New York City Department of Education, Impartial Hearing Decision

CORRECTED FINDINGS OF FACT AND DECISION

Case Number: 186036

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Dates of Hearings: October 29, 2019

December 9, 2019

January 21, 2020

March 24, 2020

April 29, 2020

May 8, 2020

Record Close Date: June 25, 2020

NAMES AND TITLES OF PERSONS WHO APPEARED

OCTOBER 29, 2019

For the Student:

Esq. Attorney

For the Department of Education:

Ph.D. District Representative (via telephone)

NAMES AND TITLES OF PERSONS WHO APPEARED

DECEMBER 9, 2019

For the Student:

Esq. Attorney (via telephone)

For the Department of Education:

none

NAMES AND TITLES OF PERSONS WHO APPEARED

JANUARY 21, 2020

For the Student:

Esq. Attorney (via telephone)

For the Department of Education:

Ph.D. — District Representative (via telephone)

NAMES AND TITLES OF PERSONS WHO APPEARED

MARCH 24, 2020

For the Student:

Esq. Attorney (via telephone)

For the Department of Education:

None

NAMES AND TITLES OF PERSONS WHO APPEARED

APRIL 29, 2020

For the Student:

Esq. Attorney (via telephone)

Parent (via telephone)

Head of Teaching & Learning, (via telephone)

One-to-One Educational Facilitator, (via telephone)

For the Department of Education:

District Representative (via telephone)

NAMES AND TITLES OF PERSONS WHO APPEARED

MAY 8, 2020

For the Student:

Esq. Attorney (via telephone)

Parent (via telephone)

Teacher, (via telephone)

For the Department of Education:

Ph.D. District Representative (via telephone)

Introduction:

This case was brought before me upon my designation by the Department of Education (“District”) as an impartial hearing officer pursuant to the Individuals with Disabilities Act (“IDEA”), 29 USC §1400 [f][1] and Part 200 of the Regulations of the New York State Commissioner of Education. This matter was brought by , the Parent (‘Parent’) on behalf of the student (“Student”), through her advocate, , MS, LCSW from by filing a Due Process Complaint dated August 28, 2019 with the District. The Parent was represented by , Esq.at the hearings.

The Parent is alleging that her son, , was denied a free and appropriate public education (“FAPE”) for the 2019-20 school year and is seeking tuition for his unilateral placement at the , as Well as vision education services and specialized transportation for said year. The Parent is also requesting the cost of the Neuropsychological and Educational Evaluation Report by Dr. .P-C.

In terms of pendency, at the October 29, 2019 hearing, the parties agreed that pendency was based upon the Findings of Fact and Decision dated April 18, 2019, which provided that would continue to attend the ; would continue to receive specialized transportation including walking aids; and would continue to receive two sessions per week of vison education services for 60 minutes each time. P-B. A Pendency Order was issued on December 15, 2019.

There were seven days of hearings in this matter. Hearings were conducted on October 29, December 9, 2019, January 21, March 24, April 29 and May 8, 2020. Extensions were granted in this case making the final compliance date July 4, 2020. A list of Exhibits is attached as Exhibit A. The Parent and the Impartial Hearing Officer submitted exhibits.

Background

This case involves a year old student. During the 2019-20 school year, attended the where the Student was unilaterally placed by the Parent.

With respect to the 2019-20 school year, an Individualized Education Program (“TEP”) was developed by the Committee on Special Education (“CSE”) on October 1, 2019. IHO-I. Pursuant to the October 1, 2019 IEP, the following recommendations were made:

Special Class, Math, 12:1, ten times per week, one period each time;

SABARWN

Special Class, ELA, 12:1, ten times per week, one period each time; Special Class, Social Studies, 12:1, five time per week, one period each time; Special Class, Sciences, 12:1, five times per week, one period each time; Adapted Physical Education, three times per week, one period each time; Special Education Teacher Support Services (SETSS), group service, three times er week, one period each time; Occupational Therapy, 1:1, three times per week, 30 minutes each time; Physical Therapy, |: , three times per week, 30 minutes each time; and

9. Vision Education Services, 1:1, one time per week, 60 minutes each time.

The Student shall also have a paraprofessional, full time, 1:1 for orientation and mobility and a barrier free location. IHO-IIL.

