New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

186674;

Hearing Requested By: Parent

Date of Hearings: 10/11/19, 12/2/19, 1/3/20, 2/12/20, 3/3/20, 4/6/20 and

4/20/20

Record Close date: 5/15/20

Hearing Officer: James McKeever, Esq.

A P P E A R A N C E S: For the Student:

, Esq. Attorney

For the Department of Education:

, District Representative

PROCDURAL BACKGROUND

On September 9, 2019 the parent filed the within Due Process Complaint (“DPC”) alleging that the student was denied a free and appropriate public education (“FAPE”) by the Department of Education (

“Department”) from February 2019 through June of 2019 and during the 2019-2020 school year because the Department’s proposed program did not meet the student’s academic and social-emotional needs (Exhibit A,). Based on the alleged denial of FAPE, the parent is seeking tuition reimbursement for the student’s unilateral placement at the , with transportation (“Private School”). The parent is also seeking reimbursement for the student’s placement at during the summer of 2019, reimbursement for a private neuro-psychological evaluation and a compensatory educational award in the form of reimbursement for the cost of tutoring services that began in January of 2019 (Exhibit A).

The DOE contends that the student was offered a FAPE for the subject school year and requests that the parent’s DPC be dismissed.

The parent filed a second complaint of April 15, 2020 under case # , which was consolidated with the initial DPC under case #186674.

Extensions of the Compliance date:

The parties requested extensions of the compliance date in order to initially pursue settlement and then due to availability of witnesses and to complete the hearing, which were confirmed on the record. The orders of extension were served on the parties and will issued with the certification of the record.

FINDINGS OF FACT

Based upon the evidence adduced at the Due Process Hearing, I make the following findings of fact:

is a year-old girl classified as a student with a speech and language impairment under the IDEA (Exhibits A and C).The student has identified language and reading delays and requires a small class and an individualized curriculum (Exhibit D). The student also requires intensive and specialized reading instruction to address her phonological deficits

(Exhibit D).

The student was placed in an ICT kindergarten class as a general education student for the 2018-2019 school year.

On January 29, 2019, the parent provided the Department with a copy of the student’s recent neuro-psychological evaluation, which indicated that the student required additional supports (Exhibit D).

On February 7, 2019, the CSE develop an IEP and recommended ICT class with occupational therapy and speech and language services (Exhibit

23).

The student struggled to make progress during this school year, which was reflected in her low grades (Exhibits P, Q, K, and 17, Tr. 26, 80, 81, 91,

117).

During the time the parent obtained private tutoring services for the student, which were appropriate (Exhibit L).

During the summer of 2019, the student attended a specialized reading program at (Exhibit S).

On August 19, 2019, the parent provided the DOE notice that the student would be placed at the Private School for the 2019-2020 school year (Exhibits C and T).

The student attended a small self-contained classroom at the Private School. The curriculum at the Private was modified and individualized to meet the student’s academic needs. The Private school also provided small group instruction and a specialized reading program. The student obtained an educational benefit at the Private School during the subject school year (Exhibits M, N, and O).

The parent cooperated with the CSE process and provided the Department with at least 10-days notice of the student’s placement at the Private School before the student attended the school (Exhibit B). However, the parent did not provide the Department with notice of the student’s placement at before enrolling the student at same. The parent also did not request an Independent Educational Evaluation and/or challenge the Department’s evaluations prior to the filing of her DPC and requesting reimbursement for the neuro-psychological evaluation (Record generally).

CONCULSION OF LAW

Two purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[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]). 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; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir.

2005]).

The DOE bears the burden of proof in due process hearings brought under the IDEA in New York State (See, N.Y. Educ. Law Section 4404).

FAPE:

I find that the Department failed to offer the student a FAPE for the subject school years because the evidence shows that the student failed to make adequate process in the Department’s ICT class. Specifically, the evidence shows that the ICT class was too large to meet the student’s individual needs, which is evidenced by the student’s falling grades throughout the school year. I note that the Department was aware of the student’s deficits because the CSE had reviewed the student’s neuropsychological evaluation and, therefore, should have provided a smaller and more intensive educational setting. I also find that the Department’s assertion that the student’s absences were the cause of her regression is without merit in light of the educational profile referenced in the private neuro-psychological, which supports a finding that the student required a small class in order to obtain and educational benefit.

