average performance on the tasks assessing skills in untimed nonsense word decoding (18%ile), sight word recognition (23%ile), silent reading fluency(37%ile) and reading comprehension(30%ile). The evaluator concluded that although the student was unable to answer literal or inferential based questions from reading passages, her reading comprehension score indicated that reading comprehension were developing according to age and grade level expectations. She also concluded that although basic reading skills could be considered a personal weakness in view of her other advanced cognitive verbal abilities, her phonetic analysis skills appeared to be developing within normal limits and were not causing significant impairments to her silent reading fluency or comprehension skills at that time. Writing skills were assessed by a spelling task and the student’s score was at the 37%ile. Language processing skills were assessed with a measure of Letter Naming Facility on which she scored 92%ile- High Average. The evaluator stated that rapid letter naming skills were also evident in her performance on word identification and reading fluency tasks. (T. 52, Ex. 7) described the student as an incredibly bright girl who applied her reasoning ability and cognitive strengths to compensate for identified areas of weakness and was therefore able to achieve across all academic areas which were assessed. (T. 69)

On October 28, 2016, the student was observed at by DOE staff. (Ex.

6) The student was in her language arts class and there were 3 students present in the class. The observation noted that the student received 1:1 attention, prompting and praise from the teacher and that she was seen to be able to follow the teacher’s instructions and directions. (Ex. 6)

On November 9, 2016, the CSE convened. the special education teacher who conducted the classroom observation, who participated as school psychologist and district representative, a DOE general education teacher and the student’s mother were present and and the student’s language arts teacher, both participated by telephone from for the entire meeting. (T. 36-39, Exs. 94, 10) The parent received all district evaluative material by the time of the meeting. (T. 45, 103) The CSE reviewed the neuropsychological evaluation, the social history, the classroom observation, the DOE educational evaluation and information received from the parent and which included the opinion that the student required a structured, sequential multi-sensory language based approach to learning, that her strong listening skills and visual memory masked significant deficiencies in decoding and spelling which would increasingly impact her performance and widen the gap with typically developing students and that they did not agree with a determination that the student was not eligible for special education services or that a special education class would be appropriate (T. 48, 71-73, 83-89, 180, 182, Exs. 8, 9, 10, 11, E)

The CSE’s Present Levels of Performance and Individual Needs (Exs. 9, E) noted the student’s Average and High Average results on the KTEA. It stated that although on the untimed decoding test the student was in the 18th percentile, within the lower end of the average range and her phonetic analysis skills were below what could be expected based upon her verbal abilities, it was not causing significant impairments to her silent reading fluency or comprehension skills at the time of the review and was not adversely impacting her educational performance. The CSE noted, however, that reported, among other things, that she was not fluent in oral reading and that her comprehension was limited by her decoding difficulties. The CSE stated that the parent reported that the student had made great progress in the current placement.

The CSE concluded that the student did not meet the eligibility criteria for an educational disability pursuant to State regulations because “her weaknesses were not significantly impairing her ability to learn and given that she was making progress at with the systematic evidence-based strategies in place” she was not eligible for a learning disability classification, the only possible classification. (T. 74-75) It attributed the diagnosis of dyslexia to the discrepancy between the student’s intelligence and her reading skills reported by and her belief that the as using a medical model and not “ a classification model that accounts for response to intervention” and whether with the interventions in place the student is performing at the expected level for their grade and age. (T. 91-92, Exs. 9, E) testified that the discrepancy model cannot be used by the DOE to determine whether students in kindergarten through 4th grade have a learning disability. (T. 92)

No reference to the tutoring the student received while attending was made by the CSE in its November 9, 2016 determination. (Exs. 9, E) No one from attended and the CSE did not request reports or other information at the review concerning the nature and/or results of the tutoring provided. (T. 101, Exs. 9, E) The CSE had no reports from at the time of the review, had not communicated with any teachers and had no knowledge with regard to the nature of the interventions provided by and/or progress in them other than what was in the social history. (T. 101, 125-126, 130)

