New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 186294

Student’s Name:

Date of Birth:

District Number:

Hearing Requested by: Parent

Dates of Hearing: October 8, 2019

December 18, 2019

March 2, 2020

April 29, 2020

July 29, 2020

June 17, 2020

Record Closed Date: September 16, 2020

Hearing Officer: Gary D. Peters, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

October 8, 2019 December 18, 2019 March 2, 2020 April 29, 2020

Attorney Parent

Doe Designee Parent

Attorney Parent

Doe Designee Parent

Attorney Parent

Doe Designee Parent

Attorney Parent

NONE NA DOE

July 29, 2020

Attorney Parent

Doe Designee Parent

Father Parent

Ass’t Director Parent

Teacher/Student Advisor Parent

PARENT’S EVIDENCE

A. Exh.# Title Date Number of Due Process Complaint August 30, 2019 2 pgs

B. FOFD Case # October 3, 2018 8 pgs

C. Ten Day Notice Match 2020 8 pgs

D. Teacher Report August 16, 2020 3 pgs E. Neuropsychological Eval. 7/31/17 & 8/3/17 20 pegs

F. Program Description Undated 2 pgs G. Class Description Undated I pg

H. Semester! Report 2019- Jan.2020 4 pegs

1. Semestet2 Report 1/20 to 6/20 4 pegs J. Distance Learning Plan Spring 2020 I pg DOE

KK. Attendance Report 5/8/20 I pg

L. Enrollment Contract 2019-20 2/22/19 5 pg

M. Affidavit 6/12/20 ! pg N_ Proof of Payment undated Opgs

DOE’S EVIDENCE

None

INTRODUCTION

On the above dates, I conducted hearings, pursuant to the Individuals Disability Education Act (IDEA,^[20] 20 U.S.C. section 1415 (f)(3) regarding a special education program, Students with Disability, New York City Impartial Hearing Case # 186294. The hearings were held at the impartial hearing office, New York City Department of Education, at 131 Livingston Street, Brooklyn, New York. At the hearing, their Attorney represented the Parents/Student; represented the Department of Education.

THE DOE’S POSITION

The DOE presented no witnesses and rested.

PARENT’S POSITION

Parent’s counsel maintained that the Committee on Special Education (" CSE" ) failed to offer a procedurally valid and substantively appropriate IEP, placement, and service recommendations in a timely manner for the 20 19-2020 school year. Parents assert that the CSE failed to timely provide prior written notice, to conduct sufficient evaluations, to obtain sufficient clinical data, and to provide with a FAPE in compliance with the Individuals with Disabilities Education Improvement Act of 2004, and Section 504 of the Rehabilitation Act of 19 73.

The Parents unilaterally enrolled at as of the first day of school for the academic year 2019-2020 and seeks funding for this placement from the DOE. The Parents maintain that ’s placement at was appropriate for the 2019 — 2020 school year, addresses his academic and social/emotional needs and is reasonably calculated to enable him to receive educational benefits. The Parents maintain that there are no equitable considerations which would bar reimbursement. The Parents cooperated in the CSE review and placement process at all relevant times.

BACKGROUND

is a year old boy known to the Committee on Special Education (CSE) as a result of his significant educational needs. He has been the recipient of special education and related services under the auspices of the NYCDOE for several years.

is an -year old student who has been diagnosed with Attention Deficit- Hyperactivity Disorder Inattentive Type, a Language Disorder, Specific Learning Disabilities in Reading, Math and Written Expression, and a Developmental Coordination Disorder. According to Parents, although has strong vocabulary knowledge and is able to demonstrate solid reasoning in social situations, his ongoing learning issues in reading comprehension, reading fluency, decoding, math calculations, conceptual reasoning, and written expression persist due to his weaker language processing skills, slow processing speed, visual-spatial and visual-perceptual weaknesses, and attention/executive functioning deficits. Additionally, his anxiety further exacerbates his academic weaknesses.

