New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACTS & DECISION

Case Number: 182632

NYS Identifier Number

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Dates(s) of Hearing: 05/12/20

Actual Record Close Date: 10/12/20

Hearing Officer: Edgar De Leon

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date DOE Representative DOE 05/12/20 (T)

School Psychologist DOE 05/12/20 (T) Attorney PARENT 05/12/20 (T)

Mother PARENT 05/12/20 (T)

Principal PARENT 05/12/20 (T)

DOCUMENTATION ENTERED INTO RECORD

Number/Letter Title Dated For # of Pages

01 Closing Statement 06/24/20 DOE 03

PARENT’S EXHIBITS

P-A April 22, 2019 Demand for Due Process 07 Pages

P-B April 9, 2018 Individualized Education Program (IEP) 17 Pages

New York City Department of Education

P-C January 24, 2018 Preschool Quarterly Progress Report 03 Pages

Occupational Therapy (O.T.)

By: , OTR/L

P-D February 12, 2018 Preschool Quarterly Progress Report 01 Page

Speech

By: , M.S., CCC-SLP

P-E February 12, 2018 Preschool Quarterly Progress Report 01 Page

Counseling

By: , LCSW

P-F February 15, 2018 Preschool Quarterly Progress Report 01 Page

Physical Therapy (P.T.)

By: , PT, DPT

P-G March 2018 Preschool Quarterly Progress Report 02 Pages

Education

By: , M.S.Ed.

P-H August 2, 2018 Letter from Parent to CSE 05 Pages

(with fax confirmations)

P-I 2018-2019 Student’s Daily Schedule 01 Page

P-J Winter 2019 Student Progress Report 08 Pages

P-K Spring 2019 Student Progress Report 09 Pages

P-L July 2, 2019 Attendance Record 01 Page

2018-2019 School Year

By: ,

P-M October 24, 2019 Affidavit of Payment 01 Page

2018-2019 School Year

P-N August 19, 2018 2018-2019 Tuition Contract 01 Page

P-O 2018-2019 Proofs of Payment to 02 Pages

P-P 2016 US Individual Tax Return 02 Pages

P-Q 06/09/20 Closing Statement 19 Pages

***Parent’s exhibits “M” and “P” were not formally received in evidence.***

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

On April 25, 2019, 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 and Parts 200 and 201 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 a year old student attending a private school and the New York City Department of Education (“DOE”) - , concerning the student’s special education program. After adjournments were granted at the request of and with the consent of the parties, or for good cause, the impartial hearing was held on May 12, 2020. The parties opted to submit written closing statements. The Parent’s written closing statement was received on June 9, 2020. (P-Q) The DOE did not submit a written closing statement. 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 student was denied a “free and appropriate public education” (“FAPE”) for the 2018-2019 school year. At the impartial hearing, the Parent seeks the following relief:

(a) An order that the DOE reimburse the Parents and/or directly pay for the tuition, costs, and expenses of the students special education program for the 2018- 2019 school year, including placement at the private school (with all supports and services); and

(b) An order directing the DOE to pay for the student’ special education transportation.

THE DOE’S CASE

The DOE called (1) witness to testify on its behalf and did not submit any documents into evidence. In sum, substance and relevant part, the testimony and lack of documentary on behalf of the DOE is incorporated in the decision below.

THE PARENT’S CASE

The Parent called (2) witnesses to testify live on her behalf, (1) witness that testified on direct via affidavit pursuant to 8 NYCRR 200.5[j][3][xii][f], (P-M), and submitted (15) documents into evidence. The DOE did not object to any of the Parent’s documents being received in evidence. (T-16) In sum, substance and relevant part, the testimony and documentary on behalf of the Parent 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,

458 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 IEP 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][ii]; 34 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; E.H. 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][i], 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][iii]), 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 U.S. 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), i.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 M.S. 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 [d]istrict'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, "[u]ltimately, 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][I] 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 DOE called a school psychologist to testify on its behalf. (T-25-6) She testified that the student’s IEP meeting on April 9, 2018 were herself as the district representative, the special education teacher and the Parent. (T-29 & P-B) At the meeting, she reviewed a classroom observation, interviewed the teacher and “typically” use progress reports from the providers. (T-32) she observed the student at her school and “believes” that the student was in a class with (12) students. (T-33) She recalls the student having a hard time focusing and sustaining attention with the teacher's lesson and requiring a lot of prompts and redirection. (Id.) The student’s goals were developed from the progress reports that were provided and the student was given testing accommodations. (T-33-4)

They believed that the student needed a smaller class and recommended a 12:1:1 class.

