NY IHO #526930: New York City... | Special Education Law

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____________________________________________ In the Matter of the Application of , a Child with a Disability, by his parent, for a Due Process Impartial Hearing,

Petitioners,

FINDINGS OF FACT

AND DECISION

-against-

NEW YORK CITY DEPARTMENT

OF EDUCATION,

Respondent. ____________________________________________

Student’s Name:

Date of Birth:

District: Department of Education of the City of New York

Hearing Requested By: Parents by notice dated July 9, 2019

Dates of Hearing: September 18, 2019 (pre-hearing conference); October 22, 2019; November 4, 2019; and November 22, 2019

Record Close Date: January 1, 2019

Hearing Officer: Leah L. Murphy, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 18,

2019 FOR A PRE-HEARING CONFERENCE

For the Student:

, Esq., Parent Attorney (via telephone)

For the District:

, Esq., Agency Attorney (via telephone)

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 22, 2019

FOR A HEARING

For the Student:

, Esq., Parent Attorney

For the District:

, Esq., Agency Attorney (via telephone)

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 4,

2019 FOR A HEARING

For the Student:

, Esq., Parent Attorney

For the District:

, Esq., Agency Attorney

, Esq. Agency Attorney

, Speech language therapist

, School Psychologist

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 22,

2019 FOR A HEARING

For the Student:

, Esq., Parent Attorney

, Parent

, Assistant Head of School

, Learning Specialist For the District:

, Esq., Agency Attorney

, Esq. Agency Attorney

DECISION AND FINDINGS OF FACT

Procedural Background

This matter was initiated by the parent’s representative by the filing of a Due Process Request on July 9, 2019. (Department of Education Exhibit 1)^[1] I was appointed as the impartial hearing officer on July 13, 2019. The student at the center of this controversy is ,a child born on , who for the 2018/2019 school year, attended the in Manhattan, a private school for students with language based learning disabilities. was unilaterally placed at the by her parents in September 2018. The dispute concerns a claim for tuition reimbursement for the for the 2018/2019 school year. The parents’ complaint asserts that the Department failed to provide with a free appropriate public education based upon two primary claims: first, that the Department failed to conduct all needed evaluations and convene a CSE meeting in a timely fashion and second, that the Department violated the student’s rights in determining that the student was ineligible for special education services. (D-1).

The hearing was held pursuant to the Individuals with Disabilities Education Improvement Act (“IDEIA”) of 2004 and the New York State Education Law. Hearings were held at the Impartial Hearing Office located at 131 Livingston Street, Brooklyn, New York. , Esq., appeared on behalf of the student and her parents.

, Esq., and , Esq., Agency Attorneys, appeared on behalf of the

Department.

Finding of Facts

According to the testimony of mother, ., the student developed normally and did not exhibit evidence of any academic difficulties until she started first grade. (R-174). attended the (

“ ”) from September 2014 for her first through fifth-grade, which ended in June 2018. No documentary evidence was presented concerning the student’s academic history. . testified that began first grade as a non-reader. made little progress in first grade. When she entered second grade she received

(“ ”) as a pull-out service with a reading specialist. She made a “little bit” of progress and the service was discontinued. . stated that continued to struggle with reading but was told by the reading specialist that was “lazy.” The characterization of as “lazy” did not comport with view of her daughter – who she described as “not a lazy child.”

. testified that through the years, as academic demands became greater

, fell behind. . stated that had a great deal of self-awareness and knew that she was not keeping pace with her peers. She became more anxious and self-conscious. would sit and stare at her homework because she could not understand what was expected. She would cry and her behavior became an issue in school.

was emotional and oppositional in school – she displayed attention seeking behaviors.

. stated that whole sense of being normal was crumbling. To assist , . stated that she sent to a private reading specialist twice a week during second grade. was enthusiastic to get the tutoring and wanted to learn. .

testified that there was very little communication with school about her functioning. There is no evidence, other than testimony, which indicates what school functioning was while at .

