NY IHO #184762: New York City... | Special Education Law

NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.

FINDINGS OF FACTS & DECISION

Case Number: 184762

NYS Identifier Number

Student’s Name:

District:

Hearing Requested By: Parent

Dates(s) of Hearing: 11/05/19, 02/26/20 & 04/23/20

Actual Record Close Date: 08/10/20

Hearing Officer: Edgar De Leon

DOCUMENTATION ENTERED INTO RECORD

Number/Letter Title Dated For # of Pages

01 IEP 05/29/19 DOE 25

02 PWN 05/31/19 DOE 03

03 PWN 06/13/19 DOE 06

04 Classroom Observation 05/22/19 DOE 01

05 Psychological Evaluation 05/24/19 DOE 11

06 End of Year Report 05/2019 DOE 08

07 Program Description undated DOE 02

08 Audiological Report 05/28/19 DOE 13

09 Resolution Agreement 07/31/19 DOE 02

10 Social History 04/05/19 DOE 02

11 Closing Statement 05/22/20 DOE 11

A DPC 07/01/19 PARENT 12

B 10-Day Letter 06/17/19 PARENT 04

C School Flyer undated PARENT 02

D Classroom Observation 05/22/19 PARENT 02

E Email Chain 05/24/19 PARENT 03

F School Report 01/2019 PARENT 07

G PT Report 05/24/19 PARENT 02

H PT Goals undated PARENT 02

I Hearing Report undated PARENT 02

J S & L Report undated PARENT 01

K Psychological Evaluation 2019 PARENT 11

L End of Year Report 05/2019 PARENT 08

M Enrollment Contract 2019-2020 PARENT 02

N Mid-Year Report 12/2019 PARENT 09

O Affidavit of 04/17/20 PARENT 12

P Affidavit of 04/17/20 PARENT 07

Q Affidavit of 04/17/20 PARENT 09

R Affidavit of 04/17/20 PARENT 12

S Affidavit of 04/17/20 PARENT 07

T Affidavit of 04/17/20 PARENT 12

U Closing Statement 05/22/20 PARENT 30

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

On July 9, 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 November 5, 2019, February 26, 2020 and April 23, 2020. The parties opted to submit written closing statements which were received on May 22, 2020. (D-11 & P-U) 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) Tuition and costs at the private school; and

(b) 3 x 30-minute sessions per week of home-and community-based Physical

Therapy; and

Therapy;

(d) One 60-minute session per week of Hearing Education Services; and

(e) Costs of a neuropsychological evaluation; and

(f) Compensatory education services; and

(g) Any and all educational services the student is entitled to that the DOE failed to provide, including her pendency entitlements.

THE DOE’S CASE

The DOE called (3) witness to testify on its behalf and submitted (11) documents into evidence. In sum, substance and relevant part, the testimony and documentary evidence on behalf of the DOE is as follows:

The gravamen of the DOE’s case is that it did offer the student a FAPE for the 12- month 2019-2020 school year. The DOE argues that on May 29, 2019, an IEP meeting wherein the student was classified as having a hearing impairment and recommended a 12-month 12:1:1 program in a school with occupational therapy (“OT”), physical therapy (“PT”), speech and language therapy (“SLT”), counseling services, auditory oral methodology in the classroom, hearing assistive technology, support from an audiologist with respect to the use of an FM unit, and specialized transportation. (D-

11 citing D-1) The meeting was attended by a related service provider/special education teacher, the Parent, the school psychologist acting as the district representative, an early childhood teacher, a social worker and an audiologist. (D-1) The IEP team reviewed the student’s psychological evaluation date May 24, 2019. (T38, D-1 & D-5) They also reviewed the student’s classroom observation dated May 22, 2019 (D-4), an end of year report dated May, 2019 (D-6), an Audiological Report dated May 28, 2019 (D-8) and a social history dated April 5, 2019 (D-10). All of these evaluations were recently conducted.

The resulting IEP identified that the student’s management needs as the support of a structured program using the auditory oral methodology with a full-time teacher of the deaf/hard-of-hearing to address her speech/language and academic delays, hearing assistive technology (FM) to address the student's needs as a hearing-Impaired student, repetition and modeling of instruction as needed, small group instruction, positive reinforcement, teacher prompting and check-ins, an exemplar/model to help the student formulate her own work, anchor charts/visuals, prompting and redirection, structured activities and seating near an adult. (D-1) The May 29, 2019 IEP also states the following:

At the IEP meeting on 05/29/2019, parents were in agreement that would benefit from a smaller class setting, and the services Speech and Language, Occupational Therapy, Physical Therapy, Counseling should be provided. In order to access the curriculum, requires a smaller class setting where her needs can be met in the least restrictive environment, 12:1+1 in a program. Parents were explained their rights, and they stated that they understood and agreed with the recommendation. (Id.)

The IEP also mandates that the student receive services in a “special class” on a 12-month basis. (Id.) The IEP team considered a Special Class in a community school

12:1 and a Special Class in a specialized school 6:1+1 but rejected these considerations because: “ requires an individual educational program because of her unique needs due to her classification of Hearing Impairment. The IEP team was in agreement that this classification is most appropriate as it is affecting her the most in the academic setting, however speech and language as well as 's physical abilities were of noted concern by the team as well.” (Id.) The IEP identified the student’s strengths and deficits and provides goals designed to address those deficits. (T-38-45 and D-1, reflecting the findings and recommendations in D-4, D-

5, D-6, D-7, D-8 & D-10) The IEP team discussed support from a 1:1: paraprofessional, but ultimately did not believe that the student required that to perform in class or interact with peers. (T-80)

The audiologist that testified for the DOE explained the student’s audiological reports at the meeting and why “hearing impairment” was an appropriate disability classification for the student because her speech and language delays, as well as the level of her hearing loss, require a small, structured program to help her develop speech and language and academic skills using auditory oral methodology along with the support of related services. (T-106, 110 & D-8) The DOE “ ” supervisor testified that if the Parent had accepted the recommended placement, the student would have been placed in a K-1 12:1:1 class, in which the head teacher has a Master’s degree in deaf education and early childhood education and the teachers, who have Deaf and

Hard of Hearing licenses, are also trained to modify and differentiate instruction for students. (T-177-80 & 200-201) The academic classes are taught by classroom teachers who are licensed special education teachers. (T-191-2)

Finally, the DOE argues that there is no evidence that the student’s private school program is or was likely to produce progress, because the speech and language therapist that testified on behalf of the Parent admitted that the student requires additional in-home speech services and auditory verbal therapy that the private school does not provide. (D-11 citing T-223 & 245) The private school also does not provide

Physical therapy services. (D-11 citing T-232)

THE PARENT’S CASE

The Parent called (6) witnesses to testify on her behalf via affidavit pursuant to 8 NYCRR 200.5[j][3][xii][f] and submitted (21) documents into evidence. (P-O, P-P, P-Q, P-R, P-S & P-T) In sum, substance and relevant part, the testimony and documentary on behalf of the Parent is as follows:

The Parent argues that based on the student’s audiology reports, the DOE automatically determined that she should be grouped with certain other students with hearing loss and recommended for the auditory oral teaching program simply based on the fact that the student had hearing loss. (P-U) Contrary to the DOE’s assertion, the school psychologist testified that she could not recall if anyone objected to the student’s classification. (P-U citing T-51)

The DOE school psychologist also conceded that the DOE did not do any of its own testing of the student and did not disagree with the private psychologist who found and recommended the following: the student is not toilet trained, her mobility is slow, she requires prompting, her processing speed is significantly impaired, she requires special education supports, she shows signs of impulsivity and distractibility requires redirection requiring a small educational setting and intensive remediation, she displays disruptive behaviors and struggles to act in a social acceptable manner. (P-U citing T-

73 & D-5) The student requires placement in a small, supportive full-time special education class within a small special education school that can address her behavioral, learning, and social profile, substantial interventions and services in order to function across all domains of daily living, a highly structured full-time educational program with a strong behavioral plan that is administered by a highly trained special educator, with the availability of 1:1 teaching to target her areas of deficit while capitalizing on her areas of strength. (Id.)