In order to make appropriate academic and social progress, requires placement in a specialized education setting in a small, highly structured classroom, with a high student-to-teacher ratio, similarly functioning peers, and individualized attention and support from appropriately trained teaching professionals who can provide him with the language-based instruction and support he needs to address his language processing and executive functioning deficits and build his math, reading comprehension and written expression skills

PARENT’S CASE

, testified that she is the Assistant Director of at . Her educational background includes a Bachelor’s Degree in Sociology from and a Master’s Degree in Learning Disability from ; . She has all of the pre-requisite courses and tests required to be certified in special education. Ms. began her employment at in 1998 as an Assistant Teacher in the elementary school and was promoted to Head Teacher. After several years, she left and became a Learning Specialist and Coordinator of the . She returned to approximately 9 years ago as The Assistant Director of . Her duties include overseeing the functioning of the school, holding regular faculty meetings to supervise teachers, to work with students and their families. She also works with the teachers to help develop curriculum and oversee division-wide programming for She co-teaches a class called The Freshman Workshop and is involved in orientation, scheduling for examinations and generally oversees the school on a day-to-day basis.

Ms. observes teachers, students and works with the Counseling Department to provide any support required by the students. The team approach includes teachers, a speech-language therapist, a counselor and administrative person.

Miss stated that every teacher who is hired at receives a 2 week orientation; wherein, they are introduced to the methodology. teachers are required to have expertise in the field of instruction; however, they may or may not have sufficient special education experience as they receive information and support for children with learning disabilities. Some of the programs implemented include “Hochman” basic writing skills which is used from Kindergarten through 12" grade as well as an executive function practice.

is a Kindergarten through 12TM grade college preparatory program which is dedicated to supporting students with learning disabilities. It is a school and grounded in the values of equity, integrity and social responsibility. The witness further stated that is not a religious school; however, during the day there is a mediation/assembly once or twice a week wherein there is a silent meeting. There are approximately 400 students that attend in three separate locations. There are small class sizes which are differentiated and a multi-sensory approach supports learning needs of each student. The school accepts students with predominantly language based learning difficulties or disabilities including dyslexia, auditory processing, receptive/expressive language, struggles with memory and processing speed, dysgraphia and dyscalculia.

Ms. testified that she has known __ since he began at the school in 10TM grade; she has observed and worked with him and his teachers. She stated that the student has a broad range of needs in the learning domain; he struggles with attention, remembering procedures and requires re-direction. Upon his arrival at the school he was unable to do anything independently with respect to writing. During the course of the 3 years that he has been at the school, he received support, structure and repetition.

The witness stated that students are grouped, based upon their strengths and needs; they have their own unique scheduling. There are ongoing assessments including pre-tests and tests for every unit. The students take the ACT’s and/or the SAT’s and “end of year examinations”. There is a writing and reading assessment in 10TM grade to determine which skills have been mastered and which require further work. Ms. testified that for the 2019-2020 school year, °s schedule works on a 7 day cycle; this rotation levels out a holiday schedule and permits students to be observed at different times of the day.

Ms. stated that the students in _’s group had similar needs and were grouped together in each class except for senior electives. Ms. testified that STEM class (science, technology, engineering and math) is taught by Mr. . He has a Bachelor’s degree in Education and Psychology and a Master’s in Education — Special & General; there are 5 students with one teacher in a room. The projects and tasks are generated by the student’s interests.

completed all graduation requirements in math prior to the 2019/2020 school year. He attends an International Relations Course which is a social studies class, taught by Ms. . She has a Bachelors in Anthropology and a Teaching and Master Certification from grades 8 through 12. She received training in Special Education & Techniques within the school; there are 7 students in her class with one teacher. Ms. is a Teacher who has a Bachelor in Psychology from and a Master’s in Spanish from . The witness stated that multi-sensory instruction is used in all classes, particularly in language instruction; there are 7 students in the class. participated in a health class taught by Ms. who has a Bachelors of Arts through Cultural Studies in and a Masters in Education & Human Sexuality from the . She received special training in techniques and special education within the school; there are 11 students in that class. Additionally, students receive college guidance in a two year approach. It begins with the fall semester of the 11TM grade wherein the staff works with students to prepare them for their college applications and interviewing process. The student to staff ratio is approximately 12:2. Ms. was _ ’s Advisor; she has a Master’s in Education, a Bachelor’s in Advance Education and a Master’s Degree in Educational Leadership and College Guidance. There is an open study hall, whereby students can work in their advisory room alongside their advisory teachers to help with executive functions to insure that they are on track. There’s an opportunity for students to conference with their advisors on a regular basis. Goals can be re-set, revisited and/or changed depending upon how these students progress. There is a community break wherein students who can go no longer than 2 periods before they have a break, can spend time with friends, go down to the gym or get a snack. Ms. testified that was able to develop a remote learning program; wherein, during Covid a Google platform is being utilized. “Google Meet” provides on-line live sessions to the students. Adjustments were made to the schedule; there was one less class perday andin _ ’s case, physical education, health and college guidance would all happen on Friday. Additionally, all the students were able to meet and engage on Friday. The witness described 2 full periods of live lessons per day and 3 posted lessons which included 15 minutes of live instruction at the beginning of each posted lesson. This was the protocol in the Google classroom, which had a sign-in link to enable the school to maintain records of who was attending classes. She reiterated that everything is modified in order to meet the student’s needs. The witness stated that made progress in the 2019-2020 school year. Concededly, he still required support but made significant progress in his ability to be independent in his executive functioning and writing.