The Parent sent a Ten Day Letter to the District on August 20, 2019 (P-D) and filed a Due Process Complaint on August 28, 2019. P-A.

The Parent entered into an Enrollment Contract for with the on July 9, 2019. P-K. I was appointed as an Impartial Hearing Officer on August 28, 2019.

Position of the Parties

Parent’s Case

The Parent called thee witnesses, ; , and and placed thirteen documents in evidence. P-A—P-N.

The first witness was . She has a Master’s degree in early childhood and elementary education. Tr. 50. She has her NYS permanent certification in N through grade six. She was a classroom teacher, head of a program and is presently a senior administrator, both teaching and running the school. Tr. 50. She has the title of Head of Teaching and Learning at . Tr. 51. is an independent school that has children ages one through 13. They have an approach that understands child development along with a rigorous academic curriculum. They work with mixed age groupings with a two year age range in each class so that the older students work with the younger ones and vice versa. Tr. 52. The children encompass a wide range of nationalities, economic, ethnic, religious, and cultural differences. They are a general education school that provides special education services to their students. Tr. 53. The services are differentiated and individualized based upon the student’s needs. Tr. 53. There are approximately 100 students and they have early childhood through grade eight (three year olds through age thirteen). Tr. 54. The school day beings at 8:30 and ends at 3:00 Monday, Tuesday, Thursday, Friday and ends at 2:00 on Wednesdays. Tr. 55. The head teachers have Master’s degree and the assistant teachers have undergraduate degrees and most are working towards their Master’s degrees. Tr. 55. There are many opportunities for professional development including a week long training in August, a full day each trimester for teacher training, and weekly staff meeting. Tr. 56. The teaching staff also meets with Ms. in a group and with each team of teachers that work in a particular age group. Tr. 57. The school offers Speech and Language therapy, Occupational therapy, Physical therapy, individual one-to-one instruction with specialists that work on specific issues with children, and therapeutic Counseling. Tr. 58. There are special educators for students with serious needs in some of the classrooms. Tr. 58. There are team meetings where everyone who works with a particular child attends three times a year and also they meet with the parents three times a year.

Ms. is familiar with . She is the direct supervisor for the Student’s team of teachers and also leads workshops and teaches in his classroom. Tr. 59. She also has lunch with his class. Tr. 59. has cerebral palsy and as a result, has severe physical and visual motor planning difficulties. As a result, his fine motor skills are delayed as well as his cognitive development. His issues with mobility and balance and vision have impacted his academic work in terms of learning how to read and write. Tr. 60. He needs continual support. Tr. 60. Specifically, he requires somebody be with him throughout the day to facilitate not only his physical needs so that he can be comfortable in space in the environment but to make all the necessary accommodations so he can participate in the academic parts of the day. Tr. 61. The school has a para in the classroom fulltime and they have a one-to-one special education instructor three hours a week to address his specific areas of learning. Tr. 60-61. The are three teachers in the classroom and 16 children. The head teacher has a Master’s degree in general education, the assistant teacher has a bachelor’s degree and is working towards a Master’s degree, and the para has an undergraduate degree. Tr. 62. The Para is there for him, however, she does work with other children in the class as needed. Tr. 63. Another person comes in for three hours of special education instruction, Ms. . He is with his head teacher, assistant teacher, and para when he is not with his learning specialist or with his Occupational therapist or Physical therapist. Tr. 69.

