New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT, DECISION AND ORDER

Case Number: 180898

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: November 14, 2019

Actual Record Closed Date: October 21, 2020

Hearing Officer: Jeffrey J. Schiro, Esq.

Hearing Officer’s Findings of Fact and Decision Pg. |

NAMES AND TITLES OF PERSONS WHO APPEARED

NOVEMBER 14, 2019

For the Student:

Esq., Attorney

For the Department of Education:

District Representative

Hearing Officer’s Findings of Fact and Decision Pg. 2

INTRODUCTION

On the above date, I held an impartial hearing pursuant to the Individuals with Disabilities in Education Act (hereinafter referred to as “IDEA”), 20 U.S.C. § 1415 (1), regarding the education program of a school-aged child, (“ —-”), for the 12-month school year 2018-2019. The hearing was conducted at the impartial hearing office of the New York City Department of Education, at 131 Livingston St., Brooklyn, NY. At hearing, the Department of Education (“DOE”) was represented by of the DOE, and the child’s Parent (“Parent”) was represented by , Esq. of the . The DOE offered Exhibits 1-3 and no witness testimony. The Parent offered Exhibits A-U and post-hearing Exhibit W, including the direct testimony by affidavit of three witnesses. The DOE declined to cross examine the Parent’s witnesses. A list of documents received into evidence are attached to this Decision and Order.

THE PARENT’S REQUEST

The Parent requests findings that the DOE deprived of a FAPE for the 2018-2019

12-month school year; that the DOE significantly impeded the Parent’s procedural and substantive rights under the IDEA; and that the DOE significantly impeded the Parent’s opportunity to meaningfully participate in the decision-making process.

The Parent seeks orders directing the DOE: e To fund ’s tuition at (also “ ” or “the School’) for the 12-month 2018-2019 school year; Hearing Officer’s Findings of Fact and Decision Pg. 3 e To fund an independent assistive technology evaluation with a provider of the Parent’s choosing at market rate; e To provide all recommended assistive technology at home and at school; e To fund compensatory after-school Special Education Teacher Support Services (“SETSS”) with a provider of the Parent’s choosing at market rate.

THE DOE’S POSITION

The DOE offered documentary exhibits 1-3, consisting of the IEP, CSE meeting minutes, and school location letter pertaining to the school year at issue, and presented no witnesses on its behalf. At the hearing on November 14, 2019 the DOE’s representative rested on the aforesaid documents (Tr. 17). The DOE’s representative declined to cross examine the Parent’s witnesses.

BACKGROUND AND PROCEDURAL HISTORY

is years old and is classified by the New York City Department of Education (DOE) as a student with an educational disability, specifically, “Other Health Impaired” (Ex. 1).

She is diagnosed with microcephaly, hypotonia, and mixed receptive and expressive language disorder (Exs. I-1, H-7, W 94). She exhibits delays in her cognitive, academic, language and communication, fine motor, and gross motor skills and a decreased sense of body, spatial, and safety awareness (Exs. G-I, N-P). She has auditory processing weaknesses which contribute to her academic delays and require specific interventions and assistive technology (Ex. K).

Additionally, she is easily distracted and unmotivated and needs frequent redirection to stay focused (Exs. G-I, N-P). Her high distractibility, short attention span, and low intrinsic Hearing Officer’s Findings of Fact and Decision Pg. 4 motivation contribute to her feeling overwhelmed with academic demands, which in turn results in refusal and other oppositional behaviors when it comes to completing her schoolwork (Exs.

W, P).

received Early Intervention services and attended a center-based special education preschool program via the Committee on Preschool Special Education (Ex. W, 45). She attended for kindergarten, or 2016-2017, first in an Integrated Co-Teaching class and then in a 12:1:1 class, with related services (Ex. W, 46). The Parent stated that did not make meaningful progress in either setting (Ex. W, 47).

For first grade, or 2017-2018, the Parent requested that the CSE consider placing in the 12-month, 12:2:2 program at School for Language and Communication Development (“ ”), now called , a New York State Education Department-approved nonpublic school for children with language-based and other educational disabilities (Ex. W, 98). The CSE instead recommended a 12:1+1 program at a DOE community school, also on a 12-month basis but without related services for the summer session (Ex. W, 99). The Parent placed at for school year 2017-2018, where she began attending in July 2017 (Ex. W, 410).