By letter dated December 6, 2016, the parent informed the CSE of disagreement with the November 9, 2016 CSE determination, that the student would continue to attend and that DOE funding for that placement would be sought. (Ex. D)

is a full time special education school for children with language-based learning disabilities although not all of its enrollees have been classified by a CSE. (T. 305, Ex. K) Its Manhattan campus, which the student attends, has approximately 205 students in grades 2-7, ages 6-15. (T. 303-304) All teachers are required to take a training course at the school, which includes multisensory reading instruction including Orton-Gillingham methodology, Teaching Basic Writing Skills and Language Literacy and Learning, and for their first year of teaching are required to work as an assistant teacher with a mentor teacher. (T. 306-307) Ongoing and frequent professional development is also required and provided. (T. 308) The student/teacher ratio is generally 4:1 and in the language arts classes there a typically 6-10 students. (T. 304)

The student was in the 2nd grade for the 2016-2017 school year and was placed in a homeroom class of 13 with a teacher and an assistant teacher. (T. 315-316) Her homeroom teacher has a master’s degree in special education with a focus on learning disabilities. (T. 316-317) During the homeroom period students have an opportunity to check in with their other teachers about homework or other issues. (T. 317) She is in 3 ELA classes of 5 (decoding and spelling, reading from a controlled reader, writing skills), all taught by her homeroom teacher. (T. 319-321) The students in her classes had similar cognitive and academic functioning needs in the areas being taught. (T. 334-335)

The student progressed through the school year in reading (T. 326) spelling (T. 330) and writing (T. 330-332) and progress in achieving goals designed for her specific needs was documented (T. 338, 341-342, 352, 358, Ex. L). To assess progress utilized direct teacher observation, program-based proficiency measures, in-school based testing and norm-referenced standardized testing. (T. 344-345, Ex. L) It was estimated that he had advanced approximately one grade level in reading and had concluded her 2nd grade year at beginning to mid 2nd grade level. (T. 361-361)

For math, an area of strength, she was placed in a class of 8 with students with similar strengths and weaknesses. (T. 367) Her math teacher is New York State certified and has a masters degree in special education, general education and bilingual education.

(T. 365) The student progressed approximately one grade level in math to beginning 3rd grade level. (T. 367) Social studies and science classes, with up to 12-13 students, which took into account common c ore curriculum were provided. (T. 368, Ex. I)

2) Conclusions

The legal standard applicable to a request for reimbursement for educational services is well established. Reimbursement is granted if: (1) the services offered by the Board of Education are inadequate or inappropriate (Prong 1); (2) the services selected by the parent are appropriate (Prong 2) ; and (3) equitable considerations support the parent's claim (Prong 3). Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); School Comm. of Burlington v. Department of Educ. of Mass., 471 U.S. 359 (1985). In New York State the DOE bears the burden of proof with regard to Prong 1 and the parent bears the burden of proof with regard to Prong 2. Educ. Law 4404[1][c]

Prong 1 1

In New York State the DOE bears the burden of proof with regard to whether a FAPE was provided. Educ. Law 4404[1][c] Further, I note that under §§1412 and 1415 of the IDEA, a free appropriate public education is available to all children with disabilities residing in the State between the ages of 3 and 21, and courts and hearing officers have broad authority to grant such relief as they deem appropriate. 20 U.S.C. §§1412(a)(1), 1415(i)(2)(C)(iii); Forest Grove Sch. Dist. v. T.A, 129 S. Ct. 2484, 2492 (S. Ct. 2009); Frank G. v. Bd. of Educ., 459 F.3d 356, 371 (2d Cir. 2006).

An appropriate educational program begins with an Individualized Education Program (IEP) which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal

Record references not specified in this section are specified above.

No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). While school districts are required to comply with all Individuals with Disabilities Education Act procedures, not all procedural errors render an IEP legally inadequate under the IDEA (Grim v. Rhinebeck Cent. Sch. Dist., 346 F. 3d 377, 381 [2d Cir. 2003]) If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a free appropriate public education (FAPE) (J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]). A denial of a FAPE occurs when procedural inadequacies either result in a loss of educational opportunity for the student, seriously infringe on the parents' opportunity to participate in the IEP formulation process (see Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 659 [S.D.N.Y. 2005]; W.A. v. Pascarella, 153 F. Supp. 2d 144, 153 [D. Conn. 2001]), or compromise the development of an appropriate IEP in a way that deprives the student of educational benefits under that IEP (see Arlington Cent. Sch. Dist. v. D.K., 2002 WL 31521158 [S.D.N.Y. 2002]). In evaluating the substantive program developed by the CSE, the Second Circuit has observed that “for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression” (Weixel v. Bd. of Educ., 287 F.3d 138, 151 [2d Cir. 2002], quoting M.S. v. Bd. of Educ., 231 F.3d 96, 103 [2d Cir. 1998]). This progress, however, must be meaningful; i.e., more than mere trivial advancement (Walczak, 142 F.3d at 130). The IDEA, however, does not require school districts to develop IEPs that maximize the potential of a student with a disability (Rowley, 458 U.S. at 197 n.21, 199; see Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132. However, “To meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances….” and “a student offered an educational program providing ‘merely more than de minimis progress’ from year to year can hardly be said to have been offered an education at all.” Endrew F. v. Douglas County School District, 580 U.S. ___ (2017), 2017 WL 1066260 (March 22, 2017). The student's recommended program must also be provided in the Least Restrictive Environment (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