(T-34)

On cross examination, the witness testified that she did not feel the student needed a psychoeducational evaluation and does not recall when the student last had such an evaluation. (T-37) An FBA was also not conducted. (T-37-8) Generally, her IEP meetings last (30) to (40) minutes. (T-38) She conceded that there was no general education teacher at the meeting. (T-40) There was no re-direct examination of the witness. (T-41)

The Parent notes that the student’s IEP meeting did not have aa general education teacher present, a necessary member for a duly composed CSE team. (P-Q citing 8 N.Y.C.R.R. § 200.3(a)(1)[ii]) The Parent also notes that the DOE did not have proper evaluative material reviewed at the meeting, using only an observation, especially considering it was the student’s initial school-aged IEP. (P-Q citing 8 N.Y.C.R.R. §

200.4(b)[4]) The Parent also argues that the despite the student’ social and behavioral difficulties, the DOE did not conduct an FBA. (P-Q citing T-37-8 & P-B)

The private school principal testified that the auditory and visual stimuli related to the DOE’s recommended 12:1:1 special class in a community school would be too much to allow for the student to focus. (T-95-6) The Parent also cites to the record and argues that the recommended DOE placement was inappropriate for the student for the following reasons:

As noted in her letter to the NYCDOE, the classroom teacher at reported that the students were excelling in math (with skills at a first-grade level), could read words and sentences, wrote in full sentences, and expressed themselves. (Ex. H-1). In stark contrast, ’s IEP indicated math and reading skills at a pre-kindergarten level. (Ex. B-15; see also Ex. H-1). could not identify the letters of the alphabet, and her math skills were at the level of counting from 1-10 with prompting from a teacher. (Ex. B-1; see also Ex. H-1). Also, would not have been able to do the writing assignment issued for the class when visited. (Ex. H-2). (P-Q)

By contrast, the private school is a small, ungraded special education program, for students aged five through fourteen years old. (P-Q citing T-59-60, 62 & 106) At the private school, the student is in a small class size and benefitting from such supports as a visual schedule, prompting, hand-over-hand guidance and one-on-one instruction in a quiet and structured environment. (P-Q citing T-63) For the 2018-2019 school year, the student was in a small homeroom class of seven students, all aged five to seven years old. (Tr. 66).

Academically and socially, the students in the class had skills ranging from pre-kindergarten to first grade levels. (P-Q citing T-66) For academic instruction, the student worked in a group of two, due to her need for “a tremendous amount of individualized support.” (P-Q citing T-66-7) A Master’s level reading specialist was consulted for the student’s classroom and the private school psychologist joined the classroom at times. (P-Q citing T-65)

At the private school, the student also received related service therapies of speech therapy, social skills, occupational therapy, and music therapy, all provided by licensed providers. (P-Q citing T-81 & P-I) The school psychologist and the student’s teachers also developed an individualized behavior plan for the student. (P-Q citing T-90) The school administered the SANDI testing at the beginning of the 2018-2019 school year, to develop the student’s goals, and again at the end of the school year to modify the goals based on the student’s performance, which are indicated on the student’s progress reports. (P-Q citing T-85-6, 88, P-J & P-K)

In this case, the lack of a required CSE team member (General Education Teacher)

and the lack of evaluative materials render the resulting IEP deficient I find that the student was denied a FAPE for the 2018-2019 school year. (Supra) The Parent only needs to demonstrate that the private school provides educational instruction specially designed to meet the unique needs of the student, supported by such services as are necessary to permit him to benefit from instruction. (Gagliardo & Frank G., Supra) The record as cited above indicates that the private school in this case addresses the student’s unique needs and provides her with an educational benefit as evidenced by her progress thereat. (Id.)

