New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACTS & DECISION

Case Number: 182750

NYS Identifier Number N/A Student’s Name: [“Confidential”]

Date of Birth:

District:

Hearing Requested By: Parent

Dates(s) of Hearing: 11/07/19

Actual Record Close Date: 04/24/20

Hearing Officer: Edgar De Leon

NAMES AND TITLES OF PERSONS WHO APPEARED

Title For Date DOE Representative DOE 11/07/19 DOE Representative DOE 11/07/19 Attorney PARENT 11/07/19 Interpreter PARENT 11/07/19 Witness PARENT 11/07/19

On May 21, 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 ofa 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 IHO. After adjournments were granted at the request of and consent of the parties, or for good cause, the impartial hearing was held on November 7, 2019. The parties opted to submit written closing statements which were received on December 20, 2019. (D-6 & P-K) A list of the witnesses who appeared at the hearing 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 request the following relief: Funding/reimbursement for the student's tuition at the private school for the 2018-2019 school year.

THE DOE’S CASE

The DOE argues that the school psychologist testified that the student’s IEP meeting on September 12, 2018, consisted of updated testing and input from the student’s teachers. (D-6) The resulting IEP mirrors the student’s independent Neuropsychological Evaluation, and occupational therapy and speech services were appropriately recommended. (Id.) No further testing of the student was required. (ld.)

The IEP team consisted of a general education teacher, speech therapist, special education teacher and a psychologist as required. (D-1 & D-6)

The DOE further argues that the CSE team made numerous attempts to reach out to the Parent, who stated that the family moved out of the country for two years from 2014-2016 and did not notify the CSE. (D-6, citing T-144) In March of 2018, the Parent did not object to the student being declassified. (D-6)

The DOE called (1) witness to testify on its behalf and submitted (6) documents into evidence. The testamentary and documentary evidence for and against the DOE’s case is incorporated in the decision below.

THE PARENT’S CASE

The Parent argues that for the 2018-2019 school year, the student required small classes that could provide him with a high level of individual attention, instruction, and support and systematic, multisensory, phonics-based reading instruction, within a small, special education school setting. (P-K, citing T-100, 102-03 & P-C) When the student was years old, the family moved to and remained there for the 2015-2016 and 2016-2017 school years. (P-K, citing T-125 & P-C) The family returned to New York City for the 2017-2018 school year and enrolled the student in a private school. (P-K citing PC)

The Parent further argues that the student failed to make adequate progress during at the private school during the 2017-2018 school year. (P-K citing T-125-6 & P-C) The Parents then had the student privately evaluated privately and found that the student’s pre-reading and reading skills were significantly impaired, that his writing skills were poor, that the student had significant weaknesses in working memory, as well as ADHD, exhibited frustration on testing when tasks were difficult for him and had language weaknesses, consistent with a Language Disorder diagnosis. (P-K citing P-C) The evaluation recommended that the student be placed in a “small class in a special education school” that would be able to provide him with “intensive, individualized instruction” using a “multisensory approach”, including reading instruction “using a systematic, phonics-based program, such as Orton-Gillingham or Wilson Reading

Systems.” (Id.)

The also argues that at the September 12, 2018 IEP meeting, the Parent was not provided with a Interpreter. (P-K citing T-32, 130 & D-1) The DOE inappropriately recommended an ICT class on a part time basis in a community school setting for the student’s 2018-2019 school year. (P-K citing T-35 & P-C) Nevertheless, the Parent visited the recommended public school and found it inappropriate for the student. (P-K citing T-132-5, 139-43 & P-E)

Additionally, the DOE did not present any evidence that the student was declassified sometime during the 2017-2018 school year, and in either case, on July 9, 2018 the Parent submitted a letter to the DOE requesting an IEP and placement and providing consent for the DOE to evaluate the student, which must be construed as a request that the student be reclassified as a student with a disability and as a request for initial evaluation for eligibility. (P-K citing P-B) Subsequently, the DOE failed to conduct adequate evaluations of the student in all areas of his suspected disabilities prior to developing his September 12, 2018 IEP. (P-K)

The Parent asserts that the DOE concedes the independent Neuropsychological Evaluation recommended that the student attend a small special education class in a special education school and that the CSE had relied exclusively upon that evaluation in creating the student's IEP. (P-K citing T-35, 47-8 7 P-C) The DOE also admitted that the student’s private school stated that the student needed a smaller class than an ICT class.