In the Summer of 2017, . testified that was sent for a private educational evaluation by a “ .” . sought the evaluation to get to the bottom of struggles because, even with the extra tutoring, she was still struggling in school. If a report was generated, it was not presented into evidence by the parents.

. testified that she informed the Department that had been diagnosed as dyslexic. In December 2017, . began to look for a different school option for

One of the schools she looked at was the , a private school for students with learning disabilities. . acknowledged that she had attended a prospective parent information session in December 2017. (R-160; D-14). At the same time, was brought for an “educational update’ evaluation by . (P-D). . admitted that worked for the . (R-

187). writes in her report that the “educational update” was being sought because parents were “concerned because they do not observe sufficient educational progress in decoding and sight word accuracy and automaticity, reading comprehension and written expression, despite excellent after school and in-school remediation.” (P-D).

The evaluation consisted of three test days and an observation of in her class at on April 15, 2018. On standardized testing, exhibited average functioning in an assessment of her underlying phonological abilities on the LAC-3. (P-D).

told the examiner that she does not remember the order of letters in words and does not recognize her errors when she proofreads. (P-D). Nevertheless, on a test of visual sequential memory she performed in the average range which the evaluator attributed to her use of a “verbal dimension” by whispering the letters aloud. (P-D). retained information from texts read aloud and silently. On the GORT-5, she answered oral comprehension questions: “she answered questions about specific facts and details accurately.” (P-D).

In an assessment of her reading ability measuring reading vocabulary and reading comprehension, scored in the average range. The evaluator qualified the results by stating that “[i]t is important to remember, however, that [ ] has had an unusual level of high quality, individual academic support that most students do not receive. She should outperform her peers.” (P-D). In the TOWRE2, a timed test to read familiar words accurately, she read quickly and accurately and her score was above average. (P-

D). On phonemic decoding was assessed with both the Woodcock Johnson word attack and the TOWRE2. On the Woodcock Johnson, she performed within the average range and on the TOWRE 2, a timed test with more pressure, she scored below average.

The evaluator noted that made decoding errors which were “surprising for a fifth-grade student.” (P-D). According to , this impacts fluency. fluency was assessed with the GORT-5. Her accuracy score was in the average range and she corrected many errors independently because she realized that they interfered with the meaning of the sentence. (P-D).

Overall, the evaluation concluded that “the great majority of test scores were average.” (P-D). The evaluator stated that overall scores “mask a pattern of errors that was present throughout the evaluation.” These errors reflected “intermittent failures of phonological functioning, uneven application of sound-symbol associations, and inconsistent writing mechanics.” substituted, omitted and transposed letters and inserted and omitted syllables. concluded that met criteria for diagnoses of specific learning disorder with impairment in reading and specific learning disorder with impairment in written expression. (P-D). recommended that be placed in a full-time special education placement in a small, self-contained classroom. did not testify at the hearing. Given the strained conclusions of ’s evaluation and her association with the , ’s conclusions are given little weigh.

Prior to the completion of the Educational Update, . testified that she and her husband had signed an enrollment contract for the on February 28, 2018. (P-K). . also testified that she had paid the a $5,000.00 non-refundable deposit. (P-K). On May 11, 2018, parents requested that be evaluated for a determination of eligibility for special education services. (R-191; P-A).

The enclosed ’s report and indicated that they agreed with her recommendation for a small self-contained special education setting. Prior written notice of the referral and the request for an evaluation was sent to the on May 18, 2018. (PC). The notice included a statement that written consent for the evaluation was necessary and the submitted written consent on July 19, 2018. (D-9). There was no explanation presented at the hearing for the delay between the receipt of the referral and the receipt of the parents’ consent to evaluate.