Despite the student’s need for 1:1 support, the DOE did not assign a paraprofessional to the student because it is only given to address behavior, or for crisis for health reasons.” (P-U citing T-49) The Parent asserts that the DOE psychologist

“cavalierly” stated that her impression from the many reports that state that the student requires 1:1 support throughout the day, but although she may benefit from 1:1 support, she does not “need” it. (P-U citing T-80) Additionally, the DOE psychologist could not point to any goals that addressed the student’s need for behavioral support and acknowledged that none of the goals contained short term objectives. (P-U citing T-86)

The Parent also argues that the DOE audiologist admitted that the recommended program is not recommended for children with serious cognitive impairments and stated:

“it depends on what the dominant challenge is for the child. Can the child benefit from an auditory oral program, or does the child need a more structured methodology, smaller class, more structured methodology?” (P-U citing T-128 & 141)

The Parent further asserts that the recommended DOE school houses grades K-

5 and has three floors, which is a problem for the student that has well documented gross motor and ambulation issues. (P-U citing T-187) What’s more, there is no bathroom attached to the recommended classroom and while the classroom paraprofessional escorts the children into the hallway but does not provide actual toileting assistance, which the student needs because she is not toilet trained. (P-U citing T-193-5)

The Parent relies heavily on the testimony of the Parents’ private psychologist, who via affidavit, gave his direct testimony as follows:

Regarding the DOE’s recommended program, I have had the occasion to visit the DOE’s hearing-impaired classes at and other locations, and I have sent children to those kinds of programs over the years when appropriate. I think there are a lot of good programs for children throughout , and some children do well with the auditory oral method that they use in these classes. However, I can definitely state without equivocation that this program is completely inappropriate for . Even in a class of eight, in a full-time special education school, she was not accessing and making the progress that she needed to, which is why she was moved to a class of 6 for the 2019-2020 school year when she began kindergarten. This assessment was shared with the therapist and educators working with at the time as well. Without a doubt there was nothing that I saw, read, or could even fathom that would warrant a less restrictive setting, or a decrease in services or intensity of support. Also, there is the fact that she was transitioning into kindergarten. Based on my knowledge of the recommended program and everything I know about , it was not an appropriate recommendation.

Based on my observations, teacher reports, testing, and review of records, we recommended that she should continue with at least the level of support she was getting, and certainly not receive any less, or go into a bigger classroom, with any less intervention. At a bare minimum we needed to keep her at this level. And on a therapy level, focusing on her communication skills, her adaptive skills, her social skills, her physical needs, she needed to at least continue with her then current level. She certainly needed the support and expertise offered by special education teachers, and not a class geared toward teaching child whose primary need is their hearing impairment taught by a teacher of the hearing impaired. (P-U citing P-P)

The speech-language pathologist that testified for the Parent also opined that the recommended DOE school is inappropriate for the student. (P-R) She also testified on direct via affidavit and stated the following: I was and am well versed in the auditory oral 12:1:1 program at . Regarding the auditory oral teaching methodology, children with hearing loss or deafness are on a spectrum. There is American Sign Language classrooms on the one end that is a fully visual form of communication and learning. In the middle of the spectrum are total communication classrooms, which employs a combination of spoken language and ASL. On the opposite end of the spectrum would be an auditory-oral classroom, where the focus is on listening and spoken language. Visuals are not a focus, or a priority for auditory-oral classrooms as children use their listening to learn.

I went on the visit with ’s mother because I wanted to see the program for my own eyes. Although I know many of the students and staff, I had not actually visited the program to see the facility it was housed within, nor have I observed how they operate in the classroom and throughout the school. I wanted the opportunity to visit to help determine if it could be an appropriate fit for . It is a lovely program and I have sent many of my former students to the program. I observed a warm environment and saw the teachers doing great work. However, the physical environment was one of the first things that jumped out at me, as it would literally have been impossible for to navigate. There are several staircases to get to the lunchroom and classroom. There is an elevator at the end of the hall, but it would take a great deal of time and assistance to enter the building, get to the elevator and then move to the different locations she would need to go to throughout the day. The bathrooms are in the hallways and are shared with the mainstream school. There were no adaptive accommodations in the bathroom for to help herself, and she typically needs an adult to assist her. They said they went on multiple field trips during the summer with typically one teacher and one paraprofessional for the group of 12 students and they would be using public transportation. This again would not be possible given 's physical delays; it would be extremely unsafe to go on such a trip with so few adults. Speech mandates were often in larger groups in a separate part of the classroom. It could be noisy and distracting for who still receives the majority of her speech services at school in a therapist office. The student population, speaking from my firsthand experience of auditory oral classrooms and the type of student who goes there from the and other places, are children whose hearing loss is often later identified, so they are later amplified. They may end up in the auditory oral school-aged program because they are not quite ready to enter the mainstream, but the goal of an auditory oral classroom is for them to ultimately enter the mainstream and that was what was being told to us on the tour. They also told us the students are doing mainstream art, and they combine with the mainstream classrooms for art and science I believe. This also struck me as something that would be difficult for to do. It was evident to me based on my observations and our conversations with the teacher that language delay due to hearing loss is the primary diagnosis and need - language delay secondary to hearing loss, of the students they serve. I could see that these kids were otherwise typically developing children with hearing loss.

would not have been on par with these peers

whatsoever in terms of her cognition and their social and play skills. They told us they were expected to be independent in their associative social play, and that there wasn't scaffolding which is something that required and still requires. They were expected to be writing and writing sentences by the end of the year, which is still something that we're not expecting to be able to do currently due to where her cognitive and physical delays are. We saw clusters of desks where the children were expected to work in groups and work independently.

There was an overall degree of independence that these children were supposed to have to be able to interact with their peers to accomplish a task in these group settings that unfortunately just cannot do. The students were mixed in age; Kindergarten, 1st, and 2nd graders within one classroom. There were many kids already reading or learning to read, and it would have been expected that or any child in that classroom would be on the pathway as well.

Throughout the tour, and I described who

is and explained 's skills. We indicated that 's primary diagnosis is not her hearing loss; it is her global delays. When we discussed this and the population within the auditory oral classroom, the teacher explained that when a student’s primary diagnosis is not their hearing loss, when there is a more significant diagnosis, those children are counseled out of the program. The goal of an auditory-oral classroom is to get them into their least restrictive environment and into the mainstream with their peers. I would have loved if was on that path, but she is not. If she was an appropriate match for the program I would have gladly told her parents to send her there. However, the recommended program was entirely and completely inappropriate for and would not meet her many needs across multiple domains. In fact, back when transitioned out of EI into the DOE CPSE, the CPSE had asked

’s parents to visit the .

went for a tour and observation there and the rejected as not appropriate for the because of her global delays. (P-U citing P-R)

The Parent also called an “ ” provider to testify on her behalf, who also stated that the recommended DOE school is inappropriate for the student. (P-S) She testified that the primary classification, and the only children that make up the population at the DOE school, are students with hearing loss. (P-U citing P-S) The proposed DOE teacher does not have a special education teaching license. (Id.) The witness further testified that “I have been to the 12:1:1 auditory oral program at and I know is a great teacher. If was a child who presented with hearing loss only, or as her primary disability, I think it might have been a good option, but sadly this is not the case.” (Id.) The student’s mother essentially echoed the testimony of the private speech pathologist and supervisor. (P-T)

The gravamen of the Parent’s argument is that the DOE engaged in impermissible pre-determination as evidenced by the DOE’s social worker’s recommendation for the Parent to look into the auditory oral program at the DOE school

(1.5) months prior to the May 29, 2019 IEP meeting. (P-U) Quoting one of her witnesses, the Parent states that “…the DOE really used the hearing impairment solely to identify what placement they thought would have for the upcoming school year. ’s hearing impairment is an important part of the puzzle for , but we tried to make them understand that it is not her primary disability…” (Id.)