The Parent attended the IEP meeting, visited the recommended DOE school, and served the DOE with notice of her disapproval of that school, (Id, T-117 & P-H) 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 of tuition reimbursement and/or funding to the Parent.

The IDEA specifically includes transportation, as well as any modifications or accommodations necessary in order to assist a student to benefit from his or her special education, in its definition of related services. (See 20 U.S.C. § 1401[26], see also 34 CFR 300.34[a], [c][16]) In addition, State law defines special education as “specially designed instruction . . . and transportation, provided at no cost to the parents to meet the unique needs of a child with a disability,” and requires school districts to provide disabled students with “suitable transportation to and from special classes or programs.”

(See Educ. Law §§ 4401[1], 4402[4][a], see also Educ. Law § 4401[2] and 8 NYCRR 200.1[ww]) Specialized transportation must be included on a student's IEP if required to assist the student to benefit from special education. (SRO No. 03-053) If a CSE determines that a student with a disability requires transportation as a related service in order to receive a FAPE, the district must ensure that the student receives the necessary transportation at public expense. (See Transportation, 71 Fed. Reg. 46576 [Aug. 14, 2006]; see 8 NYCRR 200.1[ww])

The State Education Department has indicated that a CSE should consider a student's mobility, behavior, communication, physical, and health needs when determining whether or not a student requires transportation as a related service, and that an IEP “must include specific transportation recommendations to address each of the student's needs, as appropriate.” (See “Special Transportation for Students with Disabilities,” VESID Mem. [Mar. 2005]) Other relevant considerations may include the student's age, ability to follow directions, ability to function without special transportation, the distance to be traveled, the nature of the area, and the availability of private or public assistance. (See Donald B. v. Bd. of Sch. Commrs., 117 F.3d 1371, 1375 [11th Cir. 1997] and Malehorn v. Hill City Sch. Dist., 987 F. Supp. 772, 775 [D.S.D. 1997])

When reviewing the transportation provisions made for a student by a district, the relevant question is whether the transportation arrangements are appropriate to meet the student's needs. (SRO No. 03-054)

In this case, there is no indication in the hearing record as to the student's need for special transportation during the 2018-2019 school year or any indication that special transportation was previously requested. The student’s IEP dated April 9, 2018 does not recommend the student for special education transportation. Additionally, there is no evidence in the hearing record as to how the student was transported to and from the private school each day during the 2018-2019 school year. Accordingly, the hearing record does not support a finding that the district denied the student a FAPE due to the lack of provision for special transportation.

However, this does not constitute a determination regarding the student's entitlement to transportation as available to regular education students or suitable transportation as available to students attending nonpublic schools “for the purpose of receiving services or programs similar to special education programs recommended” by the CSE. (See Educ. Law 3635; 4402[4][[d]) If the DOE has not done so already, it should consider reimbursing the Parent for transportation of the student to the private school during the 2108-2019 school year in accordance with the above.

For all of the reasons stated herein, I find that the Burlington/Carter test is satisfied in favor of the Parent and that she has met her burden under Schaffer to prevail in her request for tuition reimbursement.

NOW therefore, it is hereby

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

ORDERED that the DOE shall also conduct a re-evaluation of the student in all areas of her suspected disabilities, not evaluated within the last two years, for the 2020- 2021 school year; and it is further

ORDERED that the CSE shall forthwith reconvene after the completion of the student’s evaluations and consider all of the student’s evaluations and any other relevant information and produce a new IEP for the student’s 2020-2021 school year; and it is further

ORDERED that any of the other relief sought by the Parent not addressed by this decision is found to be either agreed upon by the parties, withdrawn by the Parent, outside the scope of the IHO’s authority or unsupported by the record. DATED: October 21, 2020 _____________________________

New York, New York Edgar De Leon - IHO

NOTICE OF RIGHT TO APPEAL

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

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

An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov. (Rev. 07/09/20)