Evaluations were conducted by the Department over the summer. On July 19, 2018, a vocational interview and social history were completed. (D-11, D-12). A psycho-educational evaluation was also completed on July 25, 2019. A speech and language evaluation was conducted at the request of the Department on August 8, 2018. (D-14, D-

15). After the first CSE meeting had been scheduled, and after the sixty-day requirement to have an initial evaluation completed had passed, a classroom observation of in the was done on October 29, 2018. (D-13)

According to the SESIS log, it appears as if the initial CSE meeting was scheduled for July 30, 2018. (P-15). The log notes that the meeting had to be rescheduled because “one of the reports warrant a speech eval.” (D-15). Curiously, the entry for July 30, 2018 on the SESIS log includes the following: “Document: ineligible for Special Education Services” and “deleted draft for [ ].” (D-15). It can be reasonably inferred that someone had deemed “ineligible” even before the CSE had completed all the evaluations and the meeting had been held.

initial CSE meeting was rescheduled for October 4, 2018. (D-3). The parents informed the Department that was no longer in attendance at the so the CSE team scheduled to meet would not be responsible for the initial review. (D-15).

The parent was then called and told that the meeting was rescheduled for December 11, 2018, with the correct CSE team. (D-4; D-15)

, is a Master’s Level school psychologist who conducted psych-education evaluation testified on behalf of the Department. (R-33; D-10).

testified that cognitive abilities were assessed to be in the average range.

She demonstrated a relative weakness in working memory and visual-spatial performance but those measures were still in the average range. (R-39, 40). full scale IQ was in the average range with a score of 108 on the Wechsler Intelligence Scale for Children Fifth Edition (“WISC-V”). (R-40; D-10). All of achievement test results were in the average range. testified that based upon the student’s assessment, she would be expected to be on par with her grade level peers. (R-46)

testified that she noticed a hesitation in oral reading assessment when she was asked to read aloud. (R-47). While the score was in the average range, she displayed difficulty and repetition when reading aloud. (R-47). did affirm that reading was characterized by decoding errors and she has difficulty remembering spelling patterns. also testified that the assessment revealed a difficulty with the area of phonemic decoding. (R-57) This is consistent with what reported concerning reading fluency. concluded that the assessment revealed that had basic skills to be successful in the classroom and there was no evidence of a disability. (R-49). testified that her evaluation of academic functioning was consistent with the findings of . (R-56)

As part of the evaluation process, a social history was conducted. (D-12). The parents were interviewed for the social history and expressed their concerns. The parents indicated that they felt was not making adequate academic progress and that she “may benefit from special education.” (D-12). The parents reported that is seen by a therapist “to help her deal wih the stress and frustration she exhibited due to her academic struggles.” (R-12). The parents reported that struggles to complete her homework and getting the work done takes a long time. (D-12). The parents reported that this was the first time was being referred for an evaluation.

During the classroom observation, was observed to read clearly, fluently and with expression. (D-13). During the observation, there was no evidence of the difficulty or hesitancy noted in the academic evaluations. participated in the classroom activities, was organized and wrote legibly.

testified on behalf of the Department concerning her speech and language evaluation of the student. (R-74). The evaluation was conducted on August 8, 2018. (R-77; D-14). testified that performed average or slightly above average on the core areas being assessed for receptive and expressive speech. pragmatic speech abilities were deemed to be in the average range. (R-

79). was not recommending that needed to be considered for speech and language therapy.

The parents presented the testimony of , the Assistant Head of the , in support of its position that the is appropriate to meet needs. (R-99). described the as being a school for students with language-based learning disabilities. (R-105). He stated that 15-

17 percent of the program is devoted to religious practice. described a comprehensive professional development plan for the school’s staff. testified that the staff is supervised using the Danielson criteria to maintain educational standards. The school has learning coaches on staff and a school psychologist for the social/emotional needs of the students. (R-114).

stated that in the Middle school the classes have a range of eight or nine students in the class. (R-107). To address its students’ reading deficits, the school uses the Preventing Academic Failure (“PAF”) curriculum which is an Orton-Gillingham based reading program. (R-108). While the school does not require state certification, testified that most of the students are either certified special education teachers or speech and language therapists. (R-112).

testified about the reading program used at the school. (R-154). The program is a multi-sensory and sequential approach to teaching reading. ’s testimony concerning the Orton-Gillingham approach was seriously challenged when she admitted that she was unaware of the rigorous certification process required by the Orton- Gillingham Academy. She was not even familiar with the academy. (R-161, 162).