Private School Placement:

The evidence presented by the parent with respect to the student’s unilateral placement at the Private School demonstrates that the Private School was appropriate. Specifically, the evidence shows that the Private School provided direct and specialized educational instruction that was specifically designed to meet the student’s unique educational needs.

(Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65).

Thus, I find that the parent’s unilateral placement of the student at the Private School was appropriate (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]).

Equities:

A “major consideration in deciding whether [equity] is satisfied is whether the parents have cooperated with the [school district] throughout the process to ensure that their child receives a FAPE.” See N.R., on behalf of T.R., v. The Dept. of Educ. of the City Sch. Dist. Of the City of New York , 2009 WL 874061 (S.D.N.Y. March 2009). The Court looks at whether the parents obstructed the Department’s placement process or its ability to provide the student with a FAPE. See id. at 16. “In the absence of evidence demonstrating that the parents failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, equitable considerations generally support a claim of tuition reimbursement.” See SRO Decisions 05-030, 04-091, 04-049.

Here, the evidence shows that the parent provided the District with the requisite notice of the student’s placement at the Private School at least 10 days prior to actually enrolling the student at the Private school. The evidence also shows that the parent cooperated with the CSE process. I note the although the parent reserved a seat for the student in advance of the subject school year, this fact does not warrant a filing that the parent failed to cooperate with the CSE process. Thus, I find that the equities do not warrant a denial of tuition reimbursement for the student’s placement at the Private School (20 U.S.C. § 1412[a][10][C][iii][I]; see 34 C.F.R. § 300.148[d][1]).

The parent’s request for reimbursement of the cost of the student’s summer program is denied because the parent filed to provide the Department with any notice of the student’s placement at same. Thus, I find that the equities do not support reimbursement (20 U.S.C. § 1412[a][10][C][iii][I]; see 34 C.F.R. § 300.148[d][1]). Additionally, there is not evidence that the student required a 12-month program, and, as discussed below, I do not find that the parent is entitled to a compensatory services award for the student’s summer placement.

IEE

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 C.F.R. § 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 C.F.R. § 300.502[b][5]; 8 NYCRR 200.5[g][1]; see R.L., 363 F. Supp. 2d at 234-35). If a 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 C.F.R. § 300.502[b][2][i][ii];5 8 NYCRR 200.5[g][1][iv]; see, e.g., A.S. v. Norwalk Bd. of Educ., 183 5 , Appeal No. 08-039; , Appeal No. 07-126; , Appeal No. 06-067; , Appeal No. 05009; 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 C.F.R. § 300.502[b][3]; 8 NYCRR 200.5[g][1][v].

Here, there is no evidence that the parent ever requested that the Department fund an independent neuropsychological evaluation prior to the filing of her DPC. The parents also did not advised the Department that they disagreed with any of the Department’s evaluations prior to the filing of the DPC, which denied the Department the ability respond. As such, the parent’s request for reimbursement for the cost of the subject neuropsychological evaluation is denied. Compensatory Education:

Compensatory education is an equitable remedy that is tailored to meet the circumstances of the case. Wenger v. Canastota, 979 F. Supp. 147 (N.D.N.Y. 1997). While compensatory education is a remedy that is available to students who are no longer eligible for instruction, State Review Officers have upheld hearing officers awards of “additional services” to students who remain eligible to attend school and have been denied appropriate services, if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation. SRO 06-074.

Here, I find that based on the inappropriate program from February to June of 2019, which denied the student a FAPE, the student is entitled to compensatory educational services. I also find that the tutoring services obtain by the parent during was reasonable and appropriate to address the denial of FAPE for this portion for the 2018-2019 school year. Accordingly, the parent’s request for reimbursement of the private tutoring services is granted.