is ina class with six, seven and eight year olds. There are 16 students in the class. One other student has an IEP and a few others receive some support services. Tr. 70. Although the para does not have a special education background, she participates in all staff development and staff meetings. The individual instruction teacher talks with the para and guides her on what todo. Tr. 72. She also attends and/or speaks with ’s Occupational therapist and Physical therapist to help and practice the work they do in therapy. Since there is a lot of physical help he needs with his body movements and his placement of his arms and feet and his vision and materials placed in front of him, she has very direct training from the therapists on how to ensure that’s happening during the day. Tr. 72. Academically, the para sits next to him and works with him while the class is being led by the head teacher or the one-to-one specialist. The para does whatever the necessary modifications are to allow to fully participate in his academic classes. Tr. 73. has vision issues so the para may need to write on his paper what is on the board or may need to dictate a story instead of writing it down. He needs repetition to support his executive functioning issues and his processing speed is a little delayed to respond to or practice what is being taught. Tr. 74. He needs constant breaks since everything is fatiguing (i1.e., going to the bathroom takes more time because of his mobility issues.). Tr. 74.

At the end of last year, the school did assessments to see where he was in terms of his learning needs and consulted with his therapists and parents and then in September did more assessments prior to creating a program for him. Tr. 75. They use both formal and informal assessments. Tr. 75. The classes are ungraded, however, the approach of the school is that everyone is learning on a continuum so every child is working where they need to be and they all have individualized plans. Tr. 76. They feel that everyone can learn from everyone. Tr. 76. For math, reading and writing, they break into small groups with one teacher assigned to meet their academic needs. Tr. 76. Ms. , the head teacher in his class, is his teacher for small groups. Tr. 79.

In reading and decoding, is on grade level (first grade) and he has accomplished a lot this year. Tr. 81. His comprehension and decoding are up to grade level. Tr. 81. He can listen to a story and tell who the main characters are, the plot, the setting, sequence, the story, and provide the main idea. Tr. 81. He is beginning to make inferences. Tr. 82.

Due to the fact that his graphic motor skills are delayed, he is still working on capital letters and needs a lot of modifications and accommodations in order to work on fine motor skills. This is a source of frustration for him as he would like to write his own stories. Tr. 82. He uses a slant board, pencil grips, etc. Tr. 83. In math, he can do mental math of adding numbers, combinations of one digit numbers and patterns. He can recognize an addition or subtraction problem and answer it and can even do multistep problems.

has made tremendous progress. He can go into the bathroom and take care of his personal needs without the para with him. He can walk without having his walker all the time. Tr. 84. He can go up and down stairs with an adult. Tr. 85. His stamina is stronger. Tr. 85. He had vision surgery last summer that dramatically improved his vision which has allowed for his academic abilities to flourish. Tr. 85. As a result of his increased sight and tolerance for being in a chair and not being distracted, his academic work has improved. He can put his energies to cognitive skills rather than being fatigued by just being physically present. Tr. 86. He participates in class, initiates contact about his work, is very responsible and involved socially. Tr. 86. Therefore, he has progressed physically, socially, emotionally and cognitively. Tr. 86. He has exceeded all Ms. ’s expectations for the 2019-20 school year. Tr. 87. She stated that she believes is appropriately placed at and he has made meaningful educational gains throughout the school year. Tr. 87. She feels that his special education needs are being met academically and in connection with his physical needs. Tr. 97.

is the only student with significant physical challenges and the room is set up to meet those needs. He has a walker, a special therapeutic chair that is the height required, a cushion and a table at the right height so he is sitting properly. Tr. 88. There is enough space around him physically so he can maneuver. Tr. 88.

The classroom teacher that had from September through January had special education training. Tr. 90. With respect to his orthopedic impairments, the specialists that work with him direct his para and the teachers. Tr. 91.

The next witness was . She has a Master’s degree in early childhood education and special education. She is NYS certified in early childhood education and special education, birth through grade three. Tr. 100. She was a special education teacher and has been working as a one-to-one special education instructor for the past nine years. Tr. 101.

