New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 166694

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: August 17, 2017

March 13, 2018

March 20, 2018

April 17, 2018

June 14, 2018

July 9, 2018

September 13, 2018

Actual Record Closed Date: January 1, 2019

Hearing Officer: Edgar De Leon, Esq. Name Title For Date (T)

Attorney DOE 08/17/17 (T)

03/13/18

03/20/18

04/17/18

DOE Representative DOE 08/17/17 (T)

DOE Representative DOE 03/13/18

Teacher DOE 03/13/18

Special Education Teacher DOE 03/20/18

Principal DOE 04/17/18

DOE Representative DOE 06/14/18

07/09/18

09/13/18

Attorney PARENT 08/17/17 (T)

03/13/18

03/20/18

04/17/18

06/14/18

07/09/18

09/13/18

Mother PARENT 03/13/18

03/20/18

04/17/18

06/14/18

07/09/18

09/13/18

Psychologist PARENT 04/17/18

Social Worker PARENT 06/14/18

School Psychologist PARENT 06/14/18

Director PARENT 09/13/18

On July 7, 2017, I was appointed as the Impartial Hearing Officer (“IHO”’) to conduct a hearing pursuant to the Individual with Disabilities in Education Act (“IDEA”), 20 United States Code, Section 1415(f)(1), ), Article 89 of the New York State Education Law, Part 200 of the Regulations of the New York State Commissioner of Education and Section 504 of the Rehabilitation Act of 1973, concerning a dispute between the Parent of an (__) year old student attending a private school and the New York City Department of Education (“DOE”) - District: , concerning the student’s special education program. I was appointed after the recusal of at least one other THO. After adjournments were granted on consent or for good cause, the impartial hearing was held on August 17, 2017 (telephone pre-hearing conference), March 13, 2018, March 20, 2018, April 17, 2018, June 14, 2018, July 9, 2018 and September 13, 2018. The undersigned requested and the parties opted to submit written closing statements which were due on September 28, 2018. (T-866) The parties’ written closing statements were received on October 11, 2015. (D-31 & P-BBBB) A list of the witnesses who appeared and the documents taken into evidence is annexed to this decision.

BACKGROUND

In this case, the Parent alleges that the students has been denied a “free and appropriate public education” (“FAPE”) for the 2015-2016, 2016-2017 and 2017-2018 school years. At the impartial hearing, the Parent seeks the following relief: (a) A finding that the DOE has failed to provide the student with a FAPE for all of the school years alleged; and (b) A declaratory judgment in favor of the Parent and the student concerning the deprivation of FAPE and implementation of blanket policies, and a ruling that the policies are illegal and should not be applied to the student; and (c) An order establishing stay-put rights for the student (on a 12-month/ESY basis) that should include enhanced rate RSAs for her OT and SLT, as well as enhanced rate P-4 for her SETSS services (agreed & resolved- D- _ ); and (d) An order that the after-school related services should be provided by qualified, licensed professionals directly by the DOE and the Parent should have the option of finding providers who can deliver the services at an enhanced rate; and (e) A Final Order directing the DOE to develop a legally valid TEP for the student which includes with, at a minimum, her current stay-put placement, services and Accommodations; and (f) An award of compensatory education to make up for the discrimination based upon disability in all three school years and any violation of stay-put rights; and (g) An order for a psychoeducational evaluation to be conducted by a psychologist who has expertise in to ensure the accuracy of the reports; and (h) An order that the DOE should conduct an assistive technology evaluation of the student; and (1) An order that the Parent be reimbursed, indemnified and made whole for any actual or accrued costs associated with provision of education and services to the child during the time in question, including but not limited to reimbursement for transportation, related services, tutoring, and evaluations.

@) All other relief the IHO deems necessary and appropriate.

THE DOE’S CASE

The DOE generally argues that it provided the student with a FAPE for the relevant school years and that most of the relief requested by the Parent has already been provided. (D-_ )

The DOE called (3) witnesses to testify on its behalf and submitted (30) documents into evidence. In sum, substance and relevant part, the testimony and documentary evidence for and against the DOE’s case is incorporated in the decision below.