In this matter, the parent asserts that the student should have been classified as a student with a disability and that the CSE’s failure to do so was a denial of FAPE. The parent claims that evaluative material supporting classification was not considered and/or given appropriate weight, that the CSE’s decision was predetermined and that the opinions and experiences of professional staff who knew the student were ignored.

did not dispute testing done by but stated that she relied on the “updated” information provided by the KTEA and a teacher oral report.

(T. 113-114) The oral report, which clearly was anecdotal, concerned the student’s performance at in the some two months she had been there in a very intensive reading program in very small classes of no more than six. I give that no weight in this matter in determining the issue of classification. Both the parent and staff believe the has a disability which requires the intensive program provided. That some of those Response to Intervention (“RTI”) strategies might be provided in a public school setting after an unknown period of evaluation does not support the CSE’s conclusion that they would be appropriately effective in a setting and program very unlike (T. 80-82, 133)

I find credible testimony that her conclusion of a disability was based upon the totality of the comprehensive testing that she did and the ineffectiveness of an array of interventions which the student received and about which she had been informed by staff. (T. 505-506) Substantial discrepancies in student test results was a factor but not the sole basis for her conclusion. (T. 500, 521) She concluded based upon that and her observations in district schools that the student could not make progress in a general education classroom and that strategies could not be provided to the level of this student’s needs. (T. 525, 537) She opined that substantial intensity was required for this student to make progress and that the gaps would get bigger over time without that. (T. 485-486, 488-489, 496-497) She stated that the student met the IDEA definition of a learning disability “100%”. (T. 493-494) staff similarly informed the CSE.

The DOE relies upon the results of certain subtests of one test (KTEA) which it claims invalidated the evaluation results. I note testimony that the testing done by did not cover all areas upon which determination was based and therefore did not invalidate that. (See T. 511-512, 515, 518) I find that testimony persuasive. However, a determination with regard to the validity and adequacy of the district’s testing is not required in this matter.

It is the DOE’s burden to establish that a recommended program was supported by sufficient evaluative material. See 8 NYCRR 200.4[b][4][5][6] “Any evaluation of a student with a disability must use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the student, including information provided by the parent, that may assist in determining, among other things the content of the student's IEP (20 U.S.C. § 1414[b][2][A]; 34 C.F.R. § 300.304[b][1][ii]; see Letter to Clarke, 48 IDELR 77 [OSEP 2007]).” Appeal No. 11-025. A determination with regard to a disability likewise requires sufficient evaluative material.

testified that determination of learning disabilities is made when after being provided with learning experiences and evidence-based instruction at the general education level and supported by tiered instruction, progress monitoring data shows that the despite the instructional strategies and approaches the student is still unable to adequately demonstrate sufficient progress. (T. 75-78) in this matter the CSE was aware that the student had received various interventions including school based and privately provided tutoring. It is noteworthy that opined that the interventions provided at were consistent with RTI procedures and the student was still only an emergent reader (T. 476-477)^[2] However, the CSE made no inquiry as to the nature and results of the tutoring neither of the parent nor of staff notwithstanding the importance of that information to its determination that RTI strategies were required before a determination of disability could be made. I also note that there is no basis in the record here that the parent was informed of any CSE need for specific information concerning efforts made during the student’s attendance at the previous year.