She is familiar with because she works one-to-one as a special education support for at . Tr. 101. She works with him during reading and writing and will stay with him in the classroom when new material is being presented. Tr. 102. She provides direction to ’s teachers to help implement modifications and supports to the Student. She meets with the teachers informally every day or every other day and formally every two weeks and she works with them to make modifications so has the support systems he needs in place. Tr. 107. She is involved with the teams curriculum development and works with the teachers to make modifications where appropriate. Tr. 103. Visually he needs support positioning in the classroom so he can clearly see what’s going on. Tr. 103. Physically he needs support by using slant boards and other tools so the teachers have to make sure those are available when planning a lesson. Tr. 103. He also may need pre-training so if the teachers are planning a new lesson they must work with him prior to group instruction. Tr. 104. She also works with the teachers so there are appropriate groupings for him with peer modeling. Tr. 104. If they are using manipulatives, they may modify them or use something larger to meet his needs. Tr. 107. She works collaboratively with the teachers and the paraprofessional so they all have a plan. Tr. 105.

One of ’s key issues is attention and being able to maintain attention especially if its without a lot of visuals. They also work on organization which is something that he works on across domains in the classroom. needs to have support for transition, processing, and physical modifications (i.e., proper chair placement and posture). Tr. 106. In reading and writing, they are working on increasing comprehension of stories with context, plots and characters. With handwriting, they are working on the formation of letters which is both a cognitive issue and an Occupational therapy issue for his hand muscles. Tr. 106. With respect to stamina, it also goes across all domains. To maintain attention and focus, they give him verbal prompts and encourage him. Also, his visual delays interfere with this ability to maintain attention. Tr. 106. They work a lot on decoding, sight words and becoming a more fluent reader. Tr. 107. In math, he is able to add and subtract with visual cues for numbers one through 20 and without visual cues up to ten. He is able to count to 100 by ones and count up to 20 by two’s. Tr. 108.

Ms. stated that has made great progress this year. Tr. 109. At the beginning of the year he knew all the consonant sounds but not vowel sounds, and now he shows strength in this. Tr. 110. His handwriting has shown great improvement and it is legible. Tr.

110. For math, he is now able to add and subtract through number ten without visual cues. Tr.

111. He understands shapes in a far more sophisticated way that he did at beginning of year. Tr.

111. At beginning of year he could order one digit numbers but now he can do three digit numbers. Tr. 111. He is able to count by twos and fives and perform simple word problems and able to extract the information with far greater speed then he had previously. Tr. 111.

In order to accommodate ’s needs in the classroom, they are using scaffolding and using bridges to overcome gaps in skill. The are also breaking down steps and chunking information. Tr. 112. They are preteaching and then reviewing after its presented in class. Tr.

113. They give him extra time to finish assignments like writing. He needs redirection and refocusing and when he fatigues, needs support or prompts to reenergize. Tr. 113. He benefits from appropriate groupings and repetition of directions. Tr. 113-114. He also needs tactile support and multisensory tools and modifications to manipulatives, if appropriate. Tr. 114.

Ms. stated that she is in the classroom with other students in his class so observes him and works with him. Tr. 114. She feels that is an appropriate setting since he is making progress across all domains.

The last witness was . She is the Director of Admissions and Enrollment Management at . Tr. 131. She has known in a supervisory role for the past two years. She is familiar with the Enrollment Contract. Tr. 131; P-K. All the students at do not pay the same tuition. Tr. 131. The tuition for all students is $41,150 and each student pays additional fees for additional areas of support. Tr. 132. There is also a comprehension educational program for certain students with needs and this program supports students who need extra support with their physical and educational learning. Tr. 133. The program costs $10,000. They meet with the providers weekly to talk and create a plan for the student and coordinate all the services with the classroom teachers. They also meet with the student’s parents to make sure the plan is followed at home and school. Tr. 137. They have 36 students in the elementary school and five get the comprehensive education program plan. Tr.