THE PARENT’S CASE

The Parent generally argues that the student has been misclassified as having autism, when in fact she suffers from “ .’ (P-BBBB) As a result, the student has regressed and is delayed between one and four years. (Id.)

The Parent called (5) witnesses to testify on her behalf and submitted (32) documents into evidence. In sum, substance and relevant part, the testimony and documentary evidence for and against the Parent’s case is incorporated in the decision below.

FINDINGS OF FACTS & DECISION

Two purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected. (See 20 U.S.C. § 1400[d][1][A]-[B] and Bd. of Educ. v. Rowley, A458 U.S. 176, 206-07 [1982])

A FAPE is offered to a student when (a) the DOE complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. (See Rowley, 458 U.S. at 206-07 and Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]) While school districts are required to comply with all IDEA procedures, not all procedural errors render an JEP legally inadequate under the IDEA. (See A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003] and Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007])

Under the IDEA, 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. (See 20 U.S.C. § 1415[f][3][E] fi; 34 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4] [i]; v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008] and Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007] aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008])

The IDEA directs that, in general, an impartial hearing officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE. (See 20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction." (See Rowley, 458 U.S. at 203) However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP." (See Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998] and Rowley, 458 U.S. at 189) The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents." (See Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted] and Grim, 346 F.3d at 379) Additionally, school districts are not required to "maximize" the potential of students with disabilities. (See Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379 and Walczak, 142 F.3d at 132) Nonetheless, a school district must provide "an IEP that is ‘likely to produce progress, not regression,’ and . . . affords the student with an opportunity greater than mere ‘trivial advancement." (See Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008] and Perricelli, 2007 WL 465211, at *15) The IEP must be "reasonably calculated to provide some 'meaningful' benefit." (See Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997] and Rowley, 458 U.S. at 192) The student's recommended program must also be provided in the least restrictive environment (“LRE”). (See 20 U.S.C. § 1412[a][5][A]; 34 C.F.R. §§ 300.114[a][2][], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009] and Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008])

An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs (34 C.F.R. § 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals related to those needs (34 C.F.R. § 300.320[a][2]; 8 NYCRR 200.4[d][2][i1i]), and provides for the use of appropriate special education services. (See 34 C.F.R. § 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; SRO No. 07-018; 06-059; 06-029; 04-046; 02-014; 01-095 and 93-09) Subsequent to its development, an IEP must be properly implemented. (See 8 NYCRR 200.4[e][7] and SRO No. 08-087)

The DOE may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim. (See Florence County Sch. Dist. Four _v. Carter, 510 U.S. 7 [1993] and Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]) In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA. (See Burlington, 471 U.S. at 370-71; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007] and Cerra.

v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]) "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE. (See Burlington, 471 USS. at 370-71; 20 U.S.C. § 1412[a][10][C][ii] and 34 C.F.R. § 300.148)

The New York State Legislature amended the Education Law to place the burden of production and persuasion upon the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of production and persuasion regarding the appropriateness of such placement. (See Educ. Law § 4404[1][c], as amended by Ch. 583 of the Laws of 2007) The amended law took effect for impartial hearings commenced on or after October 14, 2007; therefore, it applies to the instant case. (See SRO No. 08-016)

A private school placement must be "proper under the Act." (See Carter, 510 U.S. at 12, 15 and Burlington, 471 U.S. at 370), 1.e., the private school offered an educational program which met the student's special education needs. (See Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129 and Matrejek, 471 F. Supp. 2d at 419) A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement. (See Carter, 510 U.S. at 14) The private school need not employ certified special education teachers or have its own IEP for the student. (See Carter, 510 U.S. 7; SRO No. 08-085; 08-025; 08-016; 07-097; 07-038; 02-