(P-K citing T-50) The Parent also notes that the IEP omits mention of the student's Language Disorder or Specific Learning Disability with Impairment in Reading diagnosis, even though the DOE admitted that such diagnoses have any important implications for student’s ability to learn. (P-K citing T-33 & D-1) The IEP further fails to recommend that the student be instructed using a multisensory approach, despite the importance of such an approach to “reinforce learning” for the student. (P-K & P-C-13)

The Parent also argues that an IEP cannot be upheld as adequate where it lacks goals in “fundamental areas in which the child experienced a deficiency.” (P-K citing Pawling Cent. Sch., 771 N.Y.S.2d at 576)

The private school Language Program Director and Related Services Coordinator testified that the private school appropriately addressed the student’s needs during the 2018-2019 school year because it is a small school dedicated to addressing the needs of children with language-based learning disabilities, where students are grouped into small, highly supportive classes for different subjects throughout the day based upon their needs and abilities. (P-K citing T-70-1, 77, 96, 171 & P-F) The private school’s curriculum is aligned to Common Core standards, but instruction is modified and individualized to address students’ particular needs using a multisensory approach and the teachers are all trained in Orton-Gillingham, a language-based, multisensory, structured, sequential, cumulative approach to teaching literacy skills. (P-K citing T-72-4 & P-F) The student was grouped for multisensory Orton-Gillingham Reading instruction in a group of only (3)

other students functioning on a similar level with a teacher who is a Master’s level New York State certified special education teacher. (P-K citing T-83 & P-G)

At the private school, the student also received individual Speech-Language Therapy twice weekly from a licensed Speech-Language pathologist. (P-K citing T-71, 75, 92 & P-G) The student also received once-weekly Social Skills Group led by a school psychologist, and incorporated work on using language in social contexts during his

Science, Pragmatics classes as well as during his Regulation and Coordination classes.

(P-K citing T-90-1 & P-G) Additionally, the student received individual Occupational Therapy two times per week by a Certified Occupational Therapy Assistant that focused on addressing the student’s graphomotor and visual motor challenges and on providing sensory support. (P-K citing T-92 & 94-95) The student made progress at the private school during the 2018-2019 school year. (P-K citing T-95-8, 136-7 & P-H) A portion of student’s private program includes religious content that consist of five minutes of prayer during four afternoons of the student's school week. (P-K citing T-90 & P-E-)

The Parent called (1) witness to testify on her behalf and submitted (11) documents into evidence. The testamentary 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, 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.

och. 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. §

141 5/F[SI[EIlii]; 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]Iii] 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, "[ulltimately, 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][l] 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][Clliii]; 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)

As noted above an appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs. (See 34 C.F.R. § 300.320[a][1] and 8 NYCRR 200.4[d][2][i])

A Psychoeducational Evaluation dated September 27, 2018 was submitted in evidence by the DOE. (D-3). It consist of (1) page and does not provide any evaluative material. (Id.) Additionally, the document was created after the student’s IEP meeting held on September 12, 2018. (D-1 & D-3) The only evaluative material submitted in this case is the Parent's independent Neuropsychological Evaluation dated March and April of 2018. (P-

C) It was also the evaluation used by the student's IEP team on September 12, 2018. (P-K citing T-35, 47-8 7 P-C & D-1) In sum, substance and relevant part, the student’s independent Neuropsychological Evaluation makes the following findings and recommendations: Neuropsychological evaluation has revealed that multiple factors are contributing to [STUDENT NAME]'s current difficulties: (1) [STUDENT NAME] has weaknesses in several cognitive skills that underlie reading ability, including phonological processing and working memory. His pre-reading and reading skills are significantly impaired; his presentation is consistent with a diagnosis of a Specific Learning Disorder with Impairment in Reading; (2) [STUDENT NAME] exhibits significant weaknesses in his attention, consistent with a diagnosis of ADHD - Predominantly Inattentive Presentation, (3) [STUDENT NAME] has significant weaknesses in his expressive language skills, consistent with a diagnosis of a Language Disorder....

In light of the findings of this evaluation, the following recommendations are offered:

1. With regard to an appropriate educational setting for [STUDENT NAME], it is recommended that he attend a small class in a special education school where he will receive intensive, individualized instruction to meet his learning needs.

2. [STUDENT NAME] should receive speech-language therapy that focuses on developing his expressive language skills. Emphasis should be placed on developing his skills in the areas of correct word usage, sentence formulation, and word-finding. In addition, therapy should focus on increasing his ability to follow verbal directions.

3. Given that [STUDENT NAME]'s significant attention weaknesses exacerbate his difficulties with learning, it is recommended that [STUDENT NAME]'s parents consult with a child psychiatrist or neurologist about medication to address his ADHD symptoms.

4. [STUDENT NAME] should be taught to read using a systematic, phonicsbased program, such as Orton-Gillingnam or Wilson Reading Systems. It is important that instruction be systematic and involve considerable repetition.

Focus should be placed on developing his phonological processing skills to facilitate bls learning to read and spell.

5. [STUDENT NAME] would benefit from being taught using a multi-sensory approach. Visual, auditory, tactile, and kinesthetic channels should be used to reinforce learning whenever possible.

6. It is important that [STUDENT NAME] practice sight words many times.

Even when he appears to have learned a word, it is recommended that he occasionally review it. [STUDENT NAME] may enjoy using game apps, such as Eggy Words - Sight Words, for additional practice with sight words. '

7. In a classroom, [STUDENT NAME] should be seated away from possible distractions, such as a window or a talkative classmate.