Over school year 2017-2018, underwent audiological testing which recommended further evaluation for a possible auditory processing disorder (Ex. J). The Parent provided the audiological report to the CSE and requested the auditory processing evaluation; however, the DOE conducted no further testing of before convening a CSE and developing S program for school year 2018-2019, the school year at issue (Ex. W, 912). Rather, the CSE met on March 23, 2018, and again recommended a 12:1:1 special class ina DOE community school for the 12-month school year 2018-2019 (Ex. W, 913; Ex. 1). The DOE conducted an auditory Hearing Officer’s Findings of Fact and Decision Pg. 5 processing evaluation on June 22, 2018, three months after the CSE met, but by that time it had already assigned to for the upcoming school year (Ex. W, 914; Ex. K).

The Parent contacted and learned that it could not implement the summer portion of *s 12-month JEP (Ex. W, 915). Furthermore, the CSE never reconvened to discuss the auditory processing evaluation report and recommendations (Ex. W, 916). The Parent sent to the DOE a 10-day notice of her intention to re-enroll at , how , for extended school year 2018-2019 and to seek District funding of the tuition and related expenses unless the DOE offered an appropriate program (Ex. B). She also sent, by separate letter, a request for various special transportation accommodations (Ex. E).

The DOE did not respond to the Parent’s 10-day notice until August 2018, at which time it advised her that it would not settle her claims stemming from her disagreement with its program and/or placement recommendations for (Ex. W, 419). therefore attended for extended school year 2018-2019, beginning July 2018 (Ex. W, 920; Ex. S). The CSE did not respond to the Parent’s requests for transportation accommodations until December 3, 2018, at which time it amended ’s IEP to provide for limited time on the bus but failed to address her requests for a small bus (limited number of students), climate control, and a bus attendant (Ex. W, 21).

On January 3, 2019, the Parent’s attorneys filed a due process complaint on her behalf (Ex. A). A hearing was held on November 14, 2019. The Parent was unable to attend (Tr. 14).

The DOE offered documentary exhibits 1-3 consisting of the IEP, CSE meeting minutes, and school location letter pertaining to the school year at issue and presented no witnesses on its behalf (Tr. 6, 17). The Parent offered exhibits A-U, including the direct testimony by affidavit of Hearing Officer’s Findings of Fact and Decision Pg. 6

Ms., an administrator at, and Ms. ; ’s teacher at (Exs. U and V, respectively) (Tr. 9-14). Exhibits A-C, E-L, N-T, and V were admitted, while Exhibits D and M were withdrawn to avoid duplication of the DOE’s exhibits, and U was marked for identification only (Tr. 9, 11, 14). The parties’ representatives stipulated to corrections of minor typos contained in Exhibits P and V (Tr. 7-8). The Parties agreed further that the Parent would provide her direct testimony by affidavit prior to the next scheduled hearing date of December 16, 2019, which date would be reserved for cross examination of the Parent, only, should the DOE so desire (Tr. 14, 15, 17). The parties requested and received the necessary compliance deadline extensions (Tr. 16).

Post hearing, the Parent submitted an affidavit in lieu of direct testimony, admitted as Exhibit W. Exhibit U (previously marked for identification) was also admitted. The DOE declined to cross examine the Parent, and the parties cancelled the hearing date of December 16, 2019.

ANALYSIS

A. Legal Standards and Burden of Proof

This hearing was requested pursuant to the Individuals with Disabilities Education Improvement Act of 2004, 20 U.S.C. $1404 et. seq. (“IDEA”), and related federal and state statutes. “Congress enacted the IDEA ‘to ensure that all children with disabilities have available to them a free appropriate public education [“FAPE”] ... designed to meet their unique needs ...

[and] to ensure that the rights of children with disabilities and parents of such children are protected.” MH. v. N.Y.C. Dep’t of Educ., 685 F.3d 217, 223 (2d. Cir. 2012) (quoting 20 U.S.C. Hearing Officer’s Findings of Fact and Decision Pg. 7

§ 1400(d)(1)(A)-(B)). A FAPE includes both “special education” and “related services.” 20 U.S.C. §1401(9). “Special education” is “specially designed instruction . . . to meet the unique needs of a child with a disability.” 20 U.S.C. §1401(29). “[R]elated services” are the support services “required to assist a child . . . to benefit from” that instruction. 20 U.S.C. §1401(26).