014 and 01-105) Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate." (See Gagliardo, 489 F.3d at 112 and MLS. v. Bd. of Educ., 231 F.3d 96, 104 [2d Cir. 2000]) "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s|]chool [district's placement is appropriate should be considered in determining the appropriateness of the parents' placement...."" (See Gagliardo, 489 F.3d at 112; Frank G. v. Bd. of Educ., 459 F.3d at 364 [2d Cir. 2006] [quoting Rowley, 458 U.S. at 207 and identifying exceptions]) Parents need not show that the placement provides every special service necessary to maximize the student's potential. (See Frank G., 459 F.3d at 364-65) When determining whether the parents' unilateral placement is appropriate, "[uJltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits." (See Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]]) A "private placement is only appropriate if it provides ‘education instruction specifically designed to meet the unique needs of a handicapped child." (See Gagliardo, 489 F.3d at 115 [emphasis in original], citing Frank G., 459 F.3d at 365 quoting Rowley, 458 U.S. at 188-89)

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.

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; see Frank G., 459 F.3d at 364-65).

The IDEA allows that tuition reimbursement may be reduced or denied if parents do not provide “notice” of the unilateral placement either at the most recent CSE meeting prior to removing the child from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense." (See 20 U.S.C. § 1412[a][10][C][iii][1] and 34 C.F.R. § 300.148[d][1]) This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools." (See Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]) Although a reduction in reimbursement is discretionary, courts have upheld the denial of tuition reimbursement in cases where it was shown that parents failed to comply with this statutory provision. (See Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); SRO No. 07-133; 07-120; 07-115; 07-098; 07-079; 07-075; 07-038; 07-032; 06-122; 06-069; 06-057; 06-042; 06-041; 06-035; 05-092 and 04-022)

The final criterion for a reimbursement award is that the parent's claim be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA. (See Burlington, 471 U.S. at 374; M.C. v. Voluntown, 226 F.3d 60, 68 [2d Cir. 2000] and Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required"]) Such considerations "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties’ positions, and like matters." (See Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff'd, 471 U.S. 359 [1985]) With respect to equitable considerations, the IDEA provides that tuition reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, fail to engage with potential placements offered by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. (See 20 U.S.C. § 1412[a][10][C][iii]; Thies v. New York City Bd. of Educ., 2008 WL 344728 [S.D.N.Y. Feb. 4, 2008]; M.V. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181 at *5 [N.D.N.Y. Jan. 2, 2008]; Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 [S.D.N.Y. Nov. 20, 2007]; Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 [S.D.N.Y. 2005], aff'd, 2006 WL 2335140 [2d Cir. Aug. 9, 2006] and Voluntown, 226 F.3d at n.9)

In the absence of evidence demonstrating that petitioners failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, or failed to give proper notice, equitable considerations generally support a claim of tuition reimbursement. (SRO No. 04-049)

The student’s IEP dated June 11, 2015, classified her as having “autism.” (D-5) The student had been previously diagnosed with “ ” in December of 2014. (P-T) The psychologist testifying on behalf of the Parent said that “ ” is a “gateway disorder” according to other experts, that if untreated or undertreated is a gateway or prodrome to other comorbid anxiety disorders and mood disorder and an elevated risk for substance use and abuse. (T-536) Treatment of “ ” requires an assessment, collection of behavioral data using the “ questionnaire” and facilitation of the child’s talking with peers and adults at school. (T-508 & 522)

The student’s special education teacher testified on behalf of the DOE and conceded that prior to working with the student, she did not have any experience working with students with . (T-295) However, a woman from talked to the school and gave them a background on , aS Well as some strategies to use. (T-295-6) The school also assigned a one-on-one paraprofessional to work with the student, but the Parent testified that it did not help beyond getting the student to “whisper.” (T-734-5) The DOE special education teacher conceded that the student’s failure to speak impeded her social interactions, but not her learning. (T-345) The CSE reconvened in November of 2015, and the resulting IEP confirmed that student’s delay in in math skills. (D-8) The special education teacher testified that strategies she was given did not really work with the student. (T-297) A Neuropsychological Evaluation conducted in August of 2016, confirmed that the student did not have Autism. (D-21)