The next witness to testify was Mr. who stated that he is SFs advisor for the 2019/2020 school year and is also a Science teacher. He has been at for 3 years and has a Bachelor of Science in Biology from and a Master’s Degree in science from . He does not hold any professional licenses or certifications. He receives ongoing training at in special needs methodology and professional development. He stated that as an Advisor, it is his job to act as a liaison between the Administration and the students/families. He also stated that he acts as an Advocate for the students to assist them to navigate through high school on an “emotional caliper and academic level”.

Mr. stated that there are 8 students in the advisory class and that he meets with the students approximately 3 times per day. He also participates in study hall in the advisory rooms, wherein, the students the opportunity to do homework, or to leave the study hall and speak to a teacher if required. He described his role as a Proctor for Advisory Study Hall period and the study hall has students in 11" and 12" grades and ages range from 16 through 18. Mr. stated that he had a CoAdvisor working with him, Mr. , who is a teacher. He has a Master’s Degree in Finance, vocal performing and music education. He also receives ongoing special education training at . The classes are small and do not exceed

7 students with | teacher in the room; if the classes are larger there would be 2 teachers in the room. He stated that — suffers from ADHD and was visually distracted. The teachers “chunk the information” and break it down into terms of bite-sized manageable pieces”; repetition of ideas is emphasized to assist _ particularly in writing. He also described “Speech to Text” which is a program provided to all the students on their laptops. The program assists with their writing and affords them the opportunity to see any grammatical errors and allows them to syntax utilizing the technology. He also stated progress reports are generated at the end of every semester. The student’s teachers provide commentary about the student’s progress throughout the semester and he synthesizes it into a narrative. Mr. testified that made progress during the 2019-2020 school year; that he has become less dependent upon support and that he was becoming a more confident/capable student. He made progress in writing, social studies and English. The witness also stated that —_ has support from home wherein his father provided assistance with writing, english and social studies.

Mr. stated that the student participated in a remote learning program; he had some difficulty at first but eventually made the transition. The remote learning included rotating classes similar to the schedule that was in place wherein there would be some classes via live teaching and others utilizing asynchronous teaching. Assignments would be given at the beginning of the day and the students would need to complete them by the end of the day. He stated that the student’s biggest problems were organization. He worked with _ to plan out his days and to utilize a planner to keep his information organized. Lastly, Mr. stated that was an appropriate placement for — and that the school provided an adequate environment to help with his learning needs.

The parent, hereinafter referred to as stated that the CSE did not develop an IEP for his son prior to the 2019/2020 school year. He testified that he sent a letter in August of 2019 through his counsel and that the CSE did not respond. Accordingly, he placed his son at which is the same school that he attended in 2018/2019.

The parent stated that his son attended prior to attending ; however, he soon realized that his son required an environment with smaller classes and more structure. They secured a neuropsychological evaluation from Dr. who recommended that his son still required the support of a special education environment which he had been in since Kindergarten. He believed that provided the structured program with the people around him that cared.

The parent testified that — lives with him and his family in his apartment in New York City. He stated that the remote learning opportunity actually fostered the son’s ability to become more independent. Concededly his son had a bumpy start at the beginning of remote learning, however, improved as time went on. He stated the school did an incredible job to create special education programs that worked for his son. He believed that he signed an enrollment agreement for in February of 2019; however, he believed that there was an escape clause if an appropriate placement was located within the NYCDOE. The parent stated that the tuition was $68,980.00 and that the was paid in full; the DOE has paid $35,000.00 directly as per a Pendency Order and the balance was paid by the parent. Lastly, parent testified that had the DOE offered an appropriate placement that he would have accepted the offer.