Nevertheless, did not hold herself out as using Orton-Gillingham, she testified that the school uses the PAF curriculum.

testified that adapted nicely to the instruction being employed at the school. testified that once recognized the rule patterns, she quickly adapted the strategies. (R-156). anxiety concerning her performance in the classroom decreased. She began to participate in the class discussions more frequently.

Once accuracy and fluency improved, she was less focused on decoding and could actually enjoy the reading process. (R-157). testified that writing improved and the use of the reading strategies led to progress in all her core classes. (R-

160). Legal Framework

Two purposes of the 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 (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 [2009]; Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-

07 [1982]). A FAPE is offered to a student when (a) the board of education 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 (Rowley, 458 U.S. at 206-07; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 [2d Cir. 2014]; R.E. v. New York City Dep't of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).

"'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in 16 an IEP'" (Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998], quoting Rowley, 458 U.S. at 206; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]). The Supreme Court has indicated that "[t]he IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement" (Endrew F. v. Douglas Cty. Sch.

Dist. RE-1, 580 U.S. __, 137 S. Ct. 988, 999 [2017]).

While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir.

2003]). Under the IDEA, if procedural violations are 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 (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245). The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][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" (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" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). "The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created" (Endrew F., 137 S. Ct. at 1001). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (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]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; 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'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see T.P., 554 F.3d at 254; P. v. Newington

Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Endrew F., 137 S. Ct. at 1001 [holding that the IDEA "requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances"]; Rowley, 458 U.S. at 192).

The student's recommended program must be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see 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). An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]).

I find that the Department failed to sustain its burden that it offered a free appropriate public education to for the 2018/2019 school year. The Department failed to comply with the procedural requirement that the student be evaluated and recommended for services within the required time frame. It is uncontroverted, and the Department concedes, that it did not complete its evaluation and review of the student’s needs in compliance with the timelines set forth in the law. (R-225). The Department seeks excusal from the procedural defect because, in its view, the student was not eligible for special education services in the first place. As the parent’s counsel correctly points out, this argument has been previously rejected by the Office of State Review.

Application of a Student with a Disability, SRO No. 18-085. Once a referral is received by the CSE chairperson, the chairperson must immediately provide the parents with prior written notice, including a description of the proposed evaluation and the uses to be made of the information. 8 NYCRR Section 200.4[a][6]; 200.5[a][5]. The timelines are thereafter set in motion.

After parental consent has been obtained by a district the “initial evaluation shall be completed within 60 days of receipt of consent.” (8 NYCRR Section 200.4[b]).

“Within sixty school days of the receipt of consent to evaluate for a student not previously identified as having a disability . . . the board of education shall arrange for appropriate special programs and services.” (8 NYCRR Section 200.4[e][1]). In this case, the initial referral to the CSE was made on May 11, 2018. The Department provided the proper notice to the parents, dated May 18, 2018. (P-B). The CSE did not initiate the evaluations, however, until July 19, 2018. When the parents brought to the evaluation, on that same day, they signed consent. Two full months went by with no action by the Department in response to the parents request for an evaluation. The

Department delayed the evaluation further when it sought on its own initiative to conduct a speech and language therapy evaluation. Finally, the required classroom observation was not conducted until October 29, 2018. Even if the date of the consent to evaluate,

July 19, 2018 is accepted as valid, the classroom observation should have been completed before September 17, 2018. For these reasons, the Department failed to comply with its obligations and failed to meet its burden that it provided the student with a free appropriate public education.