The DOE is tasked with identifying, evaluating, and appropriately serving children with disabilities as well as tracking their educational outcomes. (See generally, Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400-1485 (2012); Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (2012); No Child Left Behind Act of 2001, Pub. L. No. 107-110, 115 Stat. 1425 (2002) (codified as amended in scattered sections of the U.S. Code) [repealed 2015])

Once a school district becomes aware of a potential disability, they are obligated to perform a timely and accurate assessment to determine whether the child is a “child with a disability” within the meaning of the IDEA. The IDEA defines several categories of disability. A child must qualify under one of the defined categories in order to be eligible for services under the IDEA. Importantly, a child may have a disability as diagnosed by a medical professional but may not meet the definition of a “child with a disability” for purposes of the IDEA. This child may still receive protections under other disability statutes. (See generally 20 U.S.C. § 1401(3)(A)-(B) [2012])

Mislabeling a child with the wrong disability, although worrisome, is at least theoretically redressable through the IDEA, as the law is not overly concerned with accuracy of the disability label, but instead is designed to ensure appropriate supports and services. (See 20 U.S.C. § 1412(a)(3)(B) [2012]) However, a cornerstone of the IDEA is the provision of appropriate services designed to meet individual educational needs irrespective of disability category. (Id. - emphasis added) Additionally, if incorrect services are in place, a mislabeled child has access to the procedural protections in the IDEA and can challenge the adequacy of services through due process. (See 20 U.S.C. § 1415 [2012])

Here, the services the DOE employed to address the student’s “ ” were admittedly inappropriate. The DOE misclassified the student as having “autism” and attempted to give her special education teacher “some” strategies to address her . The minimal effort left the student unable to interact socially with her peers and adults. The special education teacher simply did not have the qualifications, whom the psychologist credibly testified should have training and experience in learning theory, in child development, in child psychopathology, and in cognitive behavioral therapy specific to young children and to persons with anxiety disorders. (T-518) Compounding this, was the DOE’s misclassification of the student as “autistic”, which resulted in a denial of specified i services” for the student. These services could have been provided as the expert psychologist who testified for the Parent said that he has implemented a protocol in New York City Public Schools, sometimes funded by the parents and sometimes funded by the DOE. (T-538)

For the reasons stated above, I find that the student was denied a FAPE for the 2015-2016 school year.

For the 2016-2017 school year, the DOE agreed to provide training for teachers and staff, designated a social worker as a point person to be a liaison to the consultant, and agreed to ongoing consultation with the student’s therapist. (T-408) After receiving the Neuropsychological Evaluation (D-21), the DOE did change the student’s classification from “autism” to “speech or language impaired” on March 17, 2017, in recognition of her “ ” diagnosis. (D-23) However, the DOE did not implement the recommendations made to address the student’s The daily collection of data, central to addressing , was not maintained by the student’s school. (T-745-6) What’s more, at the beginning of the student’s 12-month 2016-2017 school year in July of 2016, the DOE was still relying on her IEP from November of 2015, that erroneously classified the student as “autistic.” For the reason stated above, this also amounts to a denial of FAPE for the 2016-2017 school year.

For the 2017-2018 school year, the DOE did not have its staff trained to address the student’s . The principal who testified for the DOE stated that the trainer was not allowed to return to the school because the DOE had not made payment for services rendered. (T-466 & 786) The Parent testified that the DOE did not offer or provide the student with any services for the 2017-2018 school year. (T-786) The Parent testified that the student did not speak at all in school during the 2017-2018 school year. (T-789) The Parent also testified that she wrote to the School Chancellor because the DOE could not provide services and received a response from the “District Office” and was told that the DOE did not provide therapy and that she would have to obtain those services privately. (T-773-6)

The school psychologist testifying for the Parent said that a comparison of the student’s cognitive performance and her academic performance, indicates that the student should be doing better in school. (T-638) The student’s “Psycho-Educational Report” dated May & June 2018, summarizes the student as follows:

[STUDENT NAME] is a -year-old seventh grader, who attends the

. [STUDENT NAME]'s

program consists of Integrated Co-Teaching with receives the related services of Occupational Therapy and Speech Language Therapy. She is eligible under the classification of Speech or Language Impairment.