DOE’S EVIDENCE

None

THE DOE’S CASE

None

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The purpose behind the Individuals with Disabilities Education Act (IDEA) is to (20 U.S.C. section 1400-1482) ensure that students with disabilities have available to them a FAPE; see Schaffer v. Weast, 126 S. Ct. 528, 531 [2005]; Bd. Of Education v. Rowley 458 S. CT. 176, 179-81 [1982]; Frank G. v. Bd. Of Edu. 459 F. 3d 356 371 92d Cir 2006). A FAPE includes special education and related services designed to meet the student’s unique need provided in conformity with a comprehensive written IEP (20 U.S.C. section 1401 [9] [D] 34 C.F.R. section 300.13 see 210 U.S.C. section 1414 ‘d’; 34

CFR Section 200-347

_; The student’s recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. section 1412 [a][5][A]; CFR section 300.13 [a][2][i], 200.1.116 [a][2]; 8 NYCRR 200.6 [a][1]; see Walczak v. Fla Union Free School Dist. 142 F. 3d 119, 132 [2d cir. 1998].

The legal standard applicable to request for payment for educational services such as in this case is well established. A Department of Education may be required to pay for educational services obtained for a child by the child’s parents if: 1. the services offered by the Department of Education were inadequate or inappropriate, 2. the services selected by the parents were appropriate and 3, equitable considerations support the parent’s claims (Sch. Comm. of Burlington v. Dept. of Educ. A471 U.S. 359 [1985]; Florence County Sch. Dist. Foru v. Carter, 510 U.S. 7 [1993]; Cerra v. Pawling Center, School 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 developed a proper IEP.”

Under the second criteria of the legal standard, the child’s parent bears the burden of proof with regard to appropriateness of the services, which the parents obtained, for the child for the current school year (Application of a Child with a Disability, Appeal No. 94-29; Application of the Bd. Of Education of the Monroe-Woodbury CSE, Appeal No. 93-34; Application of a Child with a Disability, Appeal No. 95-57, in order to meet that burden, the parent must show that the services were “proper under the act”, (IDEA) (Burlington 471 U.S. at 370) i.e. that the private school offered an educational program which met the child’s special educational needs (Application of a Child with a Disability, Appeal No. 94-29). The test for the parent’s private placement is that it is appropriate not that it is perfect (M.S. v Bd. Of Educ, 231 F 3d 96, 105 [2d Cit. 2000] cert. denied 532 U.S. 942 2001. The private school need not employ certified special education teachers, nor have its own JEP for the student. While parents are not held as strictly to the standard of placement in the LR as school districts are restrictiveness of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement (Rafferty v. Cranston Pub. School Comm. 315 F. 3d, 21, 26-17 [1st Cir. 2002].

The final criterion of an award of tuition reimbursement is that the petitioners’ claim is supported by equitable considerations (Carmel Centre Sch. Dist. V.V.P. 373 F Supp. 2d 402, 416 [S.D.N.Y. 2005] aff'd 2006 SL 2334140 (2d cir. 2006); (Frank G. 459 F, 3d at 363-64), Equitable considerations are relevant to fashion relief under the IDEA (Burlington 471 U.S. at 374; Mrs. C. v. Voluntown Bd. Of Edu. 226 F. 3d 60, 68 [2d Cit. 2000]; see Carter, 510 U.S. at 16 (noting that [c]ourts 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 non-compliance with state and federal regulations pending review the reasonableness of the parties’ positions and like matters (Wolfe v. Taconic Hills Cent. Sch. Dist. 167 F. Supp 2d 530, 533 [N.D.N.Y. 2001] citing Town of Burlington v. Dept. of Educ. 736 F. 2ds at 773, 801-02 [1st Cir. 1984] aff'd 471 U.S. 359 [1985]; with respect to equitable considerations, 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 or upon finding of unreasonableness with respect other action taken by the parents 20 U.S.C. section 1412 (a)(10)(C)Gil) Warren G. v. Cumberland Co. Sc. Dist. 190 F 3d 80, 86 (32d Cir. 1999); see Application of the Bd. of Edu. Appeal No. 04-102; Application of the Bd. Of Educ. Appeal No. 04-026). However, reimbursement may not be denied or reduced for failure to provide such notice where compliance with the notice required would likely result in physical or emotional harm 20 U.S.C. 14122 (a)(C)(iv)(1) (ce)(II)(bb). This hearing was requested pursuant to the Individuals with Disabilities Education Improvement Act of 2004, 20 U.S.C. §1404 et seg. (“IDEA”). “Congress enacted the IDEA ‘to ensure that all children with disabilities have available to them a free appropriate public education...designed to meet their unique needs... [and] to ensure that the rights of children with disabilities and parents of such children are protected.’” M.H. v. N.Y.C. Dep’t. of Educ., 685 F.3d 217m 223 (2d Cir. 2012) (quoting 20 U.S.C. §1400(d)(1)(A)-(B)). The IDEA mandates that students with disabilities must be provided with a FAPE tailored to meet their unique needs and one that is reasonably calculated to “enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas Cty. Sch. Dist., U.S. ___, 137 S.Ct. 988,999 (2017); Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176 (1982); SRO 17-007, p. 10. A focus on the particular child is at the core of the IDEA. Endrew F., 137 S. Ct. at 999. To meet the IDEA’s requirements, a school district’s program must provide special education and related services that is “ ‘specifically designed’ to meet a child’s ‘unique needs