To meet the IDEA's requirements, a school district must administer such uniquely tailored “special education and related services” according to an individualized education program (“IEP”) which school districts must implement each year for each student with a disability. MH. v. N.Y.C. Dep’t of Educ., 685 F. 3d 217 (2TM Cir. 2012). The IEP is one of the cornerstones of special education and sets forth the child's present educational performance, establishes annual and short-term objectives for improvements in that performance, and describes the specially designed instruction and services that will enable the child to meet those objectives. Jd. (quoting D.D. ex rel. V.D. v. N.Y.C. Bd. of Educ., 465 F.3d 503, 507-08 (2d Cir.2006). It is long held that the IEP is only considered substantively adequate when it is likely to produce progress, not regression, and provides the student with an opportunity greater than mere trivial advancement. /d. (quoting T.P. ex rel. S.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 254 (2d Cir. 2009). The United States Supreme Court recently clarified the standard for evaluating the adequacy of an IEP: “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.” Endrew F. v. Douglas Cty. Sch. Dist. RE-1, _US._, 137S.Ct. 988, 999 (2017).

Procedural violations can also amount to a deprivation of FAPE if they (a) impeded the student’s right to a FAPE, (b) significantly impeded the parents’ opportunity to participate in the Hearing Officer’s Findings of Fact and Decision Pg. 8 decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits. 20 U.S.C. § 1415(f)(3)(E)qi); 34 C.F.R. § 300.513(a)(2); 8 NYCRR 200.5(j)(4)(Gi); E.H. v. Bd. Of Educ., 2008 WL 3930028, at *7 (N.D.N.Y. Aug. 21, 2008); 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. 20 U.S.C. § 1415(f)(3)(E)G). Where deprivation of FAPE is found, the IDEA allows a hearing officer to fashion a remedy that he finds appropriate under the circumstances, including but not limited to ordering a local educational agency (“LEA”) to comply with procedural safeguards; ordering the LEA to provide a specific placement, program, or service; and awarding compensatory education and additional services tailored to meet the unique circumstances of the case. 20 U.S.C. § 1415(f)(3)(E)(i1); 20 U.S.C. §§ 1401(3), 1412(a)(1)(B); N.Y. Educ. Law §§ 3202(1), 4401(1), 4402(5); see also P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir.

2008); Wenger v. Canastota, 979 F. Supp. 147 (N.D.N.Y. 1997); Sch. Comm. of Town of Burlington, Mass. v. Dep't of Educ. of Mass., 471 U.S. 359, 373-74 (1985); Florence Cty. Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); A.D. v. Bd. of Educ. of City Sch. Dist. of New York, 690 F. Supp. 2d 193, 198 (S.D.N.Y. 2010); 20 U.S.C. § 1412(a)(10)(C).

The IDEA further contemplates awards of private tuition payment where parents of students covered under the [DEA have unilaterally placed the student privately in response to the DOE’s failure to provide the student with a FAPE. “In Burlington the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a Hearing Officer’s Findings of Fact and Decision Pg. 9 proper case under the IDEA, in that ‘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.” SRO No. 12-135, quoting Burlington, 471 U.S. at 370-71, and citing 20 U.S.C. § 1412(a)(10)(C)(a1); 34 CFR 300.148.

Under the Burlington-Carter three-part assessment, parents are entitled to reimbursement of private placement if: (1) the DOE failed to offer the student a FAPE; (2) the private schooling obtained by the parents is appropriate to the child's needs; and (3) equitable considerations support the plaintiffs' claim. Forest Grove v. T.A., 557 U.S. 230 (2009); Florence Cty. Sch. Dist.

Four v. Carter, 510 U.S. 7 (1993); Sch. Cte. of Burlington v. Dep’t of Educ., 471 U.S. 359 (1985); Frank G. v. Bd. of Educ., 459 F.3d 356 (2d Cir. 2006); 20 U.S.C. § 1412(a)(10)(C).