137. The para gets paid $22,625 for the year. The one-to-one instructor gets paid $185 per hour which is $18,135 for the year. Tr 137. The Occupational therapist gets paid $165 per session and there are two sessions per week so it is $12,870 for the year. Tr. 137. The Physical therapist gets paid $180 per session and there are two sessions per week so it is $14,040 for the year. Tr.

138. The providers are trained within the school but are independent providers and participate in the comprehensive educational meetings. Tr. 138. The full tuition comes to $129,000.

District’ Case

The District called no witnesses and placed no documents into evidence. The District did not present a case and stated that they were conceding FAPE. They reserved the right to challenge Prong II. Tr. 38.

Findings

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 individual 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. 1499[D][1][A]-[B]; see generally, Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).

The decision in this case rests on a determination of the three-pronged test set forth by the United States Supreme Court in School Committee of the Town of Burlington v. Dep’t of Educ. of Massachusetts, 471 U.S. 359 [1985]. 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 (Prong 1), the services selected by the Parent were appropriate (Prong 2), and equitable considerations support the parent’s claim (Prong 3). Burlington, 471 U.S. at 370; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 92d Cir. 2005]). Prong 1-Appropriateness of District Program The purpose of the IDEA is to ensure that all children with disabilities have available a free and appropriate public education (FAPE) which addresses their unique special education needs and to ensure that their rights and the rights of Parents are protected. 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 an IEP” (Walczak v. Fla. Union Free Sch. Dist., 142 R.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 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 (20 U.S.C. §1415[f][3][E][11]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4] [ii]; Winkleman 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][fi]). A school district offers 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 v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]; see, Rowley, 458 U.S. at 189). “The adequacy of a given JEP 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; Walcezak, 142 F.3d at 132). Nonetheless, a school district must provide “fan 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, P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 20007 WL 465211, at *15). 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”’]; see Rowley, 458 U.S. at 192). The student’s recommended program must also be provided in the least restrictive environment (20 U.S.C. § 1412 [a][5][A]; 34 CFR 300.114 [a][2][h], 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 education begins with an IEP that accurately reflects the results of evaluations to identify the students’ needs (34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2 ][i]; Tarlowe v. Dep’t of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008), establishes annual goals related to those needs (34 CFR 300.320[a][2]; 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]; see Application of the Dep’t of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep’t of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

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 (Educ. Law §4404[1][c], as amended by Ch. 583 of the Laws of 2007).

The first issue in this matter is whether there was a denial of FAPE for the 2019-20 school year. The District conceded FAPE in this matter, taking the position that they did not provide the Student with FAPE for the 2019-20 school year.

Prong 2-Appropriateness of Parental Placement

Under the second prong of Burlington, the Parent bears the burden of proving the appropriateness of the Parent’s unilateral placement of at . In order to meet that burden, the Parent must show that offered an educational program designed to meet ’s special education needs. Burlington, 471 U.S. at 370; M.S. v. Board of Education of the City of Yonkers, 231 F.3d 96, 104 (2d Cir. 2000). The Second Circuit has explained that “Subject to certain limited exception, the same consideration and criteria that apply in determining whether the school district’s placement is appropriate should be considered in determining the appropriateness of the parent’s placement...” (Frank G. v. Bd. of Educ., 459 F.3d at 364 (2d Cir. 2006) (quoting Rowley, 458 U.S. at 207 and identifying exceptions). The issue turns on “whether a placement is reasonably calculated to enable the child to receive educational benefit. A private placement meeting this standard is one that provides progress not regression. Gagliardo, 489 F.3d at 112. “To qualify for reimbursement under the IDEA, Parent 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.” Gagliardo, 489 F.3d at 112, See, Frank G., 459 F.3d at 364-65). See also, A.D. and M.D. v. Bd. of Educ., 690 F. Supp. 2d 193 (2d Cir. 2010). It should be noted, however, that while evidence of progress is relevant, it does not establish that a private placement is appropriate (Gagliardo, 489 F 3d. at 115 [citing Berger v. Median City Sch. Dist., 348 F3d 513, 522[6" Cir. 2003][stating that evidence of academic progress at a private school does not establish that the private placement offers adequate and appropriate education under the IDEA”’])