The Parent present evidence 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 her to benefit from instruction. (See Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65) There is also no reason to believe that the Parent did not cooperate with the DOE and that equitable considerations should bar an award on her behalf. However, I need not make a determination regarding the appropriateness of the private school or the Parent’s cooperation, because the record in this case evidence that the DOE did offer the student an educational program reasonably calculated to enable her to make progress appropriate in light of her circumstances. (See Endrew F. v. Douglas County Sch. Dist. RE-1, 580 U.S. __, 137 S. Ct. 988, 998-1001 [2017])

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 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)

All the DOE is required to do under the law is offer the student an educational program reasonably calculated to enable her to make progress appropriate in light of her circumstances. (See Endrew F. v. Douglas County Sch. Dist. RE-1, 580 U.S. __, 137 S. Ct. 988, 998-1001 [2017]) As noted above, 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 & Cerra, supra) An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, provides for the use of appropriate special education services and can be properly implemented. (Supra)

Procedurally, pursuant to 8 NYCRR § 200.3(a)(1), the membership of each CSE shall include, but not be limited to: (1) the parents or persons in parental relationship to the student; (2) one regular education teacher of the student whenever the student is or may be participating in the regular education environment; (3) one special education teacher of the student, or, if appropriate, one special education provider of the student;

(4) a school psychologist; (5) a representative of the school district who is qualified to provide or supervise special education and who is knowledgeable about the general education curriculum and the availability of resources of the school district, this may also be the same individual appointed as the special education teacher/provider, or the school psychologist; (6) an individual who can interpret the instructional implications of evaluation results, such as the regular education teacher, the special education teacher/provider, the school psychologist, the representative of the school district or a person having knowledge or special expertise regarding the student as determined by the school district; (7) a school physician, if specifically requested in writing by the parent of the student or by a member of the school at least 72 hours prior to the meeting; (8) an additional parent member of a student with a disability residing in the school district or a neighboring school district, whose child has not been declassified or graduated for over five years unless the parents of the student request in writing that the additional parent member not participate in the meeting; (9) other persons having knowledge or special expertise regarding the student, including related services personnel as determined by the party (parents or school district) who invited the individual to be a member of the CSE; and (10) if appropriate, the student.

Here the student’s IEP meeting on May 29, 2019 was attended by a related service provider/special education teacher, the Parent, the school psychologist acting as the district representative, an early childhood teacher, a social worker and an audiologist. (D-1) CSE team did not include a “Parent Member”, which may be argued as a procedural deficiency. 8 NYCRR § 200.3(a)(1)(viii) states:

200.3 Committee on special education and committee on preschool special education.

(a) Each board of education or board of trustees shall appoint:

(1) committees on special education in accordance with the provisions of Education Law, section 4402, as necessary to ensure timely evaluation and placement of students. The membership of each committee shall include, but not be limited to:

(viii) an additional parent member of a student with a disability residing in the school district or a neighboring school district, provided that the additional parent member may be the parent of a student who has been declassified within a period not to exceed five years or the parent of a student who has graduated within a period not to exceed five years. Such parent is not a required member if the parents of the student request that the additional parent member not participate in the meeting; (emphasis added)

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)

Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007] aff'd, 2008 WL 3852180 [2d Cir. Aug.

19, 2008]) Here, I do find that the DOE offered the student a FAPE and that the record evidences the Parent’s participation at the IEP meeting. (Supra) I do not believe that the lack of a “parent member” at the meeting deprived the student of educational benefits. For all of the reasons stated herein, I believe that the IEP meeting on May 29, 2019 was duly constituted under the law.

The IEP also accurately reflects the results of the student’s very recent evaluations, identifies the student’s needs, establishes annual goals related to those needs, provides for the use of appropriate special education services that can be properly implemented. (Supra) Here, the IEP team reviewed the student’s independent psychological evaluation date May 24, 2019. (T-38, D-1 & D-5) They also reviewed the student’s classroom observation dated May 22, 2019 (D-4), an end of year report dated May, 2019 (D-6), an Audiological Report dated May 28, 2019 (D-8) and a social history dated April 5, 2019 (D-10). All of these evaluations were recently conducted. Pursuant to Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008) a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student. (emphasis added) The operative word being “considered”, not adopt. Here the DOE did consider the Parent’s independent psychological evaluation, and a litany of recent evaluations produced in May of 2019, to identify the student’s needs and create the May 29, 2019 IEP.

I find that the May 29, 2019 IEP properly classified the student as having a hearing impairment, as her hearing loss is undisputed. (Supra) The audiologist explained the student’s audiological reports at the meeting and testified as to why “hearing impairment” was an appropriate disability classification for the student because her speech and language delays, as well as the level of her hearing loss, require a small, structured program to help her develop speech and language and academic skills using auditory oral methodology along with the support of related services. (T-106, 110 & D-8)

The DOE recommended a 12-month 12:1:1 program in a school with occupational therapy (“OT”), physical therapy (“PT”), speech and language therapy (

“SLT”), counseling services, auditory oral methodology in the classroom, hearing assistive technology, support from an audiologist with respect to the use of an FM unit, and specialized transportation. (D-1) The IEP identified that the student’s management needs as the support of a structured program using the auditory oral methodology with a full-time teacher of the deaf/hard-of-hearing to address her speech/language and academic delays, hearing assistive technology (FM) to address the student's needs as a hearing-Impaired student, repetition and modeling of instruction as needed, small group instruction, positive reinforcement, teacher prompting and check-ins, an exemplar/model to help the student formulate her own work, anchor charts/visuals, prompting and redirection, structured activities and seating near an adult. (Id.) I find that all of these services offer the student an educational program reasonably calculated to enable her to make progress appropriate in light of her circumstances. (See Endrew F., supra - emphasis added)

The IEP also indicates that the Parent agreed with the DOE’s recommendations.

In relevant part, the May 29, 2019 IEP states the following:

The DOE offered the student services in a “special class” on a 12-month basis.

(D-1) The IEP team considered a Special Class in a community school 12:1 and a Special Class in a specialized school 6:1+1 but rejected these considerations because:

“ requires an individual educational program because of her unique needs due to her classification of Hearing Impairment. The IEP team was in agreement that this classification is most appropriate as it is affecting her the most in the academic setting, however speech and language as well as 's physical abilities were of noted concern by the team as well.” (Id.)

The IEP also identifies the student’s strengths and deficits and provides goals designed to address those deficits. (T-38-45 and D-1, reflecting the findings and recommendations in D-4, D-5, D-6, D-7, D-8 & D-10) The IEP team did discuss the Parent’s assertion that the student requires support from a 1:1: paraprofessional, but ultimately did not believe that the student required that to perform in class or interact with peers. (T-80)

Finally, the record supports a finding that the May 29, 2019 IEP could have been implemented by the DOE. The DOE “ ” supervisor testified that if the Parent had accepted the recommended placement, the student would have been placed in a K-1

12:1:1 class, in which the head teacher has a Master’s degree in deaf education and early childhood education and the teachers, who have Deaf and Hard of Hearing licenses, are also trained to modify and differentiate instruction for students. (T-177-80 & 200-201) The academic classes are taught by classroom teachers who are licensed special education teachers. (T-191-2)

For all of the reason stated above, I find that the DOE did offer the student a FAPE for the 2019-2020 school year, for which the Parent is seeking relief. Having so found, the necessary inquiry is at an end and I need not determine whether the student’s private school was an appropriate placement or if equitable considerations would bar an award on behalf of the Parent.