More recently, courts have held that the broad spectrum of equitable relief contemplated under the IDEA encompasses all forms of private tuition payment remedies, including reimbursement, prospective payment, retrospective payment, or any direct payment scheme whereby the DOF.

would make the student’s tuition payments in the place of the parent. E.M. v. NYC Dept. of Educ., 758 F.3d 422, 453 (2TM Cir. 2014).

The DOE bears the burdens of production and persuasion for all matters at issue at the hearing other than the appropriateness of the parental placement, for which the burden of proof lies with the parents. Educ. Law § 4404(1)(c); See M-P.G. v. N.Y.C. Dep’t of Educ., 2010 WL 3398256 at *7 (S.D.N.Y. Aug. 27, 2010). Hearing Officer’s Findings of Fact and Decision Pg. 10

B. Findings of Fact and Decision

a. The DOE Failed to Provide a FAPE

The Parent’s complaint alleges serious procedural and substantive failures which allegedly deprived of a FAPE and impeded the Parent’s rights under the IDEA (Ex. A). The DOE declined to offer witnesses in support of its case, instead resting on its documentary evidence (Tr. 17). The DOE furthermore declined to call the Parent’s witnesses for cross examination (Tr. 17-18; IHO Ex. I).

The SRO has found that allegations that are left unchallenged are deemed as true “unless found to be inconsistent with the evidence in the record.” Application of a Student with a Disability, 01-044 (SRO March 27, 2002). The DOE’s silence at hearing has the effect of conceding every point alleged by the parent against the DOE unless it is inconsistent with the hearing record. Jd. In the present case, I find that the documentary exhibits offered by the DOE, without more, tend to support rather than refute the Parent’s claims and allegations. I do not find inconsistencies in the record with any of the Parent’s allegations with respect to the DOE’s failure to provide a FAPE. When given the opportunity at hearing to challenge the Parent’s allegations, the DOE opted not to cross examine the Parent’s witnesses. I therefore find that the DOE failed to meet its burden and effectively conceded the Parent’s claims and allegations including but not limited to her claim that the DOE denied a FAPE to for the 12-month school year 2018-2019. Accordingly, I find that the DOE failed to offer and/or provide a FAPE to for the 12-month school year 2018-2019. Hearing Officer’s Findings of Fact and Decision Pg. 11 b. is Appropriate for In order for a private placement to be “proper under the Act” (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), it must provide education and instruction specially designed to meet the unique needs of a student. 20 U.S.C. § 1401(29); 34 CFR 300.39(a)(1); Educ. Law § 4401(1); 8 NYCRR 200.1(ww); Bd. Of Educ. v. Rowley, 458 U.S. 176, 188-189 (1982); Gagliardo v. Arlington Cent. Sch. Dist., 489 F. 3d 105, 114 (2d Cir. 2007); Frank G. v. Bd. Of Educ., 459 F. 3d 356, 365 (2d Cir. 2006); Walczak v. Florida Union Free Sch. Dist., 142 F. 3d 119, 129 (2d Cir. 1998); Stevens v. New York City Dep't of Educ., 2010 WL 1005165, *9 (S.D.N.Y. Mar. 18, 2010).

"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." Gagliardo, 489 F.3d at 112 (quoting Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d Cir. 2006]); see also Rowley, 458 U.S. at 207.

Parents need not show that the placement provides every special service necessary to maximize the student's potential. Frank G., 459 F.3d at 364-65. When determining whether the parents' unilateral placement is appropriate, “[u]ltimately, the issue turns on ‘whether that placement is "reasonably calculated to enable the child to receive educational benefits."’” Frank G., 459 F.3d at 364; Gagliardo, 489 F.3d at 115.

The Parent presented evidence as to *s needs. An “Annual Review Classroom Report” pertaining to school year 2018-2019 states: “[ _ |] requires a highly structured setting where teacher support and guidance, in conjunction with a positive reinforcement system, are provided” (Ex. P-1). “[ | responds well to a classroom management system (i.e. a token economy ... to help increase attending, listening, participation, on-task behaviors, task Hearing Officer’s Findings of Fact and Decision Pg. 12 completion, and following directions” (Ex. P-1). “She also benefits from positive reinforcement and verbal praise throughout the school day” (Ex. P-1). “[ _] learns best in a small group setting reflective of consistent teacher facilitation” (Ex. P-1). “Instructional modifications such as simplified language, teacher scaffolding, and visual cues aid in her ability to retain and acquire new academic information” (Ex. P-1).