8. To help address [STUDENT NAME]'s word-finding difficulties, the following techniques and exercises can be used. It is important to remember that the goal is to teach [STUDENT NAME] to retrieve words without the help of his parents or teachers. Therefore, in addition to practicing the strategies below, he should learn how to implement them on his own. (a.) Ask him to identify the initial sound of the word he is trying to retrieve. If he has difficulty, the adult may provide [STUDENT NAME] with the initial sound and ask him to complete the word. (b.) Ask [STUDENT NAME] to think of homonyms (words that sound like same as the target word) or synonyms (words with the same meaning as the target word). (c.) For some words, suggest [STUDENT NAME] pretend to use the object and see if that helps him to retrieve the sought-after word. (d.)

Ask him to select the target word from an array of possible words using a multiple-choice format ("Was the word you were thinking of banana, apple, or tangerine?"). (P-C)

The student’s IEP dated September 12, 2018 recommends that the student be placed in an “Integrated Co-Teaching Class” (“ICT”), which is wholly inconsistent with the only evaluation available to the CSE team. (D-1 & P-C) New York City classrooms with ICT services include students with IEPs and students without IEPs, where more than (12) (or 40%) of the students in the class can have IEPs. There are two teachers in an ICT class, a general education teacher and a special education teacher. ICT classes must adhere to general education class size limits. As such, ICT classes that normally have a class size limit of (20) students will increase to (25) students, with a maximum of (10) students having disabilities.

The only evaluative material available to the IEP team on September 12, 2018 recommends that the student be placed in “a small class in a special education school where he will receive intensive, individualized instruction to meet his learning needs.” (P-C) There is no substantive basis in the record for deviating from this recommendation and it indicates that the IEP created on September 12, 2018 does not accurately reflect the results of the only evaluation available to the DOE to identify the student's needs. (See 34 C.F.R. §

300.320[a][1] and 8 NYCRR 200.4[d][2][i]) For the reasons stated above, I find that the student was denied a FAPE for the 2018-2019 school year.

I now turn to the question of whether the private school was an appropriate placement for the student’s 2018-2019 school year. Here the Parent need only demonstrate that the placement 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. (See Gagliardo & Frank G., supra)

The private school it is a small school dedicated to addressing the needs of children with language-based learning disabilities, where students are grouped into small, highly supportive classes for different subjects throughout the day based upon their needs and abilities. (T-70-1, 77, 96 & 171) The private school’s curriculum is aligned to Common Core standards, with instruction modified and individualized to address students’ particular needs using a multisensory approach and with the teachers all trained in Orton-Gillingham, a language-based, multisensory, structured, sequential, cumulative approach to teaching literacy skills. (P-F) The student was grouped for multisensory Orton-Gillingham Reading instruction in a group of only (3) other students functioning on a similar level with a teacher who is a Master’s level New York State certified special education teacher. (T-83 & P-G)

At the private school, the student also received individual Speech-Language Therapy twice weekly from a licensed Speech-Language pathologist. (T-71, 75, 92 & P-

G) The student also received once-weekly Social Skills Group led by a school psychologist, and incorporated work on using language in social contexts during his

Science, Pragmatics classes as well as during his Regulation and Coordination classes.

(T-90-1 & P-G) Additionally, the student received individual Occupational Therapy two times per week by a Certified Occupational Therapy Assistant that focused on addressing the student’s graphomotor and visual motor challenges and on providing sensory support.

(T-92 & 94-5) The student made progress at the private school during the 2018-2019 school year. (T-95-8, 136-7 & P-H) A portion of student’s private program includes religious content that consist of five minutes of prayer during four afternoons of the student’s school week. (T-90 & P-E-)

For the reasons stated above, I find that the private school was an appropriate placement for the student's 2018-2019 school year in that it was designed to meet the unique needs of the student and was supported by such services that permitted him to benefit from instruction.

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 to the Parent. For all of the reasons stated herein, I find that the Burlington/Carter test is satisfied in favor of the Parent and that they have met their burden under schaffer to prevail in their 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, or directly pay the cost of the student's tuition at the private school for the entirety of the student's 2018-2019 school year thereat; and it is further

ORDERED that the DOE shall also conduct a re-evaluation of the student in all areas of his 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: May 4, 2020

New York, New York Edgar De Leon - I.H.O.

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. Directions and forms can be found on the Office of State Review website: http://www.sro.nysed.gov/RevisedRegulationsOverview.html

DOCUMENTATION ENTERED INTO RECORD

01. Number/Letter Title Dated For #of Pages IEP 09/12/18 DOE 15 pages DOE

02. CSE Minutes 09/12/18 DOE 01 pages DOE

03. Psychological Evaluation 09/27/18 DOE 01 pages DOE

04 PWN 09/27/18 DOE 03

05 School Location Letter 10/17/18 DOE 02

06 Closing Statement 12/20/19 DOE 03

IHR 04/24/19 PARENT 07

A-T-IOMoVOWSY

Letter from Parent 07/05/18 PARENT 02

Neuropsychological Evaluation 07/27/18 PARENT 13 Letter from Parent 08/20/18 PARENT 02

Letter from Parent 12/19/18 PARENT 03

Mission Letter undated PARENT 11

Class Schedule 2018-2019 PARENT 02

Progress Report 06/01/19 PARENT 05

Tuition Contract 09/03/18 PARENT 02

Proof of Payment various PARENT 05

Closing Statement 12/20/19 PARENT 32

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