As measured by the Wechsler Intelligence Scale for Children - Fifth Edition (WISC-V) [STUDENT NAME]'s overall FSIQ score fell in the Average range when compared to other children her age (FSIQ = 106). The language skills assessed appear to be one of [STUDENT NAME||'s strongest areas of functioning. She showed above average performance on the Verbal Comprehension Index (VCI = 113). Performance on verbal comprehension tasks was particularly strong compared to her performance on Fluid Reasoning (FRI = 1 00) and Processing Speed (PSI = 86) tasks. She worked easily with primarily visual information and the VSI demonstrates another area of strength relative to her overall ability (VSI = 111). When compared to her processing speed (PSI = 86) performance) visual spatial skills emerged as a particular strength. Although her working memory performance was variable, overall she showed somewhat weak performance on working memory tasks, which measure concentration and mental control. This was an area of weakness relative to her overall level of ability (WMI = 82). When compared to her fluid reasoning (FRI = 100) performance, working memory skills emerged as an area for further development. On the Nonverbal Index (NVI), a measure of general intellectual ability that minimizes expressive language demands, her performance was Average for her age (NVI = 95).

[STUDENT NAME] was administered the Woodcock-Johnson-IV (WJ-IV) to assess her academic functioning. [STUDENT NAME|]'s reading standard score is within the range, indicating [STUDENT NAME|'s ability to reading quickly and comprehend is on grade level. [STUDENT NAME] achieved at the 4.3 grade level on the Passage Comprehension subtest. She achieved at the 12.9 grade level on the Reading Fluency subtest. She scored on 5.4 grade level on the Spelling subtest. She was unable to spell words such as “electric, sword, and skiing.”

Broad Math includes mathematics reasoning and problem solving, number facility, and automaticity. [STUDENT NAME]'s overall mathematics standard score is within the average range. [STUDENT NAME|'s score on \® the Calculation subtest is equivalent to 5.2 grade level, at the 11 grade level on the Applied Problems subtest and at the 6.8 grade level on this Math Fluency subtest.

Decisions about eligibility and programming should be made by the IEP team at [STUDENT NAME|'s Educational Planning Conference. (P-XXX)

The above Psycho-Educational Report evidences the student’s delays in the 2017-2018 school year. The Parent credibly testified that the student received a “promotion in doubt” letter for the 2017-2018 school year. (T-799) Although she received a “P-4” letter for the student’s summer SETSS’s service, she was unable to find a provider on the DOE “provider list.” (Id.)

The DOE’s failure in this case to first accurately classify the student and second to provide adequate services to address the student “ ” disability evidence a failure by the agency to provide the student with a FAPE for the years in question. (Supra) Indeed, by its own witness’ admission, the DOE’s special education teacher did not have any experience working with students with . (T-295) She conceded that the student’s failure to speak impeded her social interactions, and that strategies she was given to work with the student did not really work. (T-297 & 345) A Neuropsychological Evaluation conducted in August of 2016, confirmed that the student did not have Autism and the DOE received notice of this diagnosis. (D-21) For the 2017-2018 school year, there was no training of the DOE to address the student’s and the student did not receive any services to address the same. (T-466 & 786) This accounts for the student’s delays as noted above. (P-XXX)

For all the reasons stated above, I find that the student has been denied a FAPE for the 2015-2016, 2016-2017 & 2017-2018 school years. I next turn to the question of whether the private school placement and services sought by the Parent are appropriate for the student. Here, the Parent need only demonstrate that the placement and services sought provide educational instruction specially designed to meet the unique needs of the student and are necessary to permit her to benefit from instruction. (Gagliardo & Frank G., Supra)