The Parent has met her burden in showing that was an appropriate placement for Ms. testified that is a small independent school that has an approach to learning that combines child development along with a rigorous academic curriculum. They work with mixed age groupings and the population in the school is very diverse. Tr. 13. She stated that they are a general education school that provides special education services to their students and the services are differentiated and individualized based upon the Student’s needs. Tr. 53. The head teachers have Master’s degrees and the assistant teachers have undergraduate degrees and most are working towards their Master’s degrees. Tr.

55. The school offers Speech and Language therapy, Occupational therapy, Physical therapy, individual one-to-one instruction with specialists that work on specific issues with professional development throughout the year.

has a diagnosis of Periventricular Leukomalacia (PVL), which causes spasticity in his upper and lower extremities. According to the Parent PVL causes Cerebral Palsy Spastic Diplegia. This leads to impairments in his balance, coordination, postural control, fine motor skills, visual motor skills, spatial awareness, and strength. [HO-I; [HO-II. On the November 1, 2019 IEP, it states that has difficulties with fine motor, strength, balance, spatial awareness, reading comprehension, math problem solving, writing, and attention.” On the NeuroPsychological and Educational Evaluation dated August 16, 2018, as reported on his 2019 TEP (IHO-II), it states that “ meets criteria for the predominantly inattentive presentation of Attention -Deficit/Hyperactivity Disorder. This includes symptom of inattention and executive functioning difficulties associated with task management. Finally, the motor difficulties with which he presents have a significantly limiting factor on the development of early writing skills and warrant a diagnosis of Specific Learning Disorder with Impairment in written expression.”

Ms. testified that as a result of the Student’s diagnosis of cerebral palsy, he has severe physical and visual motor planning difficulties and his fine motor skills are delayed as well as his cognitive development. His issues with mobility and balance and vision have impacted his academic working learning how to read and write. Tr. 60. The program at the is individualized to meet his needs. He requires someone to be with him full time to facilitate his physical needs and to make all necessary accommodations so that he can participate in the academic portion of the day. The school has a para with him fulltime, and also a special one-to-one special education instructor three times a week to address his specific areas of learning. Tr. 60-61. There are three adults in the classroom (including his para or special education instructor), as well as various related service providers as needed. Tr. 69. He is in acclass of students ages six through eight. The special education instructor guides the para and teachers and related service providers as to what to do. The para sits next to and guides him while the class is being lead by one or both of the teachers, making accommodations to address all of his needs including attention and visual needs. Tr. 74. The special education instructor provides direction to the teachers to help implement modifications and supports for the Student. Tr. 107. She meets with the teachers informally every day or every other day and formally every two weeks and is involved with the team’s curriculum development as it relates to . Tr. 103. Visually, he needs support and positioning so that he can clearly see what is going on. Tr. 103. Physically, he needs slant boards and other tools. He also requires preteaching and manipulatives that are appropriate for his needs. They use scaffolding, they break down steps, chunk material, and provide him with extra time to complete assignments. They also provide tactile support and multisensory tools and redirection and refocusing when necessary. Tr. 111-113. The special education instructor works collaboratively with the team so they all have a plan for . Tr. 105.