With respect to ’s specific academic functioning, the report provides that she demonstrates difficulty applying grade-level phonics and word analysis skills to decode and to read with fluency and expression (Ex. P-2). She “has difficulty performing higher level reading skills such as identifying the main idea, making inferences, and drawing conclusions” (Ex. P-2).

She demonstrates the ability to form letters correctly but needs prompting to use correct sizing (Ex. P-2). Her writing “often contains skipped letters and incorrect capitalization, punctuation, and grammar” (Ex. P-2). In the area of math, can rote count and write numbers up to 10 (Ex. P-3). She needs maximal verbal prompting to add single digit numbers (Ex. P-3). “She demonstrates difficulty understanding mathematical concepts (i.e., subtracting single-digit numbers, adding two-digit numbers, identifying odd and even numbers, problem solving) and recalling math facts) (Ex. P-3). Overall, her scores on the Woodcock Johnson IV Tests of Achievement, administered in approximately December 2018 according to the report, placed her academic functioning in the range of very low average to average, with percentile rankings ranging from | to 35 (Ex. P at 1-3).

In addition to the foregoing, displays social skills deficits manifesting as low selfconfidence, motivation, and resilience and delayed peer interaction skills (Ex. P-3). She has speech language needs related to her delayed phonemic awareness and mixed receptive and Hearing Officer’s Findings of Fact and Decision Pg. 13 expressive language disorder (Exs. H-7, O-2), occupational therapy needs related to decreased hand strength and eye-hand coordination (Ex. O at 3-4), physical therapy needs related to balance, strength, and motor planning and coordination (Ex. O at 2-3), and classroom modification and assistive technology needs stemming from her auditory processing weaknesses (Ex. K at 6-8).

The foregoing statements of ’s needs are consistent with notations contained in the DOE’s 3/23/18 meeting minutes (Ex. 2) and the March 2018 IEP (Ex. 1). They are furthermore consistent with and reflective of statements provided in Parent Exhibits N and O, as well as in the affidavits in lieu of direct testimony of Ms. ; ’s teacher over school year

2018-2019, and Ms. , an administrator at ’s preschool/elementary school at the time attended (Exs. U and V). The DOE presented no evidence and elicited no statements in contradiction of the foregoing.

As to the appropriateness of to address ’s needs, Ms. testified by affidavit that is a private special education school that is also on the list of New York State-approved nonpublic schools (Ex. V, 98). It is approved to service students with Speech and/or Language Impairment, Autism, Learning Disability, Other Health Impairment, Intellectual Disability, Emotional Disturbance, Hearing Impairment, and Traumatic Brain Injury (Ex. V, 912). It provides specialized and modified curricula and offers speech and language therapy, occupational therapy, physical therapy, auditory training, and counseling services (Ex.

V, 99 13, 18-19). serves students in preschool through

5‘" srade and has a population of 165 school age students and 78 preschool students (Ex. V, 99). Hearing Officer’s Findings of Fact and Decision Pg. 14

Classroom teachers at are certified in Students with Disabilities and must be certified in the level they teach, either Students with Disabilities Birth-2, and/or 1-6 (Ex. V, 914).

Teacher assistants hold NYS Teacher Assistant Certification, and all therapy/service providers require a license and/or New York State certification through the State Education Department (Ex. V, J 15-16).

provides a language-based program and transdisciplinary approach to learning according to the view that the development of language is the bridge to the development of academics (Ex. V, 418). Each aspect of the program and its curriculum is modified by the teachers and the speech and language pathologists according to each student’s developmental language needs (Ex. V, 918). Students are exposed to grade-level curriculum in all subject areas (Ex. V, 418). ’s curriculum and instructional programs are aligned with New York State Learning Standards (Ex. V, 18). The Preschool/Elementary School provides a highly intensive reading program, consisting of Wonders and WonderWorks, the Reading A-Z program, the Wilson Reading System, and Wilson Fundations (Ex. V, 919). The building has a reading specialist that provides instructional support for all teachers and develops an intervention plan for struggling readers (Ex. V, 919). Instruction also focuses on socialization, not only during designated periods but throughout the school day, reinforcing skills related to greeting, verbal turn-taking, interacting with peers and adults, and self-esteem (Ex. V, 421-1).