For one, the private school sought is a “state approved” therapeutic school. (T-790) Secondly, the school only has approximately (30) students and offers both family and individual therapy. (T-793) Most of the students at the school suffer from “anxiety” and they will allow anyone who the Parent brings in to work with the student’s at the school. (T-794)

There is nothing in the record that sustains a finding that the Parent has not cooperated with the CSE. Therefore, I find that equitable considerations do not bar an award on behalf of the Parent.

NOW therefore, it is hereby

ORDERED that upon reasonably satisfactory proof of services having been rendered, the DOE shall reimburse the Parent and/or directly pay the cost of the student’s tuition at the private school for the 2018-2019 school year; and it is further

ORDERED that upon reasonably satisfactory proof of services having been rendered, the DOE shall reimburse the Parent and/or directly pay the cost of the student’s receipt of OT and SLT services, as well as enhanced rate P-4 for her SETSS services at an enhanced rate, in the equal amount of hours that the student did not receive those services as mandated for her during the 2015-2016, 2016-2017 and 2017-2018 school years; and it is further

ORDERED that upon reasonably satisfactory proof of services having been rendered, the DOE shall reimburse the Parent and/or directly pay the cost of the student’s receipt of (2) hours per day, for (5) days per week of multisensory tutoring for the remainder of the 2018-2019 school year, not to exceed $175 per hour; and it is further

ORDERED that upon reasonably satisfactory proof of services having been rendered, the DOE shall reimburse the Parent and/or directly pay the cost of the student’s receipt of a assessment and recommendations in an amount not to exceed $275 per hour, for as long as it reasonably takes to make such an assessment and recommendations to be implemented at the student’s private school for the remainder of the 2018-2019 school year; and it is further

ORDERED that shall forthwith conduct a Neuropsychological Evaluation and an Assistive technology evaluation of the student; and it is further

ORDERED that upon reasonably satisfactory proof of services having been rendered, the DOE shall reimburse the Parent for her out-of-pocket expenses incurred as follows: (a) $1,800 for the report and the Audiology Report; (b) reimbursement for the “ ‘“ services received through “ ” m 2016-2017 and 2017-2018, as well as and other therapies funded by the parent at her own expense, absent those reimbursements already paid by the DOE; and (c) reimbursement of $2,200 for the “ summer program; and it is further

ORDERED that the CSE shall forthwith reconvene to produce a new IEP for the student that considers all of the student’s available evaluations and any related services that she should receive for the 2019-2020 school year; and it is further

ORDERED that any other relief sought by the Parent and not addressed by this decision is either denied, determined not supported by the record, or is determined to be outside the scope of the IHO’s authority.

Dated: January 24, 2019

Cigar Le Leon, Eig. ge

EDGAR DE LEON, ESQ.

Impartial Hearing Officer

EDL:

PLEASE TAKE NOTICE

The parent and/or the New York City Department of Education has a right to obtain a review of this decision by a State Review Officer of the New York State Education Department under Part 200.5(k) of the Regulations of the Commissioner of Education, Section 4404 of the Education Law, and the Individuals with Disabilities Education Act. The Department of Education has designated the New York City Law Department to accept service of papers on its behalf, including appeals of decisions of Impartial Hearing Officers. Such service is made at 100 Church Street, New York, NY 10007 at the Messenger Center.