Ms. , Ms. and the Parent testified to his progress this year. Ms. stated that he made tremendous progress. He can go to the bathroom and take care of his personal needs without the para, he can walk without having his walker all the time, and can now go up and down stairs with assistance. His stamina is stronger and due to his vision surgery last summer, his vision has improved dramatically, which has allowed his academic work to improve. As a result of his increased sight and tolerance for being in a chair, he can put his energies to his cognitive skills rather than being fatigued and frustrated b just being present She stated that he has progressed physically, socially, emotionally and cognitively and accordingly, believes that is an appropriate fit for the Student. Tr. 86-87. Ms. also stated that he has improved in his academics in all area and has made progress across all domains. Tr. 106-108

Based on the foregoing, it is clear that the is providing with educational instruction specifically designed to meet his unique needs and he is receiving educational benefit. Furthermore, the integration of the and related services with the mainstream classes at the is providing with an appropriate education in the least restrictive environment. Therefore, I find that the Parent has met her burden in proving the appropriateness of the for Prong 3-Equitable Considerations The third prong of the Burlington decision requires a balancing of the equities in determining whether reimbursement should be granted.

The IDEA provides that an award of tuition reimbursement may be reduced or denied if notwithstanding their being advised that they should do so, parents never inform the CSE of their disagreement with its proposed placement and their intent to place their child in a private school at public expense at the most recent CSE meeting prior to their removal of the child from public school, nor provide the school district with written notice of such information ten business days before such removal. 20 USC 1412 (a)(10)(C) (ii).

I find that the Parent participated in CSE meetings on October 30, 2018 and November 1, 2019 and has provided the school with all reports and other necessary evaluations and documents.

Based upon their actions, in terms of equitable considerations, I find that the Parent cooperated with the District and analysis of equitable considerations offers no basis to rule against them.

In addition to the foregoing, it is clear that vision education services (vision therapy) is a service that the Student requires in order to make progress. In fact, it was a related service provided to the Student on his October 30, 2018 and November 1, 2019 IEPs. IHO-I; [THO-II. Pursuant to the Pendency Order dated January 20, 2019, he was mandated to receive vision education services, 1:1, two times per week for 60 minutes each time. Both Ms. and Ms. testified to the Student’s vision issues and its effect on his ability to access his education. Accordingly, the Student should continue to receive vision education services for the remainder of the 2019-20 school year, 1:1, two times per week for 60 minutes each time at an enhanced rate not to exceed $210 per hour.

Federal and State regulations provide that, subject to certain limitations, a parent has the right to an IEE at public expense if the parent disagrees with an evaluation obtained by the school district (34 CFR 300.502[a], [b]; 8 NYCRR 200.5[g][1]; see R.L. v. Plainville Bd. of Educ., 363 F. Supp. 2d. 222, 234-35 [D. Conn. 2005] [finding parental failure to disagree with an evaluation obtained by a public agency defeated a parent's claim for an IEE at public expense]). A parent, however, is only entitled to one IEE at public expense "each time the public agency conducts an evaluation with which the parent disagrees" (34 CFR 300.502[b][5]; 8 NYCRR 200.5[g][1]; see R.L., 363 F. Supp. 2d at 234-35). Ifa parent requests an IEE at public expense, the school district must, without unnecessary delay, ensure that either an IEE is provided at public expense or initiate an impartial hearing to show that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria (34 CFR 300.502[b][2][i]-[11];10 8 NYCRR 200.5[g][1 ][iv]; see, e.g., A.S. v. Norwalk Bd. of Educ., 183 F. Supp. 2d 534, 549 [D. Conn. 2002] [upholding order of reimbursement where the district failed to demonstrate that its evaluation was appropriate]; Application of the Bd. of Educ., Appeal No. 09-109; Application of a Student with a Disability, Appeal No. 08-101). If a school district's evaluation is appropriate, a parent may not obtain an IEE at public expense (34 CFR 300.502[b][3]; 8 NYCRR 200.5[g][1][v]; DeMerchant v. Springfield Sch. Dist., 2007 WL 2572357, at *6 [D. Vt. Sept. 4, 2007]; Application of a Student with a Disability, Appeal No. 08-039; Application of a Child with a Disability, Appeal No. 07-126; Application of a Child with a Disability, Appeal No. 06-10 The Analysis of Comments accompanying the federal regulations implementing the provisions for an IEE state that "[a]lthough it is appropriate for a public agency to establish reasonable cost containment criteria applicable to personnel used by the agency, as well as to personnel used by parents, a public agency would need to provide a parent the opportunity to demonstrate that unique circumstances justify selection of an evaluator whose fees fall outside the agency's cost containment criteria" (Independent Educational Evaluation, 71 Fed. Reg. 46689-90 [Aug. 14, 2006]). 21067; Application of the Bd. of Educ., Appeal No. 05-009; Application of a Child with a Disability, Appeal No. 04-082; Application of a Child with a Disability, Appeal No. 04-027).