Based upon the foregoing, I find that the CSE had insufficient information to support its determination and that therefore the student was denied a FAPE. Further I find that to the extent the CSE’s failure to obtain and consider necessary information is a procedural defect that defect resulted in a loss of educational opportunity for the student, seriously infringed on the parents' opportunity to participate in the IEP formulation process and compromised the development of an appropriate IEP in a way that deprives the student of educational benefits under that IEP. Accordingly, a FAPE was not provided.

I therefore do not address such other claims as have been made by the parent.

Prong 2

When a public school system has failed to provide FAPE, the program and services chosen by the parent are “proper under the Act” if the education provided is “reasonably calculated to enable the child to receive educational benefits.” Carter, 510 U.S. at 14. The parents bear the burden of proof with regard to the services obtained by the parents for the student. However, parents are not barred from reimbursement if their program does not meet the IDEA definition of a FAPE. See 20 U.S.C. §1401(9), Frank G. v. Bd. of Educ. of Hyde Park., 459 F. 3d 356 (2nd Cir. 2006). It is not required that the provider of the services be State-approved to provide instruction to children with disabilities. Carter, 510 U.S. at 10. The student need not be the least restrictive environment. Frank G, 459 F. 3d at 364.. “Ultimately the issue turns on whether a placement…is ‘reasonably calculated to enable the child to receive educational benefits.’ [internal citations omitted] …”, Frank G, 459 F. 3d at 130. No one factor is necessarily dispositive in determining that. Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982). Parents 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. Id. at 364-365. See also Gagliardo v. Arlington Cent. Sch. Dist., 489 F 3d. 105, 115 (2d Cir. 2007). LRE considerations is only one factor in considering the appropriateness of a parental placement. C.L. v. Scarsdale UFSD, 744 F. 3d 826, 836 (2d. Cir. 2014)

Credible evidence, detailed above, shows that was familiar with the student’s needs and provided a program designed to meet those needs. (T. 310-31, 324,

330) The program was consistent with the recommendations of who opined that was appropriate for this student. (T. 490) Indeed testified that the student was receiving appropriate RTI supports in a small group setting at

(T. 80-83) Teachers were appropriately trained and the evidence shows that the student progressed.

The district asserts that the program was not appropriate because it was unduly restrictive. (Ex. II) I note that opined that the program was too restrictive for the student because it eliminated access to typically developing peers which the student required. (T. 94) However, it is well established that a parent is not held to the same standards as a district with regard to LRE. In the circumstances here, which include the credible testimony concerning the emotional impact on the student of the consequences of her disability including the need to be pulled out of classes to provide necessary interventions in a small group setting (T. 216), I find that LRE considerations are not a basis for concluding that the placement was not appropriate.

I find that the parent has met her burden to establish that the unilateral placement provided was reasonably calculated to enable the student to make meaningful gains in her circumstances.

Prong 3

The determination of whether equitable factors support a parent’s claim for tuition reimbursement hinges, in large part, on whether or not a parent cooperated with the DOE and CSE. See generally Burlington, 471 U.S. 359; Carter, 510 U.S. 7; see also Mr. & Mrs. A ex rel. D.A. v. N.Y.C. Dep’t of Edu., 769 F. Supp. 2d 403, 430 (S.D.N.Y. 2011); see also N.R. ex rel. T.R. v. Dep’t of Educ. of City Sch. Distr. Of N.Y., No. 07 Civ. 9648, 2009 WL 874061, at *14 (S.D.N.Y. Mar. 31, 2009). It is well established that a parent’s subjective intent, or preference for a nonpublic educational setting, is not relevant to a determination of the equities, even if, in seeking tuition funding, the parent has, as “[p]resumably, nearly all parents who make unilateral placement . . . and then seek tuition reimbursement, act[ed] at least in part out of a hope, belief, or expectation that the school district [would] ultimately be forced to fund [the] placement,” Mr. & Mrs. A. ex rel. D.A., 769 F. Supp. 2d at 430; see also N.R. ex rel. T.R. 2009 WL 874061, at *14. See also C.L. v. Scarsdale UFSD, 744 F. 3d 826 (2d Cir. 2014) (“[Parents] pursuit of a private placement was not a basis for denying their tuition reimbursement, even assuming…that the parents never intended to keep [the student] in public school.”)