provides assistive technology, including iPads with the newest languagebased applications, for example, Earobics and HearBuilder, programs that focus on improving phonological awareness, auditory processing, and reading skills (Ex. V, 921-g). also offers Fast ForWord, a form of assistive technology that slows down the rate of speech to Hearing Officer’s Findings of Fact and Decision Pg. 15 improve students’ cognitive development and help them to understand and process information, follow directions, sequence, and discriminate between phonemes (Ex. V, §21-f). As the student progresses, it gradually speeds up the rate of speech, with the goal that the rate be natural (Ex. V, q21-f).

All classrooms at are self-contained and follow a 12:2:2 ratio with two certified special education teachers and two certified teacher’s assistants in each room (Ex. V, 420). All instructional periods include small group instruction (Ex. V, 921-d). Instructional concepts are taught in a whole group setting first, as a “mini lesson,” and then students are broken up into smaller groups for practice (Ex. V, §21-d). Small group instruction can include 2-

4 instructional groups created based on students’ needs, including learning styles, cognitive levels of functioning and/or necessary modifications (1.e., additional visual aids, verbal cues, enlarged text) (Ex. V, §21-d).

Ms. and Ms. both stated that for school year 2018-2019, was placed in a 12:2:2 self-contained classroom setting (Ex. V, 426, Ex. U, 98). Ms. provided further that the class had 12 students between the ages of 7 and 8 who have speech delays, led by two teachers and two teacher assistants (Ex. U, 98). Over school year 2018-2019, received the above-described language-based, transdisciplinary education program, as well as speech and language therapy three times per week individually and one time per week in a group of three (Ex. V, 927, Ex. U913, Ex. O, Ex. P). In addition, she received occupational therapy two times per week individually and physical therapy two times per week individually (Ex. V, 927, Ex. U913). Last, received Fast ForWord services five times per week to improve her ability to develop temporal integration skills and phonological skills, leading to Hearing Officer’s Findings of Fact and Decision Pg. 16 greater acquisition of reading skills (Ex. U, 913). All therapy sessions were thirty minutes in duration (Ex. V, 927, Ex. U, 413).

Ms. stated that tracks students’ progress via various assessment tools and structured observations of targeted behavior (Ex. U, 419). Progress reports are completed five times throughout the school year (Ex. U, 921). Over school year 2018-2019, made steady, gradual to satisfactory progress toward achieving her goals, and achieved several of them (Ex. U, Jf] 20-21; Exs. N, O). The Parent stated that she received ’s progress reports admitted as Exhibits N, O, and P, and that she had witnessed similar progress at home (Ex. W, 9

25-26). All witnesses stated that provided with an appropriate program and services over the 12-month school year 2018-2019 (Exs. U, V, and W).

The DOE did not offer evidence or elicit testimony in contradiction of the Parent’s evidence described above. I find that the Parent’s above-related testimony was credible. I find that Ms. and Ms. were duly qualified to provide the testimony related above, and their testimony was credible. I find that the evidence, including the witness affidavits in lieu of direct testimony, establish that over school year 2018-2019 provided a program and services to that were directly related to her needs and in which she was able to make meaningful progress. I therefore find that was appropriate for over school year

2018-2019.

c. The Equities Favor the Parent

Parents who do not obstruct their school district’s placement process will not be precluded from receiving reimbursement for equitable reasons. See, C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 840 (2d Cir. 2014); R.B. v. N.Y.C. Dep’t of Educ., 713 F.Supp.2d Hearing Officer’s Findings of Fact and Decision Pg. 17

235, 248-249 (S.D.N.Y. 2010); see also A.R. v. N.Y.C. Dep’t of Educ., 2013 WL 5312537, at *10 (S.D.N.Y. Sept. 23, 2013). Where the parents “cooperate with the District in its efforts to meet its obligations under the IDEA . . . their pursuit of private placement [is] not a basis for denying their tuition reimbursement .. .” C.L., 744 F. 3d at 840. Further, a finding or concession of FAPE deprivation necessarily tips the equity of private tuition reimbursement by the DOE in the Parents’ favor. N.R. v. N.Y.C. Dep’t of Educ., 2009 WL 874061 p.*7 (March 31, 2009).