NOW therefore, it is hereby

ORDERED that having found that the DOE did offer the student a FAPE, the Parent’s request for relief must be denied; 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

DATED: August 20, 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)

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date DOE Representative DOE 11/05/19 02/26/20 04/23/20 (T) DOE Representative DOE 11/05/19 Attorney DOE 02/26/20

School Psychologist DOE 11/05/19 Audiologist DOE 02/26/20 Supv. - Hearing Services DOE 02/26/20 Attorney PARENT 11/05/19 02/26/20 04/23/20 (T)

Mother PARENT 11/05/19 02/26/20 04/23/20 (T)

Physical Therapist PARENT 04/23/20 (T) S & L Patholohist PARENT 04/23/20 (T) Parents’ Post-Hearing Brief

Student’s Name:

Data of Birth:

Hearing Requested By: — Parents

Date of Hearing: 11/5/2019, 2/26/2020, — District

4/23/2020 — District

Actual Record Close Date: — District

Hearing Officer: Edgar De Leon, Esq. — District

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 5, 2019

FOR THE STUDENT

, Attorney

, Mother

FOR THE DEPARTMENT

, DOE Impartial Hearing Representative

, DOE Psychologist

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 26, 2020

FOR THE STUDENT

, Attorney

, Mother

FOR THE DEPARTMENT

, DOE Impartial Hearing Representative

, DOE Audiologist

, DOE Supervisor DHH

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 23, 2020

FOR THE STUDENT

, Attorney

, Mother

, PT

, SLP, TSSLD

FOR THE DEPARTMENT

, DOE Impartial Hearing Representative

PRELIMINARY STATEMENT

This post-hearing brief is respectfully submitted on behalf of and her parents, and Drew , in support of their claims for declaratory, reimbursement, and prospective funding relief for ’s 2019-2020 school year beginning July 1, 2019. As to Prong I, the evidence establishes that the New York City Department of Education (DOE) failed to provide with a FAPE for the 2019-2020 school year. For Prong II, ’s educational program at in conjunction with her additional based services is “reasonably calculated” within the meaning of the established, Second Circuit standard. As to Prong III, equitable considerations fully support the relief that ’s parents are seeking. For the 2019-2020 school year, the relief sought is tuition and costs at ; up to three (3) 30 minute sessions per week of home and community-based PT; up to two (2) 30 minute sessions per week of home and community-based Speech and Language therapy; and one

(1) hour per week of Hearing Education Services ( ). The parents respectfully withdraw their request for reimbursement for the costs of a neuropsychological evaluation.

RELEVANT BACKGROUND

is now . She has global delays as a result of a mitochondrial disorder, including serious cognitive impairment, motor delays, difficulty ambulating, balance issues, hearing loss, expressive and receptive language impairment, self-direction, attentional issues, and socialization delays. These delays impact ’s communication, socialization, behavior, learning, participation in the community, and overall development (including activities of daily living, including using the toilet independently).

was

She qualified for Early Intervention (EI) and received OT and PT at 6 months old. She attended the at 2 years old, a state funded Early Intervention pre-school. She continued to receive OT, PT, Speech and Special Instruction throughout EI. (See Ex. T).

At 3 years old was late-identified with sensorineural hearing loss. In January 2018 received a cochlear implant on the left ear. She wears a hearing aid in her right ear. She is considered “bi-modal.” During the process of moving on from EI to the NYC DOE’s preschool process (CPSE), the DOE recommended for ’s parents to look at the a state-approved preschool that uses the Auditory Oral methodology. ’s parents visited the multiple times, going on a parent tour and then with and her identical sister . sat in the classroom for an in-person “interview” within the self-contained classroom. All of the students had some sort of hearing device. After spending a great deal of time within the classroom and speaking with the director of the school on multiple occasions, it was determined that was not an appropriate fit for the school. The explained that ’s needs were too great and she required too much support, so the school did not offer her a spot. was able to attend The for pre-school (the 2017-2018 and 2018-2019 school years). (See Ex. T).

THE 2019-2020 SCHOOL YEAR

The DOE Failed to Offer a FAPE and Has Not Met It’s Prong I Burden

On May 29, 2019 the DOE held ’s “turning 5” IEP meeting, transitioning her from the CPSE into the DOE’s school age CSE. Prior to this meeting, ’s mother forwarded multiple progress reports and a Psychological Evaluation from to , the DOE psychologist who was leading the IEP meeting. Over one month prior to the IEP meeting, ’s mother participated in a social history interview on April 4, 2019. The DOE social worker, , gave flyer from the at that appointment and told that it was an auditory oral school and that should call the school to set up a tour and look at it. This same flyer was given to at the May 29, 2019 IEP meeting.

At the May 29, 2019 IEP meeting, it was clear from the start that unfortunately the DOE had seen ’s audiology reports and automatically determined that she should be grouped with certain other students with hearing loss and recommended for the auditory oral teaching program simply based on the fact that she had hearing loss. may mean well, but her testimony lacked credibility at many turns. She testified that ’s disability classification was chosen because it was determined that it was “the most severe and that was impacting her the most in the school setting” and that everyone was in agreement and no one objected. T 39. However, later in her direct testimony she stated that she “did not recall if” anyone objected to the classification. T 51. She testified on direct that she was not familiar with the recommended school ( @ ) and she did not, or “would not have” said that the hearing impairment classification was needed in order for that school to be recommended. T. 51. When the IHO asked her to clarify, she stated “I don’t recall, so – is more familiar with the school…It’s possible she said things that they may require, but I don’t recall her specifically saying that you had to heave that classification.” T 52. On cross examination when asked about this issue, at first answered with what she discusses at “all” of her IEP meetings, and then when asked directly if stated that the classification was needed, she “did not recall” again. Id.

stated multiple times that the recommended IEP and program were appropriate for and that “based on that data…it seemed to be a good fit.” T. 72. However, when confronted with ’s testing and report, she admitted that she did not disagree with anything in his report and that the DOE did not do any of its own testing. T. 73.

’s psychological report (Ex. 5) made the following clinical findings and recommendations for :

* is not currently toilet trained.

* ’s mobility was slow and she required prompting by the teacher to move to the carpet and to transition to the next activity and needed her teacher to break down the direction of the next task (during the school observation).

* Her processing speed is significantly impaired and she struggled to complete a task that required more independence and involved less examiner facilitation.

clearly requires special education supports to address these challenges.

* She demonstrated signs of impulsivity and distractibility requiring redirection to attend and to instructions and tasks. She requires continued supports to address her attention difficulties in order to foster her availability for learning.

Importantly, attentional weakness were observed with the context of a highly structured 2:1 (testing) setting and thus distractibility will be exacerbated in a classroom setting. Given such variability in attention and distractibility, clearly requires a small and appropriate educational setting with sufficient special education supports. She requires intensive remediation to prevent regression.

* ’s mother reports that she engages in behaviors that are odd, has difficulty sustaining attention, and struggles to perform simple daily tasks in a safe manner. She reportedly displays disruptive behaviors and struggles to act in a social acceptable manner.

* presents with significant concerns with respect to communication, socialization, and daily living skills that contribute to adaptive functioning.

* While has made progress, all of her skills remain well below the expected level when compared to same-age peers. Intensive intervention is of supreme important; requires placement in a small, supportive full-time special education class within a small special education school that can address her behavioral, learning, and social profile. requires substantial interventions and services in order to function across all domains of daily living. In order for her to make progress, she requires a highly structured full-time educational program with a strong behavioral plan that is administered by a highly trained special educator. She requires the availability of 1: teaching to target her areas of deficit while capitalizing on her areas of strength. Without such support it is unlikely that will make appropriate progress and will instead likely regress.

testified that she had no reason to disagree with anything in this report, and she testified that she did not even know if the teacher of the program she recommended was a special education teacher. T. 62-64. She testified that she “did not recall” asking if the class was taught by a special education teacher. Id. , the DOE audiologist who participated in the IEP meeting, and who forwarded the flyer to in advance of the IEP meeting, and who described as the person who knew most about the recommended program, testified that she did not even know if the teacher of the recommended program and placement was a special education teacher. T. 162.