ORDERED

The Department shall reimburse the parents and/or directly pay the Private School for the cost of the tuition at the Private School for the 2019- 2020 school year, and reimburse the parents for all reasonable expenses related to transportation provided by the parents and provide transportation, if any, for the remainder of the school year.

The Department shall also reimburse the parent’s for the tutoring services the parent obtained in the amount of $3,580.

The parent’s request for reimbursement for the cost of the neuropsychological evaluation is denied.

The parent’s request for reimbursement for the cost of is denied.

Dated: Suffolk, New York

May 19, 2020

James McKeever

James McKeever, Esq.

Impartial Hearing Officer

PLEASE TAKE NOTICE

Within 40 days of the receipt 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 see review shall be served upon the school district not less than 10 days before service of a copy of the petitioner for review upon such school district, and within 25 days from the date 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 dated of the decision sought to be review. 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 rights to appeal this decision.

Directions and sample forms can be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.

Office of State Review website: www.sro.nysed.gov/appeals.htm.

Department'

New York City Department of EducationExhibit ListStudent:

Case Number: # 186674 Hearing Date: April 20, 2020

DOE

DATE DESCRIPTION

Exhibit

1 11/19/18 Initial Referral

2 11/26/18 Request for Physical Exam

3 11/27/18 Authorization for Release of Records

4 11/30/18 Psychological Evaluation

5 11/30/18 Authorization for Release of Records

6 12/3/18 Progress Report

7 12/11/18 Notice of Social History

8 12/12/18 Consent for use of Electronic Mail

9 12/12/18 Referral for Evaluation

10 12/21/18 Kindergarten Progress Report

11 1/4/19 Authorization for Release of Records

12 1/4/19 PT Report

13 1/8/19 OT / PT Parent Checklist

14 1/9/19 PT Evaluation

15 1/9/19 Authorization for Release of Records

16 1/15/19 OT Report

17 1/16/19 OT Evaluation

18 1/24/19 Authorization for SL Svcs

19 1/25/19 Speech-Language Screening

20 1/29/19 CSE Meeting Notice

21 2/6/19 Classroom Observation

22 2/7/19 Speech-Language Evaluation

23 2/7/19 IEP

24 2/10/19 Prior Written Notice of Recommendation

25 2/10/19 Consent for Initial Provision of Svcs

Authorization to Attend 26 2/14/19

27 4/2/19 Speech-Language Referral

Request for Pupil Personnel Team Consultation 28 11/1/2018

Parent’s Exhibits:

A A Demand for Due Process with Email Confirmation 09/03/19 07 03/25/20

B B. Amended Demand for Due Process with Email 12/26/19 08 03/25/20

Confirmation C C. 10- Day Letter with Email Confirmation 08/19/19 03 03/25/20 D D. Clinical Neuropsychological Evaluation by 11/00/18 39 03/25/20

, Psy. D. E E. NYC DOE Occupational Therapy and Physical Therapy 01/00/19 18 03/25/20

Evaluations F F. Speech and Language Progress Report by 01/05/19 01 03/25/20

M .A., CCC-SLP

G G. NYC DOE Speech-Language Evaluation 02/07/19 11 03/25/20 H H. NYC DOE Consent for Initial Provision of Services 02/10/19 01 03/25/20 I I NYC DOE Prior W ritten Notice 02/10/19 03 03/25/20 J J. NYC DOE Letter Re: Need for Prescription for OT/PT 02/12/19 01 03/25/20

Services

K K. NYC DOE IEP 02/12/19 17 03/25/20

L l. Tutoring Progress Report by 03/01/19 01 03/25/20 M M. Homeroom Report 01/31/20 18 03/25/20 N 01/31/20 09 03/25/20

n. Occupational Therapy Report O o. Speech and Language Report 01/31/20 02 03/25/20 P P. NYC DOE Term 2 Explanation of Grades 2018/2019 02 03/25/20 Q Q End of Year Report Card and IEP 2018/2019 13 03/25/20 R R. Term 1 Report Card 2018/2019 02 03/25/20 S S. School Progress Report 2019 04 03/25/20 T T. Enrollment Contract 2019/2020 08 03/25/20