In the instant matter the district asserts that the parent never intended to place the student in public school and that therefore reimbursement should be denied. (Ex. II) It states with regard to that that the contract would have required the payment of tuition even if an appropriate public school had been timely identified by the CSE and that there is no evidence indicating that a later application to would have foreclosed the student’s attendance there. (T. 243, Ex. II) With regard to the DOE’s claim I note that a parent’s preference for a private school placement, which I find was the circumstance in this matter, does not demonstrate lack of cooperation barring reimbursement. C.L. Further, the parent credibly testified as to her anxiety about having no 2nd grade placement for the student in view of s refusal to let her continue there. (T. 265)

With regard to the parent’s cooperation with the CSE in the conduct of the review, I note the parent provided no documents from and did not present witnesses. However, the parent informed the CSE about the tutoring. She was not informed of the relevance of the student’s response to interventions to a determination of special education needs nor was she specifically requested to provide information concerning that to the CSE although it was aware that the tutoring had occurred there. Although I am not persuaded that the parent received no documents from concerning the student’s difficulties and the measures tried, I find no basis for concluding that the parent understood that they were required and willfully withheld them. (T. 290-291) I also note the substantial delay by the CSE before attempting to contact the parent after the June 17 request was made. There is no evidence or claim that the family’s period out of the country impeded the CSE. In the above circumstances, I find no basis for denial or limitation of reimbursement.

ORDER

1) The parent is entitled to reimbursement for tuition at for the 20162017 SY in an amount that shall not exceed $54,340 the DOE shall promptly reimburse the parent upon submission of satisfactory evidence of payments made.

2) The CSE shall reconvene to consider the student’s special education needs including if appropriate a specification of disability classification. The CSE shall be provided with a copy of this decision prior to the reconvene date.

Dated: April 20, 2018

Judith Schneider mv

JUDITH SCHNEIDER, ESQ.

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 parties' 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 proceedings before a 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 available at http://www.sro.nysed.gov/part279home.html.

EXHIBITS

District

1 Neuropsychological Eval. ( Assessed 5/3-5/4, 2016, 22 pgs.

2 Incomplete Letter Notice from DOE to Parent and Response, 8/9-8/17/16, 2 pgs.

3 Consent for Initial Evaluation, 9/13/16, 1 pg.

4 DOE Social History Report, 9/13/16, 3 pgs.

5 DOE Response to Parent’s 10 day Notice, 9/21/16, 1 pg.

6 DOE Classroom observation, 10/28/16, 2 pgs.

7 DOE Educational Evaluation, 11/1/16, 5 pgs.

8 Ineligible for Special Education Services Letter, 1/9/16, 2 pgs.

9 Present Levels of Performance and Attendance Page , 11/9/16, 4 pgs.

10 Meeting Minutes, 11/9/16, 1 pg.

11 Prior Written Notice (Notice of Recommendation) 3 pgs.

12 DOE Response to Parent’s Ten Day Notice, 12/22/16, 1 pg.

13. SESIS Events, Multiple dates, 2 pgs.

14 Application, 5/20/16, 11 pgs

15 Email Communications CSE to Parent re Social History Appt. 9/9/16, 3 pgs.

Parent

A Due Process Complaint, 1/24/17, 5 pgs.

B Parent Referral Letter, 6/17/16, 2 pgs.

C Follow Up Letter, 9/6/16, 2 pgs.

D Parents letter post IEP Meeting, 12/6/16, 3 pgs.

E Ineligible for Special Education Services, 11/9/16, 5 pgs.

F Enrollment Contract, 6/19/16, 5 pgs.

G Affidavit of Payment, 2/15/17, 1 pg.

H Proof of Payment, various dates, 3 pgs.

I Class Schedule, 2016-2017, 4 pgs.

J Attendance Record, 2016-2017, 4 pgs.

K Program Description, undated, 4 pgs.

L Status Reports/Report Card and Testing Grid, 10 pgs.

M School Release of Information Form, 9/21/16, 1 pg.

Impartial Hearing Officer

I Parent Closing Statement

II District Closing Brief

III Subpoena and objections

IV Prehearing Conference Memorandum

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Footnotes

[2] RTI is described in State guidance "as a multi-tiered early prevention system designed to improve outcomes for all students" ("Response to Intervention, Guidance for New York State School Districts," Office of Special Educ., at p. 2 [Oct. 2010], available at http://www.p12.nysed.gov/specialed/RTI/guidance- oct10.pdf).