Although all of those who actually met and worked with her recommended that needed 1:1 teaching support throughout the day, the DOE did not even recommend a 1:1 paraprofessional for . Another example of not directly answering a simple question was when she was asked on direct examination if she told the parent that she needed to ask a supervisor in order to give a paraprofessional to . T. 49. answered,

“Generally, if I am not sure of an answer, I would state that I would need to ask my supervisor, but in this case, a paraprofessional is given for behavior or for crisis for health.” Id. When asked on cross if she discussed the possibility for having a one-to-one para to help with ADL skills or specifically for using the bathroom in a safe and sanitary manner, she stated that “it was discussed, but it was not provided on the IEP.” T. 78-9. She “did not recall” whether she told that she would check with her supervisor about the paraprofessional recommendation. T. 79. She cavalierly stated that her impression from the many reports that state that requires 1:1 support throughout the day, was that “benefits” from it, but she does not “need” it. T. 80. However, she then acknowledged that in so many reports, including the DOE’s own classroom observation (which states that was observed to have a toileting accident, require assistance from her OT to climb the stairs, and was distracted in the classroom) that often needed 1:1 support or instruction. T. 79 -83, Ex. 4, G. Furthermore, could not point to any goals that addressed ’s need for behavioral support and acknowledged that none of the goals contained short term objectives. T. 86. did not recall any discussion regarding toileting period, and also did not recall discussing a paraprofessional. T 121, 123. However, , who is not a teacher and has never taught in any DOE schools, and has only observed the recommended program via tours, stated that ’s IEP did not need to address the fact that she was not fully toilet trained as of May 29, 2019 because there was “a lot of time before the next school year began.” T. 128. When asked multiple follow up questions about whether the recommended program accepted children who were not fully toilet trained she was not able to answer. Id. admitted that the recommended program is not recommended for children with serious cognitive impairments. T.

141. She testified that “it depends on what the dominant challenge is for the child. Can the child benefit from an auditory oral program, or does the child need a more structured methodology, smaller class, more structured methodology.” Id.

The DOE did not call any teachers from the recommended program but instead called , a supervisor of the auditory oral programs. She did not participate in the IEP meeting for and has never observed or evaluated . Although she ironically is not herself a teacher, she admitted that a teacher of the deaf or hard of hearing (the teachers in the recommended program) is different than a “special education teacher” and that, “a master's of deaf education does not train teachers to work with kids with further disabilities, other than hearing.” T. 184. The school houses grades K-5 and has three floors, with the recommended class for , a student with well documented gross motor and ambulation issues, on the third floor. T. 187. All three of the 12 classes eat lunch together in the building’s cafeteria and go on line and bring their trays back to the table. T. 188. There is no bathroom attached to the recommended classroom and the classroom para escorts the children into the hallway but does not provide actual toileting assistance. 193-5. When asked about the difference between the students who are appropriate for the D. 75 auditory oral program and students with more serious cognitive delays, she testified, “the cognitive disability goes far beyond, more to do with their hearing loss. So they need a more specialized trained person to work with them, whereas the classroom teacher is more specialized to work with someone who has a hearing loss.” T. 197.

In fact, three of the parents’ witnesses had experience or familiarity with the DOE’s recommended program and had complementary things to say about it. However, all of them unequivocally testified that this program was not at all appropriate for .

testified to the following regarding the DOE’s recommended program in his affidavit of direct testimony.

Regarding the DOE’s recommended program, I have had the occasion to visit the DOE’s hearing impaired classes at School and other locations, and I have sent children to those kinds of programs over the years when appropriate. I think there are a lot of good programs for children throughout , and some children do well with the auditory oral method that they use in these classes. However, I can definitely state without equivocation that this program is completely inappropriate for . Even in a class of eight, in a full-time special education school, she was not accessing and making the progress that she needed to, which is why she was moved to a class of 6 for the 2019-2020 school year when she began kindergarten.

This assessment was shared with the therapist and educators working with at the time as well. Without a doubt there was nothing that I saw, read, or could even fathom that would warrant a less restrictive setting, or a decrease in services or intensity of support. Also, there is the fact that she was transitioning into kindergarten. Based on my knowledge of the recommended program and everything I know about , it was not an appropriate recommendation.

, SLP, TDDLD, testified to the following regarding the DOE’s recommended program in her affidavit of direct testimony.

I am familiar with the 12:1:1 auditory oral program within the NYC DOE generally, and also specifically at the school location. At the where I taught and supervised for 6 years, the children were aged zero to five, and many of our children would graduate from and attend the program. In fact, one of my colleagues at the became a teacher at the program and she was the teacher who gave the tour when I accompanied ’s mother on her visit to the school. I knew some staff there and I recognized some of the students as alumni of the . I was and am well versed in the auditory oral 12:1:1 program at . Regarding the auditory oral teaching methodology, children with hearing loss or deafness are on a spectrum. There is American Sign Language classrooms on the one end that is a fully visual form of communication and learning. In the middle of the spectrum are total communication classrooms, which employs a combination of spoken language and ASL. On the opposite end of the spectrum would be an auditory-oral classroom, where the focus is on listening and spoken language. Visuals are not a focus, or a priority for auditory-oral classrooms as children use their listening to learn.

However, the physical environment was one of the first things that jumped out at me, as it would literally have been impossible for to navigate. There are several staircases to get to the lunchroom and classroom. There is an elevator at the end of the hall, but it would take a great deal of time and assistance to enter the building, get to the elevator and then move to the different locations she would need to go to throughout the day. The bathrooms are in the hallways and are shared with the mainstream school. There were no adaptive accommodations in the bathroom for to help herself, and she typically needs an adult to assist her. They said they went on multiple field trips during the summer with typically one teacher and one paraprofessional for the group of 12 students and they would be using public transportation. This again would not be possible given 's physical delays; it would be extremely unsafe to go on such a trip with so few adults. Speech mandates were often in larger groups in a separate part of the classroom. It could be noisy and distracting for who still receives the majority of her speech services at school in a therapist office. The student population, speaking from my firsthand experience of auditory oral classrooms and the type of student who goes there from the and other places, are children whose hearing loss is often later identified, so they are later amplified. They may end up in the auditory oral school-aged program because they are not quite ready to enter the mainstream, but the goal of an auditory oral classroom is for them to ultimately enter the mainstream and that was what was being told to us on the tour. They also told us the students are doing mainstream art, and they combine with the mainstream classrooms for art and science I believe. This also struck me as something that would be difficult for to do. It was evident to me based on my observations and our conversations with the teacher that language delay due to hearing loss is the primary diagnosis and need - language delay secondary to hearing loss, of the students they serve. I could see that these kids were otherwise typically developing children with hearing loss. would not have been on par with these peers whatsoever in terms of her cognition and their social and play skills. They told us they were expected to be independent in their associative social play, and that there wasn't scaffolding which is something that required and still requires. They were expected to be writing and writing sentences by the end of the year, which is still something that we're not expecting to be able to do currently due to where her cognitive and physical delays are. We saw clusters of desks where the children were expected to work in groups and work independently. There was an overall degree of independence that these children were supposed to have to be able to interact with their peers to accomplish a task in these group settings that unfortunately just cannot do. The students were mixed in age; Kindergarten, 1st, and 2nd graders within one classroom. There were many kids already reading or learning to read, and it would have been expected that or any child in that classroom would be on the pathway as well.

Throughout the tour, and I described who is and explained 's skills.

We indicated that 's primary diagnosis is not her hearing loss, it is her global delays. When we discussed this and the population within the auditory oral classroom, the teacher explained that when a student’s primary diagnosis is not their hearing loss, when there is a more significant diagnosis, those children are counseled out of the program. The goal of an auditory-oral classroom is to get them into their least restrictive environment and into the mainstream with their peers. I would have loved if was on that path, but she is not. If she was an appropriate match for the program I would have gladly told her parents to send her there.

However, the recommended program was entirely and completely inappropriate for and would not meet her many needs across multiple domains. In fact, back when transitioned out of EI into the DOE CPSE, the CPSE had asked ’s parents to visit the .

went for a tour and observation there and the rejected as not appropriate for the because of her global delays.