6 999

and is reasonably calculated to enable the child to receive educational benefits. Endrew F., 137 S.Ct. at 999 (emphasis in original); M.H., supra, 685 F.3d at 224 (quoting Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 107 (2d Cir. 2007)).

A denial of FAPE can be one that is substantive or results from violations of the procedural protections of the IDEA and its implementing regulations. Procedural violations result in the denial of FAPE “if they ‘impeded the child’s right to a [FAPE},’ ‘significantly impeded the parents’ opportunity to participate in the decision-making process,’ or ‘caused a deprivation of educational benefits.’” 20 U.S.C. §1415(f)(3)(C)Gi); A.C. ex rel. MC. v. Bd. of Educ. of Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 (2d Cir. 2009); see also Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 659 (S.D.N.Y. 2005) (“Multiple procedural violations may cumulatively result in the denial of FAPE even if the violations considered individually do not.”) In sum, Row/ey stands for a two-part entitlement: eligible families are entitled to an IEP that both (a) affords a placement that, substantively, is “reasonably calculated” to afford meaningful educational benefit to the child, and (b) is developed in procedural accordance with the requirements of federal law.

In this jurisdiction, the standard by which the appropriateness of a private placement is measured was articulated by the Second Circuit in the case of Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364—65 (2d Cir. 2006). In Frank G., the Court recognized that parents seeking reimbursement for a private placement bear the burden of demonstrating that the private placement is appropriate, even if the proposal in the IEP is inappropriate (citing M.S., 231 F.3d at 104). The Court stated that a request for reimbursement will not be barred even though the private school the parents choose does not meet the IDEA definition of a FAPE (see 20 U.S.C. § 1401(9) or state education requirements (see Carter, 510 U.S. at 14).

No one factor is necessarily dispositive in determining whether parents' unilateral placement is appropriate and “reasonably calculated to enable the child to receive educational benefits.” Rowley, 458 U.S. at 207. 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. See Knable ex rel. Knable v. Bexley City Sch. Dist., 238 F.3d 755 (6th Cir.2001). 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. See M.S., 231 F.3d at 105. 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.” Row/ey, 458 U.S. at 188—89 (internal quotation marks omitted).

More recently, in 7.K. v. New York City Dep’t of Educ., 810 F.3d 869, 877-78 (2d Cir. 2016), the Second Circuit reaffirmed that parents “bear a lower burden” of demonstrating the appropriateness of a private placement than school districts do in establishing the provision of a FAPE. Indeed, parents are not barred from reimbursement simply because the private school they choose does not meet the IDEA definition of a FAPE. Once again, parents are only required to demonstrate that the private placement was appropriate, i.e., reasonably calculated to provide educational benefit, as evidenced by the progress made at the private school. The private school does not have to provide every related service on site, nor hire certified special education teachers, or even provide an IEP for the disabled student. Additionally, parents “may not be subject to the same mainstreaming requirements as a school board.” M.S., 231 F.3d at 105 (citing Warren G. v. Cumberland County Sch. Dist., 190 F.3d 80, 84 (3d Cir.1999). In sum, the test for the private placement “is that it is appropriate, and not that it is perfect.” C.L., 744 F.3d at 837 (quotation marks omitted); see also [.B. v. New York City Dep't of Educ., 2016 WL 1069679, at *17-18 (S.D.N.Y. Mar. 17, 2016). Parents put the DOE on notice of his placement and intent to seek reimbursement (See, 20 U.S.C. §1414(a)(10)(C)(iii)(I)(bb); In response, the DOE did nothing to address the Parents’ concerns or to develop alternative program or placement recommendations. Ms. M. ex rel. K.M. v. Portland Sch. Comm., 360 F.3d 267 (1st Cir. 2004) (parents are required to provide a school district with notice of their intent to unilaterally place their child and seek reimbursement to allow the district an opportunity to address the parents’ concerns).