As stated above, I find that the DOE effectively conceded that it failed to offer a FAPE to during the 2018-2019 school year, by declining to meet its burden of proof at hearing, and that furthermore the evidence in record substantively supports the Parent’s allegations. I find further that the DOE also failed to present a case or argument with regard to the parties’ relative equities. Finally, I find no evidence in the record to suggest the Parent obstructed the DOE or acted in bad faith, in any regard, at any time. On the contrary, the Parent attended and participated in the CSE at issue, visited the DOE’s proposed school placement, and timely notified the DOE of her concerns and of her intention to reenroll at in the event that it was unable to offer a FAPE (Exs. W, B, A).

As a consequence of the DOE’s failures to provide a FAPE to for the 12-month school year 2018-2019, the Parent incurred a substantial debt to in the amount of $65,155.00 (Exs. W, R, S). The Parent provided her 2018 Form 1040, indicating an adjusted gross income of $ ; she therefore requested an order directing the DOE to pay the $65,155.00 to directly (Ex. A-8). Hearing Officer’s Findings of Fact and Decision Pg. 18

For all of the foregoing reasons I find that the equities weigh in favor of the Parent in this matter, and she is entitled to an order requiring the DOE to pay the cost of —_’s 2018-2019 12-month tuition to directly.

ORDER

In light of all of the foregoing findings and conclusions, including but not limited to my findings that the DOE failed to provide with a FAPE for the 12-month school year 2018-2019, I order the DOE to: 1) Pay directly to the amount of $65,155.00 representing the tuition for ’s attendance from July 2018 to June 2019; 2) Fund an independent assistive technology evaluation with a provider of the Parent’s choosing at market rate; 3) Provide or fund the provision of all recommended assistive technology at home and at school.

Dated: November 4, 2020

/s/ Jeffrey J. Schiro

Jeffrey Schiro, Esq.

Impartial Hearing Officer

Hearing Officer’s Findings of Fact and Decision Pg. 19

PLEASE TAKE NOTICE

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 the 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 the 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. Hearing Officer’s Findings of Fact and Decision Pg. 20

DOCUMENTATION ENTERED INTO THE HEARING RECORD

PARENTS

Due Process Complaint Notice/Impartial Hearing Request, 1/3/19, 11 pgs.

CHYRFPEOVOZMATMSEAMUOWS

Ten Day Notice, 6/22/18, 3 pgs.

Settlement Determination Letter, 8/2/18, 1 pg. [Reserved]

Request for Transportation Accommodations, 6/28/18, | pg.

Parent Consent to Evaluations, 10/16/18, 1 pg.

Psychoeducational Evaluation, 9/23/16, 6 pgs.

Speech/Language Evaluation, 3/6/17, 8 pgs.

Psychoeducational Evaluation, 5/17/17, 4 pgs.

Audiological Evaluation, 10/9/17, 4 pgs.

Auditory Processing Evaluation, 6/22/18, 8 pgs.

Individualized Education Program (IEP), 6/7/17, 15 pgs. [Reserved]

Progress Reports, 2018/19, 10 pgs.

Teacher Comments (2018/19), 4/18/19, 4 pgs.

Annual Report (2018/19), 5/22/19, 4 pgs.

Tuition Contract (2018/19), 8/2/18, 2 pgs.

2018/19 SA Rate, 1/25/19, 1 pg.

Tuition Contract (Summer 2018), 6/4/18, 3 pgs.

Form 1040 — U.S. Individual Income Tax Return, 2018, 2 pgs.

Affidavit — , 11/13/19, 7 pgs.

Affidavit — , 11/13/19, 5 pgs.

Affidavit — Parent, 12/10/19, 4 pgs.

DISTRICT

1. Individualized Education Program (IEP), 3/23/18, 17 pgs.

2. Meeting Minutes, 3/23/18, 3 pgs.

3. School Location Letter, 4/13/18, 2 pgs.

IMPARTIAL HEARING OFFICER

None