, provider, testified to the following regarding the DOE’s recommended program in her affidavit of direct testimony.

I am familiar with the NYC DOE’s auditory oral program based on my work in the field, my conversations with people who work there (including with the teacher of the proposed class for ), and also the open house I attended there. The auditory oral program at is similar to the one used at the in the self-contained classrooms, which just have students with hearing loss. In the program, their primary classification, and the only children that make up the population, are students with hearing loss. When was entering pre-school, the CPSE asked her parents to look at the , but the did not offer a spot after they went through the process. I agreed with the ’s decision, because due to ’s complexity of needs, that program would have been able to meet the needs of a child who has such a significant cognitive impairment, in addition to a child who has hearing loss. As for the class that was recommended for at the location for the 2019-202 school year, I know the teacher of the class, , as we worked at the together, and we also went to graduate school together. We obtained the same licenses – early childhood education and deaf and hard of hearing education. She does not have a special education teaching license. As someone who has a background in both special education and as a teacher of the hard of hearing, there is a big difference in training and intention. A special education teacher is skilled to understand a large variety of disabilities, including cognitive impairments. They are focused on adapting instruction and the curriculum to really target all developmental domains. Whereas a teacher of the deaf and hard of hearing is specialized in that auditory system. They are focused on instruction through developing and building listening and spoken language. Again, I have been to the 12:1:1 auditory oral program at and I know is a great teacher. If was a child who presented with hearing loss only, or as her primary disability, I think it might have been a good option, but sadly this is not the case. I have worked with many students over the years, especially at , who have ended up attending the program at , but is a child with a primary disability of being cognitively impaired and these serious global issues would have been untreated there. really needs to learn as a child with a variety of different needs, in addition to having hearing loss, and gaining access through her hearing aid and her cochlear implant. Unfortunately I could not recommend the 12:1:1 oral auditory program for , as it is completely and utterly inappropriate for her.

’s mother, testified to the following regarding the DOE’s recommended program in her affidavit of direct testimony.

On June 7, 2019 I visited along with , one of ’s Speech

Therapists. I came into the tour open and hopeful that there could be a potential public school that could be a fit for , especially because said it would be. I myself am a product of public schools and have always wanted appropriate public school placements for my daughters, like when they attended school through EI. We were greeted in the administrative offices and given the same flyer I had already received in the IEP meeting and social history appointment. We were introduced to and she led the tour for us. My first impression was the massive size of the school. There were multiple floors with wide hallways and lockers lining the halls. We were led up 3 huge flights of stairs to ’s classroom.

described her classroom as a 12:1:1 that consisted of Kindergarten-2nd graders.

Each child in her class had a hearing impairment classification. In fact, actually knew some of the kids in the class from her time at the when she used to work there. was lovely and gave us a tour. She showed us her classroom, the therapy rooms, lunchroom and bathrooms. We were told that her classroom interacts with the general education school ( ) that is attached to . She said they have Field Day, recess,

Art and Music with the general education students and the kids really enjoy it. They also take field trips to the local water park, union square market, museums and movies. They take public transportation to get there with just one teacher and one paraprofessional. was proud when she spoke of the children in her classroom, showing us their work. She made a note to tell us that all the kids were reading and writing, all had homework every night and all of their play was independent. When having a conversation about children that may need more support in the classroom, she said those kids were “counseled out.” I also asked her about the bathroom and where it was located. She said the bathroom is in the hallway and the children go independently. All the children were fully potty trained and did not require assistance in the bathroom, she actually was a bit taken aback by the bathroom conversation since that’s not something she handles with the kids in her program. We then walked down the hallway and down 4 huge flights of stairs to get to the basement where the cafeteria is located. Each child sits at a long cafeteria table with an attached bench, typically how I did when I went to public school. There are about 6 classes all eating together and the kids are required to get their lunch and hold a tray to then sit down and eat independently. commented saying all her children in her class are given breakfast and lunch and eat independently. We had a frank conversation once she completed the tour and I asked her if she was a Special Education Teacher. She clearly stated she was not. Unfortunately it was very clear that this was not the right placement for . ’s needs are so complex and far greater than those kids in that 12:1:1 classroom – it is like two different planets. Her deficits are so much greater than just hearing loss and that was evident when visiting the classroom and seeing the other kids. They were able to sit at tables in typical chairs without adaptive equipment and listen to a lecture-like lesson from a “cluster” teacher for 40 minutes. would be completely lost without the individual support she needs to learn and the gap between her and the rest of the children I observed is not even comparable. Physically her needs are also too complex. She is not able to walk independently down a flight of steps without holding an adult’s hand. She also doesn't have the stamina to walk up and down 4 flights of stairs multiple times a day, and if she were to use an elevator, she would need an adult with her of course. She is also not able to use the bathroom independently and has frequent accidents. She is too short and petite to even lift herself up on the toilet and would not be able to balance once on the toilet. She is also not able to wipe her bottom if she had a bowel movement. She requires adult support as well as visual support to help her in the bathroom and to continue learning how to identify “when” she has to go. She would not be able to safely or practically participate in the many trips and outings they go on either. The overall program seems great for the kids that are appropriate for it, but it is not equipped to meet

’s needs.

Regarding the DOE’s goals, , ’s PT provider testified in her direct testimony affidavit that, “Regarding the goals that are named “physical,” there are no actual short-term goals to address an annual goal. For example, " will improve her motor planning skills so that she can navigate her environment more efficiently," How is this to be determined? How is she achieving this? The goal does not state what we are looking at motor planning wise. The goals are so broad that I honestly do not know how they are actually addressing physical therapy. Three of these “physical” goals seem to be more occupational therapy oriented, addressing more fine motor, leaving just one goal that could be called a physical therapy goal, and no short-term goals. has so many other areas to focus on including motor planning. There is not one goal that discussed her physical body. These

“physical goals” are too vague for a child that has so many smaller issues to get to the bigger picture and they are not appropriate for .” (See Ex. Q). Similarly, , ’s SLP testified, “I have also reviewed the DOE May 29, 2019 IEP document for and the speech goals. The goals are not reflective of all of ’s needs, only addressing a small facet. There are very few receptive language goals, limited to linguistic concepts, but not in terms of her comprehension of books or longer conversations. As for pragmatics, which is one of her greatest needs, I only saw one goal about initiation with peers. The majority of the speech goals were focused on her grammar. Additionally, there are no short-term objectives. Typically speech therapists rely on short-term objectives to know more specifically what targets to work on and for the parents to know how they're achieving those smaller goals. They are essential for .” (See Ex. R).

Legal Analysis

To provide a FAPE to a child, a school district must comply with IDEA procedural requirements, and substantively, the IEP must be “reasonably calculated” to enable the child to receive meaningful educational benefits. Newington Bd. of Educ., 546 F.3d 111 (2d Cir. 2008); Walczak v. Florida U.F.S.D., 142 F.3d. 119 (2d Cir. 1998). The District bears the burden of proof with respect to its FAPE duties. See N.Y. Educ. Law § 4404(1)(c). The applicable

“reasonably calculated” test is a “prospective” analysis. R.E. v. New York City Dep’t of Educ., 694 F.3d 167, 175 (2d Cir. 2012), cert. denied, 133 S. Ct. 2802 (2013). The District is thus not permitted to rehabilitate or amend a deficient IEP by way of after-the-fact, retrospective testimony regarding programs and services that do not appear in the IEP. Id. at 186.

In C.F. the Second Circuit held that, where a student requires 1:1 instruction, “the failure to consider a 1:1 classroom resulted in the denial of a [FAPE].” 746 F.3d at 81. See also C.L. v.