Tuition Reimbursement

In this matter, the specific relief the parents are requesting is tuition reimbursement for the 2018/2019 school year at the . For the reasons discussed herein, I find that the parents have met their burden to show that was appropriate and that the equities balance in favor of an award of tuition reimbursement.

A board of education 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.

(Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); Sch. Comm. Of Burlington

v. Dep’t of Educ., 471 U.S. 359, 369-79 (1985); R.E., 694 F.3d at 184-85). In Burlington, the Supreme Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA. “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. (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412(a)(10)(C)(ii); 34 CFR 300.148). The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. (Educ. Law § 4404 (1)(c); see R.E., 694 F.3d at 184-

85).

(P-K; R-104). stated that 15-17 percent of the program is devoted to religious practice. Based upon schedule of classes, the religious component of her program is more accurately quantified at twenty-five percent. Of the eight classes takes, two are based on religious instruction. Judaic Studies and Hebrew, which draws from Judaic Studies curriculum to teach the Hebrew Language.

described a comprehensive professional development plan for the school’s staff. testified that the staff is supervised using the Danielson criteria to maintain educational standards. The school has learning coaches on staff and a school psychologist for the social/emotional needs of the students. (R-114). The teaching staff, while not all certified to teach special education in the State of New York, are trained and appropriately educated to teach (P-G).

Nevertheless, did not hold herself out as an expert in Orton-Gillingham, nor did she claim that the school was exclusively using that approach. testified that the school uses the PAF curriculum. To the extent that could benefit from reading instruction to improve her hesitant reading production, it appears as if she has made very swift progress.

testified that adapted nicely to the instruction being employed at the school. testified that once recognized the rule patterns for reading instruction, she quickly adopted the strategies. (R-156). anxiety concerning her performance in the classroom decreased. She began to participate in the class discussions more frequently. Once accuracy and fluency improved, she was less focused on decoding and could enjoy the reading process. (R-157). testified that writing also improved and the use of the reading strategies led to progress in all her core classes. (R-160). The progress reports placed into evidence support ’s testimony that was being appropriately educated at the .

A balance of the equities does not favor a denial of tuition reimbursement in this matter. There was no evidence that the parents failed to cooperate with the Department.

. credibly testified that when asked, the parents presented for her evaluation and attended the CSE meetings once it was scheduled. The parents also provided the Department with the appropriate notice of their intention to place at the and seek reimbursement. (P-E). While the parents commenced payment of the tuition for prior to its referral of the student to the CSE for a determination of eligibility, it does not indicate a lack of cooperation. At the time, the student was not classified and it makes sense that the parents would arrange a payment plan to afford the tuition of a private school. The parents request for tuition for the is granted, reduced by twenty-five percent for the religious portion of the program. The school shall be directly funded in the amount of thirty-nine thousand and seven hundred dollars ($39,700.00) which is the stated balance due to the for the tuition for the 2018/2019 school year. (P-L). The remaining five thousand and seventy-five dollars ($5,075.00) shall be paid directly to the parents as reimbursement for tuition previously paid.

Regarding the question of whether the CSE determination concerning eligibility should be reversed, I find that it should not. While the issue is essentially moot because the relief the parents requested has been granted, I have considered the appropriateness of that determination.

The Department did not present any witnesses familiar with what occurred at the CSE in support of its decision to find ineligible for special education services.

However, there is a wealth of information and evaluations which support the CSE determination that was not eligible for special education services. On paper, the CSE’s determination appears to be accurate. Based upon the assessments alone, profile is not one of a child who needs special education. None of the testing revealed a learning disability and when was observed in the classroom she did not present as a student struggling with a reading disability.