DOCUMENTATION ENTERED INTO RECORD

Number/Letter

Title Dated For #of Pages

01 DPC 06/30/17 DOE 21

02 Due Process Response 07/05/17 DOE 04

03-04 Withdrawn / Not Received N/A DOE N/A 05 IEP 06/11/15 DOE 19

06 PWN 01/19/16 DOE 04

07 PWN 11/24/15 DOE 04

08 IEP 11/12/15 DOE 18

09 Speech Report 11/2015 DOE 03

10 Withdrawn / Not Received N/A DOE N/A 11 Psychological Update 11/05/15 DOE 03

12 Advanced OT Report 06/03/15 DOE 07

13 Speech-Language Report 09/27/16 DOE 08

14 PWN 10/31/16 DOE 05

15 12-Month Consent 11/10/16 DOE 03

16 PWN 11/17/16 DOE 04

17 PWN 04/24/17 DOE 04

18 OT Goals 10/17/16 DOE 06

19 Speech Progress Report 10/22/16 DOE 03

20 Audiological Evaluation 10/18/16 DOE 07

21 Neuropsychological Eval. 08/08/16 DOE 11

22 IEP 11/17/16 DOE 21

23 IEP 03/17/17 DOE 28

24 FM System Letter 03/26/17 DOE 01

25 Letter from Psychiatrist 05/09/17 DOE 01

26 Psychiatric Evaluation 03/17/17 DOE 20

27 Vocational Interview 09/15/16 DOE 02

Teacher Report 02/2017 DOE 03

Student Profile 2015-2017 DOE 02

IEP 10/31/16 DOE 19

Closing Statement 10/11/18 DOE 10

DPC 01/02/18 PARENT 05

Progress Report 10/24/16 PARENT 02

Auditory & Speech Progress 06/27/14 PARENT 03

Withdrawn / Not Received N/A PARENT N/

IEP 11/12/15 PARENT 17

Withdrawn / Not Received N/A PARENT N/A Auditory Skills Test 2014+2015 PARENT 02

Subpoena 02/01/18 PARENT 07

O-S Withdrawn / Not Received N/A PARENT N/A T tz Recommendations 12/23/14 PARENT 01

U-W Withdrawn / Not Received N/A PARENT N/A xX Psychoeducational Eval. 01/07/14 PARENT 06

Y Psychoeducational Eval. 03/26/14 PARENT 01

Z Acknowledgement of Services 11/17/16 PARENT 01

AA Acknowledgement of Services 04/24/17 PARENT 01

BB-CC Withdrawn / Not Received N/A PARENT N/A DD Report Cards Various PARENT 04

EE-GGWithdrawn / Not Received N/A PARENT N/A HH Letter from

N/A PARENT N/A

JJ Letter from 04/14/17 PARENT 01

KK Letter from 05/05/17 PARENT 02

LL-NN Withdrawn / Not Received N/A PARENT N/A OO Summary & Recommendation 03/13/17 PARENT 03

PP-QQ Withdrawn / Not Received N/A PARENT N/A

RR PWN 01/29/15 PARENT 04

SS PWN 06/12/15 PARENT 04

TT Promotion in Doubt Letter 02/14/18 PARENT 01

UU-AAA Withdrawn / Not Received N/A PARENT N/A BBB Summer Progress 2015 PARENT 02

CCC Invoice & Proof of Payment Various PARENT 45

DDD-FFF Withdrawn / Not Received N/A PARENT N/A GGG Recommendation 03/09/14 PARENT 01

HHH Withdrawn / Not Received N/A PARENT N/A Ill Recommendations 01/13/16 PARENT 01

JJJ-MMM Withdrawn / Not Received N/A PARENT N/A NNN DOE Recommendation 04/25/17 PARENT 03

OO00-QQQ __ Withdrawn / Not Received N/A PARENT N/A RRR Report Card 2018 PARENT 02

SSS Report Card 02 PARENT 02

TTT Progress Report 11/27/17 PARENT 05

UUU Withdrawn / Not Received N/A PARENT N/A XXX Psych-Ed Draft 05/31/18 PARENT 13

YYY Withdrawn / Not Received N/A PARENT N/A ZZZ Acceptance Letter 04/13/18 PARENT 01

AAAA Withdrawn / Not Received N/A PARENT N/A BBBB Closing Statement 10/11/18 PARENT 30

N/A N/A N/A IHO N/A