New York City Dep’t of Educ., 2013 U.S. Dist. LEXIS 3474 (S.D.N.Y. Jan. 2, 2013), aff’d 552

Fed. App’x 81 (2d Cir. 2014) (Summary Order); P.L. v. New York City Dep’t of Educ., 56

F.Supp. 3d 147 (E.D.N.Y. 2014). In S.Y. v. New York City Department of Education, the district court reviewed an IHO’s decision that found that, where the DOE previously recommended a 1:1 paraprofessional for a student and then fails to introduce any evidence indicating that the student’s needs have “so greatly progressed as to eliminate the need for a one-to-one paraprofessional,” the DOE has failed to provide the student with a FAPE. 2016 U.S. Dist.

LEXIS 139277 at *8. On appeal the district court reasoned that the CSE failed “to memorialize how it reached the terms of the IEPs,” resulting in a deprivation of FAPE. Id. at *40.

Here, the DOE engaged in impermissible pre-determination as evidenced by the DOE’s social worker’s recommendation for the parent to look into the auditory oral program at

1.5 months prior to the May 29, 2019 IEP meeting. Clearly, someone had provided Ms. Lugo with that flyer prior to the social history appointment. The DOE had already made up its mind.

See Schaffer v. Weast, 546 U.S. 49, 53 (2005); Winkelman v. Parma City School District, 550 U.S. 516, 524 (2007); R.L. v. Miami-Dade Cnty. Sch. Dist., 757 F.3d 1173, 1188 (11th Cir. 2014)

(impermissible predetermination occurs when a school district “makes educational decisions too early in the planning process, in a way that deprives the parents of a meaningful opportunity to fully participate as equal members of the IEP team”); see also 20 U.S.C. §§ 1414(d)(1)(B),

1414(d)(3)(A)(ii), 1414(d)(4)(A), 1414(e). T.K., 810 F.3d at 877; E.H., 2016 U.S. Dist. LEXIS

18537 at *27-*28; Deal, 392 F.3d at 858 (finding predetermination where the district “did not have open minds and were not willing to consider” a particular service the parents thought the child needed to benefit from his education). “The CSE may consider and reject the Parent’s point of view, but it may not deprive the Parent of meaningful participation by refusing to consider the Parent’s concerns.” E.H., 2016 U.S. Dist. LEXIS 18537 at *23. The record is devoid of any testimony that shows that or actually wrestled with, and/or engaged in any meaningful discussion with the parent or from regarding the references to ’s nuanced and global delays in the many reports provided by the parent, or the parent’s and ’ attempts to discuss them during the IEP meeting. credibly testified that she shared information about 's global deficits, and the needs that she has in order for her learn and be independent in a classroom, which were also outlined in the end of year report that the IEP team had from as well. At the time of the IEP meeting, she explained that required a significant amount of one-to-one support to navigate the classroom, and to be able to participate in activities. She really struggled with her ability to understand content that was being produced and being demonstrated and shared with her, and so everything had to be broken down and individualized in a very small group. She also needed consistent support to physically navigate the classroom and the school environment, both due to her cognitive rigidity, her understanding, as well as her safety due to her movements. At that time she was using very minimal language to communicate, often one to two word utterances, and it was very hard for her to identify what her preferences were beyond just saying, no. In her affidavit of direct testimony stated, “ does have a hearing impairment and she utilizes a cochlear implant as well as a hearing aid. However, the extent to which the district representative and the audiologist were laser focused on her hearing impairment right from the start of the meeting, and then continuously throughout, despite all of the statements and I were making about the various reports the team had before them regarding the very broad and serious range of global delays that has was very frustrating. I have participated in many IEP meetings over the years, and these meetings were perhaps the most frustrating of all. It was so clear to me from the first few minutes of the meeting that the district representative and the audiologist had already determined what classification they needed for and the program that they were going to recommend. Although and I shared concerns about her global deficits, including her physical needs, her cognitive challenges, executive functioning deficits, and her significant language challenges, the DOE really used the hearing impairment solely to identify what placement they thought would have for the upcoming school year.

’s hearing impairment is an important part of the puzzle for , but we tried to make them understand that it is not her primary disability, especially during the brief discussion regarding classification. They did discuss a particular school that works with children with hearing loss in a school in , and they had really encouraged to look into that school for because of her hearing. I recall discussion between the DOE participants with questions about what that school would need on the IEP in order for to have the support she needs for when attending that specific program. I remember 's mom identifying her concerns and asking about the various ages of students in the class, and having multiple disabilities beyond just a hearing impairment. The DOE responded with general statements saying that the school was for children with hearing impairments and they would meet 's needs, and they did not explain why or how the school would meet ’s needs. They suggested that the parents visit the program.” (See. Ex. O).

The record is devoid of any testimonial or documentary evidence that demonstrates that the IEP and recommended program and placement are uniquely tailored to meet ’s very complex needs. ’s mother testified in her affidavit of direct testimony that described the program “generally” and that she asked her questions regarding the school, specifically wanting to know if it was a Special Education teacher leading the classroom as well as the type of children that attended the school. answered her questions by telling her it was a Teacher of the Deaf. She did not answer the questions directly. When describing the students she made a note to say that they are verbal with no behavioral challenges and many come from The . She stated, “At the point in the IEP meeting when was given her classification and school recommendation, I felt very much backed into a corner though. I made it very clear that has many complex needs and that her hearing impairment, while not insignificant and there is no denying she is hearing impaired, is only one piece to who is and the extent of her special needs. She is extremely complex and hearing loss is not what defines her, nor is it her primary need. During this time, I did not feel heard during the IEP process since and seemed to have already made up their minds before the meeting even began. In response to some of my concerns, I was told I had due process rights if I disagreed. A few days after the IEP meeting on the morning of May

31st, I got a call from letting me know the request for a paraprofessional for was denied by her supervisor.”

Even after the parents expressed their concerns in their written communications to the DOE on June 17, 2019 (Ex. B), the DOE did nothing to remedy the issues, and did not reconvene another IEP meeting or make a different offer of placement. In the instant matter, the DOE procedurally and substantively failed to meet its Prong I burden.

’s Educational Program Including Placement at in Conjunction with Her Services and Additional Speech and Physical Therapy Services Are

Reasonably Calculated to Provide Her With Meaningful Educational Benefit

The Parent bears the burden of showing that their unilateral program is appropriate and meets the student’s special education needs. Burlington, 471 U.S. at 370. The private school need not be approved by the state educational agency to provide instruction to children with disabilities. Florence County v. Carter, 510 U.S. 7 (1993) It is also not required that the private school employ certified special education teachers or have its own IEP for the student. (SRO No.

94-20) The burden that parents must meet to satisfy the Prong II standard is less stringent and more relaxed than the Prong I standard to which a school district must adhere to in offering a child a FAPE. R.E. v. New York City Dep’t of Educ., 694 F.3d 167, 179 (2d Cir. 2012); Frank G.

v. Bd. of Educ., 459 F.3d 356, 264 (2d Cir. 2006) (If an IEP is determined to be inadequate, parents may provide evidence that the child made actual progress at their chosen . . . placement to support the adequacy of that placement . . . . The test is that it is appropriate, not that it is perfect). The Parents need only demonstrate that the requested services are specially designed to meet the unique needs of the student. (See Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at

364-65).

Applying this standard, the preponderance of the evidence in this record amply supports a finding that ’s program at the , in conjunction with her supplemental services, constitute an appropriate special education program and has provided her with meaningful educational benefit. The evidence amply establishes that the program at school, with the services, and Speech and PT services is what requires to make educational progress and that the services she receives are specially designed to meet her very unique needs.