The only information which would support a finding of a learning disability was that provided by . While I find . testified credibly about her daughter’s struggles in the public school, I do not find that struggle amounted to evidence of a learning disability. I find that concerns about academic difficulties are genuine but should be considered with caution. . clearly had an incentive to inflate the severity of difficulty in school. In order to overcome that bias, her testimony would need to be bolstered by evidence of the struggles . was testifying about. There was no objective evidence produced at the hearing of learning difficulties prior to her application to the .

was described by her mother as cooperative but avoidant when it came to her school work. Whether avoidance was due to a learning disability or something else is not definitively supported by the record. Furthermore, the circumstances surrounding the referral of to the CSE is problematic in terms of endorsing description of academic struggle. The referral process did not begin with a parental concern, then an evaluation and then a referral to the CSE. The process began with a school, then a strained evaluation by a person affiliated with that school and then the CSE referral. On the record before me, I will not disturb the CSE finding concerning eligibility. The overwhelming evidence of academic ability supports the CSE’s determination.

ORDER

I find the following:

1. The Department has failed to meet its burden that it provided with a free and appropriate public education for the 2018/2019 school year;

2. The parents have sustained their burden that the is appropriate to meet the student’s needs;

3. The equities balance in favor of an award of tuition reimbursement;

4. The parents claim for $59,700.00 as tuition reimbursement is granted and reduced by twenty-five percent for that portion of the school program which is religious in nature;

5. The Department shall reimburse the parents in the amount of $5,075.00 and directly fund the outstanding balance of $39,700.00 to the .

6. The CSE determination concerning the student’s eligibility is sustained on the record before me. Dated: January 8, 2020 Leah L. Murphy, IHO_ Number Exhibit Date Pages P-A Referral for Evaluation 05/11/18 1 P-B Proof of Delivery 05/14/18 3 P-C Prior Written Notice 05/18/18 2 P-D Educational Update 12/28/18 11 P-E Ten Day Notice 08/20/18 2 P-F Attendance Record 18/19 1 P-G Teacher List Undated 3 P-H Progress Report 01/2019 24 P-I Progress Report 06/2019 28 P-J Attendance report 18/19 1 P-K Enrollment Contract 03/10/18 5 P-L Affidavit of Payments 10/30/19 1 P-M Class Schedule 18/19 1

DISTRICT EXHIBITS

1 Due Process Complaint 07/09/2019 5

2 Notice of IEP Meeting 07/30/18 3

3 2d Notice of IEP Meeting 09/12/18 3

4 3rd Notice of IEP Meeting 11/21/18 3

5 Ineligibility Determination 01/09/19 2

6 Present Levels Statement 12/11/18 5

7 IEP Attendance 12/11/18 1

8 Prior Written Notice 01/18/19 3

9 Consent for Evaluation 07/19/18 1

10 Psychoeducational Report 07/25/18 7

11 Vocational Interview 07/19/18 2

12 Social History Eval 07/19/18 3

13 Classroom Observation 10/29/18 3

14 Speech and Language Eval 08/08/18 3

15 SESIS LOG 18/19 7

16 Parent Info Session 12/05/17 4 _______________________________________________________

In the Matter of the Application of

, a Child with a Disability, by his parents, or a Due Process Impartial Hearing,

Petitioners,

-against-

DEPARTMENT OF EDUCATION OF THE CITY OF

NEW YORK,

Respondent. ________________________________________________________

NOTICE OF APPEAL TO STATE REVIEW OFFICER

PLEASE TAKE NOTICE

Within 35 days of the date of this decision, the parent and/or board of education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.

The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25 or 35 day period. 8 NYCRR 270.2(b). Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.

Directions and forms for filing an appeal can be obtained from the local school district or State Education Department and can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.

Footnotes

[1] Exhibits will be referenced as follows: Impartial Hearing Officer exhibits will be referred to as “IHO - ___,” Joint exhibits will be referred to as “J-__,” Department of Education exhibits will be referred to as “D-__,” and Parent exhibits will be referred to as “P-__.” References to the record will be cited as “R-__,” followed by the page number.

New York City Department of Education, Impartial Hearing Decision