In this case, the Parent requested the costs of a Neuropsychological and Educational Evaluation Report administered by , Psy.D. a year after the IEE was conducted. P-D; P-M. This evaluation was done in August and September 2018. No evidence was provided at the hearing indicating that the Parents requested an IEE prior to hiring Dr. , hor that they were objecting to an evaluation conducted by the District. In fact, this issue was not raised by the Parent at all at the hearing. Accordingly, the request for payment for the cost of the evaluation is hereby denied.

Based upon the foregoing, I find that the District did not provide FAPE to for the 2019-20 school year (Prong 1), the Parent’s placement of at is appropriate (Prong 2), and the Parent cooperated with the District and analysis of equitable considerations offers no basis for ruling against him. (Prong 3). Accordingly, the Parent are entitled to tuition reimbursement for the 2019-20 school year at in an amount not to exceed $129,000, upon receipt of proof of attendance at and proof of payment. In addition, the Student is entitled to a continuation of vision education services, 1:1, two times per week for 60 minutes each time at an enhanced rate not to exceed Two Hundred Ten ($210) per hour for the remainder of the 2019-20 school year.

ORDER

Based upon the foregoing, it is hereby

ORDERED, that

l. The District shall reimburse the Parent for the tuition at for the 2019-20 school year in an amount not to exceed $129,000, for the 2019-20 school year, upon receipt of proof of attendance at and proof of payment; and

2. The Student shall continue to receive vision education services for the remainder of the 2019-20 school year which shall include two sessions per week for 60 minutes each time at an enhanced rate not to exceed Two Hundred ($210) Dollars per hour.

Dated: July 4, 2020

Corrected: July 9, 2020 tlise

B. Kestenbaum

Elise B. Kestenbaum, Esq.

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

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

If either party plans to appeal the decision, a notice of intention to seek review shall be 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 serviced upon opposing part 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 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 and model forms are available at: www.sro.nysed.gov/appeals.htm.

Appendix A Evidence

District’s Exhibits

No. Date Document Pages

None

Parent’s Exhibits

No. Date Document Pages

A 08/28/2019 Impartial Hearing Request (THR) 9

B 04/18/2019 Findings of Fact and Decision , Esq. Case Number: 19

C 08-09/2018 Dr. Neuropsychological and Educational Evaluation Report 15

D 08/20/2019 Parent 10 Day Letter to CSE 1

E 08/23/2019 Parent Letter with Evaluation to CSE with Proof of Delivery 3 F undated Program Description 4 G undated 2019-2020 Schedule 1

H 01/19/2020 2019-2020 CEP Teacher

Report 3

I 01/28/2020 2019-2020 Occupational Therapy 2TM

Trimester Report 3

J 02/05/2020 2019-2020 Physical Therapy Report 2

K 07/09/2019 2019-2020 Signed

Enrollment Contract 1

L various Tuition Payment Affidavit and Proofs of Payment 4 M various Dr. Billing Statement and Parent Proof of Payments 11

THO’s Exhibits

No. Date Document Pages

I. 10/30/2018 IEP 22

Il. 11/01/2019 IEP 24