In addition to the independent recommendations of (Ex. 5) and the recommendations in the reports from , ’s PT, , ’s provider, , and her additional Speech provider, , Witness testimony and progress reports unequivocally demonstrate that has been making meaningful progress in her educational program.

testified that, “ is currently working on literacy skills, early math skills, language development, listening comprehension, and is starting to learn some sight words this year. In terms of her literacy development, has a much better understanding of letters and that they have sounds. She also has an emerging understanding that these letters and sounds make up words that she can find in a book that tells a story, which is very exciting because she is starting to recognize finding letters in different print. She's excited to participate in these learning activities, which was something that was really challenging for her in the larger class of 8 last year, where she wasn't able to attend to this kind of information. Now she is more motivated to participate, she's proud of herself. In terms of listening comprehension, she is able to answer more questions. She's attending for longer periods of time during read aloud activities. When given binary choices, when looking at the visuals. In math, her number sense is definitely growing. She has a larger understanding of what numbers are, and quantities. She now understands that zero means nothing. She has one-to-one correspondence to about ten. She can rote count above that. 25 Her language skills have also really flourished this year. So whereas last year she was speaking in one to two words most frequently, now we're hearing three to four words utterances, sometimes sentences, even, to express herself. Her articulation is still really impacted and it often takes a familiar listener to be able to understand what she's saying.

continues to struggle in her social emotional development, her attention is extremely poor as well as her ideation skills. When it's playtime, she often wants to be with her classmates and wants to initiate, but beyond that first initiation of like want to play, or like play airplane, let's play airplane, she needs a lot of scaffolding. We provide her with something called play plans, which are steps of how to play a scenario. And when teachers are engaging in the play plan with her, and her peers, she is able to sustain that interaction and she's able to follow the play plan and play amongst her classmates. However, when kind of left to her own devices she really has fleeting attention and doesn't know how to interact with materials on her own. So if she were to pick something, she will often pick drawings, or Play-Doh, when she does that she can last maybe last a minute or two before getting distracted. She continues to need a lot of adult support to engage in materials, as well as interact with her peers appropriately. is getting individualized support for most of her school day, getting one-to-one support or individualized attention. That may look like a teacher giving her nonverbal responses to help increase her independence. But in terms of the times that she is actually more independent and not working one-on-one are times that might be more like a music class, or movement class. However, within those periods she is getting reminders or given extra support to take a turn, also. She still requires a significant amount of adult support from the time she walks into the building until the time she leaves at the end of the day. She still she is not independent in navigating the building, although there has been growth. The classroom she has increased her independence greatly. Her current classroom in a 6:1:2 utilizes a very structured teaching approach, where each student has their own schedule, so has a color coded schedule and all of her materials are the color and that helps her identify her things that belong to her. Each of the pictures on her schedule help her find the location of the next activity and that has been really supportive for her. The teachers use highly motivating materials at the start of each activity, so is very excited to get to that activity, whether it be a song, or a preferred item, she is able to now transition into the room more independently. However, when leaving the classroom she is often the student who is in the back of the line, trailing behind with an adult next to her, because she might have gotten distracted on the way, or needs reminders. She needs more support going up and down the short stairs we have, more adult monitoring, due to her motor challenges. She does use a sided chair so she doesn't fall over.”

testified to the following: “My specialty within the field is in

Auditory-Verbal Therapy, which is a form of therapy for children with hearing loss, developing their listening skills to achieve spoken language. In AVT we are strengthening the auditory pathway to develop their language. When was first implanted, I first worked on foundational listening skills. For example, new listeners may not discriminate the difference between knocking on a door and someone's voice. moved through these foundational markers into broader skills such as discriminating high pitched voices and low pitch voices. Early listening training is essential when first getting a cochlear implant or when first receiving amplification. Once you have foundational listening skills, language acquisition may begin and often happens in the same order as typical language acquisition (e.g. common nouns, frequently used verbs to attain desired objects and actions, followed by less familiar vocabulary and words heard less often). There are certain cuing techniques for developing language in AVT, such as acoustically highlighting a word like "is” by making sure she can hear it accurately when it's embedded in a sentence. In contrast, the speech and language therapists at the are using a multisensory approach to develop articulation and language. For instance, if they are trying to target that word "is," they might be giving some visual and tactile cueing, so that she's feeling the word "is" when a sentence is said, or maybe a visual cue that they provide to her to make sure she is using that word "is.” is a visual learner, and benefits from that multisensory approach in speech therapy and multisensory approach to learning at school.

requires my additional techniques due to her unique presentation as a child will a cognitive impairment and global delays who also happens to have hearing loss. At school, they tackle her more global speech and language delays such as her articulation with an oral motor skills approach. She needs their PROMPT trained therapists to achieve her articulation goals. They also work on her pragmatic skills, which are one of the largest parts of her increasing conversational turns, responding contingently to conversations, speaking with peers, and initiating with peers.”

testified, “At this point I am very integrated into the classroom when I am with at in conjunction with her special education teacher. We present all the information to through auditory means only, which is aligned also with 's approach to educating a child with special needs. We present the information so has time to listen, to take it in, to process, to have it go through those behind the scenes channels processing through a cochlear implant, or being amplified through a hearing aid. If she has heard it, we still may need to use another strategy and the special education teacher steps in to present information with visual supplementation, which relies so heavily on, paired with a verbal directive. She needs systematic approaches, because as a child with a cognitive impairment and hearing loss there's so much playing into her access and the way she can process the information.

She needs tactile cuing and benefits from acoustic highlighting, so we really emphasize what our purpose of the verbal message is, but it's broken down consistently throughout the whole day in incredibly small chunks of information. We're obviously all working on increasing her attending behaviors, but these are not attending behaviors of a child who can independently sit and perform in a setting where there is a lot of competing background noise, and everybody is learning in the same way.”

testified, “For and her unique set of needs, it is important for her to have OT in school to address fine motor and sensory processing throughout the day. She has progressed so much at this school year, and she cannot afford to be pulled out so many times during the week for PT. It is also important for her to have PT in the home and community after school, so that we can maintain structure and continue her learning. At school she has to use the bathroom, so she has to wash her hands, and she has to step on a stepstool because she's not tall enough to wash her hands. At home we can work on those discrete skills, one-on-one, where I can facilitate hand over hand, I can move her body through the movements.

She can learn how to do these skills without all the distractions of being at school. So even the walking over the pillows, climbing, stepping over obstacles, going under obstacles, these are all things that she is going to face in her learning environment. The ability to sit upright and improve core strength is critical, as she has to sit up at school. If she can't sit up at school, if she can't keep her eyes focused, looking at what she's supposed to be looking at, or if she's so worried about keeping her body up, how is she going to learn? The more we can do core strengthening, getting her body in the proper position for learning, the easier it is for her to learn.

has demonstrated a lot of progress during the 2019-2020 school year, especially with her ability to participate almost for the full 30 minutes in the session. I have seen a great increase in her endurance. She has been trying a little more to ride the scooter, trying to pedal the bicycle.

When I set it up in a safe environment, she can walk over a giant pillow without losing her balance. She can now step over a six-inch obstacle and clear both of her feet. She is starting to play more on her knees and in a crisscross position, which for her is tremendous in terms of the ability to hold her body up and stretch at certain joints that have been tighter. She has difficulty catching, but she has shown so much more improvement in throwing and her throwing distance, her accuracy, and her power.”

The documentary and testamentary evidence submitted by the Parent in this case was credible and uncontroverted. In this case, the equitable considerations amply support ’s claim for relief. ’s mother attended the IEP meeting, visited the proposed placemen, and was proactive and cooperative with the DOE. The parents shared their private reports with the DOE and have been very cooperative and open-minded to suggestions and input from the DOE and ’s providers.

For all the foregoing reasons, it is respectfully requested that the IHO make the following findings and order:

* The witnesses who testified on behalf of the Parents all testified credibly;

* The DOE failed to offer a FAPE for the 19-20 12 month school year; * ’s entire educational program and placement is “reasonably calculated” to provide her with meaningful educational benefit;

* Under Prong III, the equities support a finding in ’s favor;

* For the 2019-2020 twelve month school year, the following services and supports should be fully directly funded by the DOE:

* tuition and costs at ;

* up to three (3) 30 minute sessions per week of home- and community-based PT;

* up to two (2) 30 minute sessions per week of home- and community-based

Speech and Language therapy;

* and one (1) hour per week of Hearing Education Services ( ).

DATED: May 22, 2020

New York, New York

New York City Department of Education, Impartial Hearing Decision

Legal Analysis