“[E]quitable considerations are relevant in fashioning relief, and the court enjoys broad discretion in so doing. Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required.” Carter, 510 U.S. at 16, 114 S.Ct. 361 (citation omitted); see also A.C., 553 F.3d at 171 (“In fashioning relief, equitable considerations relating to the reasonableness of the action taken by the parents are relevant.” (citation omitted)). Statutory language in the IDEA specifically contemplates that a reimbursement award may be reduced or denied if the parents, inter alia, fail to timely notify the school district of their intent to enroll their child in a private school at public expense; fail to make their child available for an evaluation; or otherwise act unreasonably. See 20 U.S.C. §1412(a)(10)(C)(iii).4.D., 690 F. Supp. 2d at 215.

The Parent never engaged in any manner so as to impede the process. See [.B. v. New York City Dep't of Educ., 2016 WL 1069679, at *17-18 (S.D.N.Y. Mar. 17, 2016) (parent's claim for reimbursement may be denied upon a finding of a failure to cooperate with the CSE in the development of an IEP, or if the parent's conduct precluded the CSE's ability to develop an appropriate IEP, however, in the absence of evidence demonstrating obstructive conduct on the part of parents, equitable considerations militate in favor of an award of relief to parents who have been denied their rights under the IDEA); see also C.F. ex rel. R.F. v. Dep't of Educ., 746 F.3d 68 (2d Cir. 2014). Here, there is no evidence that the parents obstructed the DOE's proceedings and the DOE has pointed to no inequitable conduct on the part of the parents. Accordingly, under governing legal standards, Prong HI equitable factors do not preclude reimbursement.

I will not repeat the details of evidence which support and basis for my findings of fact; my decision is grounded in the testimony and the reasoning as set forth above. As per the due process complaint, given _’s needs, he requires a more supportive educational setting that can provide him with individualized support within a small and structured school program.

I find that the evidence established that I was making “meaningful educational progress” for a child with a disability and that equitable concerns favor the Parent and that there is no bar to recovery. The preponderance of the evidence in the record supports a finding that is reasonably calculated to enable the to receive meaningful educational benefits for the 2019-2020 school year, rendering it an appropriate placement.

The uncontroverted testimony from the Student’s teachers and evidence offered demonstrated that provides an education with supports attuned to the Student’s particular strengths, deficits, and abilities with respect to his academic needs.

In summation, the record establishes that: (1) that the DOE failed to offer a FAPE to (2) that the unilateral placement by the Parent was appropriate; wherein he was making progress and that (3) the equities weigh in favor the Parent. I find that the aforementioned failings and violations deprived — of a FAPE under the IDEA for the 2019-2020 school year, significantly impeded the Parent's opportunity to participate in the decision-making process regarding the provision of a FAPE and caused a deprivation of educational benefits.

ORDER

I order that the DOE pay:

1. reimbursement in sum of $33,694.00 for the 2019-2020 school year to the Parent for payments made to for the 2019-2020 school year (the balance of the tuition was paid by the DOE pursuant to a Pendency Order)

That payment shall made within 30 days of receipt of an invoice in a form satisfactory to the DOE.

Dated: September 16, 2020

Gary D. Peters, Esq.

Impartial Hearing Officer

PLEASE TAKE NOTICE

Within 35 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 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.” (8NYCRR279.2 [b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.

Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.

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Footnotes

[20] I 9-2020 school year. Parents assert that the CSE failed to timely provide prior written notice, to conduct sufficient evaluations, to obtain sufficient clinical data, and to provide with a FAPE in compliance with the Individuals with Disabilities Education Improvement Act of 2004, and Section 504 of the Rehabilitation Act of 19 73. The Parents unilaterally enrolled at as of the first day of school for the academic year 2019-2020 and seeks funding for this placement from the DOE. The Parents maintain that ’s placement at was appropriate for the 2019 – 2020 school year, addresses his academic and social/emotional needs and is reasonably calculated to enable him to receive educational benefits.