New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACTS & DECISION - DOE DEFAULT & INQUEST

Case Number: 187891

NYS Identifier Number N/A Student's Name: [“Confidential”]

Date of Birth:

District:

Hearing Requested By: Parent

Dates(s) of Hearing: 02/04/20

Actual Record Close Date: 06/29/20

Hearing Officer: Edgar De Leon

NAMES AND TITLES OF PERSONS WHO APPEARED

Title For Date Attorney DOE 02/04/20 Attorney PARENT 02/04/20

Mother PARENT 02/04/20 School Supervisor PARENT 02/04/20

On September 18, 2019, I was appointed the Impartial Hearing Officer (“IHO”) to conduct an impartial hearing pursuant to the Individuals with Disabilities Education Act ( “IDEA”), 20 USC § 1415(f)(3), Article 89 of the New York State Education Law, Part 200 of the Regulations of the New York State Commissioner of Education and Section 504 of the Rehabilitation Act of 1973, concerning a dispute between the Parent of a (_ )

year old student attending a private school and the New York City - Department of Education (“DOE”) - District: , regarding the student’s special education program. I was appointed after the recusal of at least one other IHO. After having adjournments granted at the request of and with the consent of the parties, or for good cause, the impartial hearing was held on February 4, 2020. A list of the persons appearing at the hearing and the documents received in evidence in annexed hereto.

BACKGROUND

This case was initiated as the result of a written Due Process Complaint (“DPC”) filed by the student’s Parent via her attorney(s), and received at the Department of Education Impartial Hearing Office (“DOE-IHO”) on or about September 5, 2019. The DPC is carried under New York City (“NYC”) Case No. 187891. The Parent in this case alleges that the student has been denied a “free and appropriate public education” (“FAPE”) for the 2019-2020 school year. At the impartial hearing, the Parent seeks the following relief: (a) An order that the DOE fund the student's tuition and related costs, including transportation at the private school for the student’s attendance during the 2019-2020 school year; and (b) Attorney fees; and (c) — Any other relief the IHO find just and proper.

At the impartial hearing, the Parent requested a full hearing on the merits. (T-9-10)

THE DOE’S CASE

The DOE did not call any witnesses to testify on its behalf, did not submit any documents in evidence (T-5-7 & 20), and did not object to the Parent's exhibits. (T-18-9) The testamentary and documentary evidence for and against the DOE’s case in default is incorporated in the decision below.

THE PARENT’S CASE

The Parents called (2) witnesses to testify on her behalf, who testified on direct examination via affidavit pursuant to 8 NYCRR 200.5[j][3][xii][f]. (P-H & P-l) The DOE did cross examine the Parent's witnesses. (T-24 & 37) The Parent also submitted (9) documents in evidence. The DOE did not object to any of the Parent's documents being received in evidence. (T-18-9) The testamentary and documentary evidence for and against the Parent's case is incorporated in the decision below.

FINDINGS OF FACTS & DECISION - DOE DEFAULT & INQUEST

IDEA ensures that students with disabilities are afforded a free and appropriate public education (“FAPE”). (20 U.S.C. § 1400 & Schaffer v. Weast, 126 S.Ct. 528 [2005]) A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP. (20 U.S.C. 1401(8) & 141(d) and 34 C.F.R. § 300.13) The burden of proof in an administrative hearing challenging an IEP is properly placed upon the party seeking relief. (Schaffer, 126 S.Ct. 528, 537)

The DOE may be required to reimburse Parents for their expenditures for private educational services obtained for a student, if the services offered by the DOE were inadequate or inappropriate, the services selected by the Parents are appropriate and equitable considerations support the parent’s claim. (Sch. Comm. Of Burlington v. Dept.

of Educ., 471 U.S. 359 (1985), Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993), Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2"° Cir. 2005])

The first step is to determine whether the DOE offered to provide the student a FAPE. (Mrs. C. v. Voluntown, 226 F.3d 60, 66 [2° Cir. 2000]) A FAPE is offered to a student when (a) the DOE complies with procedural requirements set forth in IDEA and (b) the IEP developed by the CSE through the procedures set forth in IDEA, is reasonably calculated to enable the student to receive educational benefits. (Bd. Of Educ. V. Rowley, 458 U.S. 176, 206-7 [1982]) The student’s recommended program must also be provided in the least restrictive environment (“LRE”). (20 U.S.C. § 1412(a)(5)(A), 34 C.F.R. § 300.550(b), 8 NYCRR §200.6(a)[1])

The Parent bears the burden of showing that the private school placement selected is appropriate. (SRO Nos.: 95-57, 94-29 & 93-34) The Parents must show that the private school placement offers an educational program that meets the student’s special education needs. (Burlington, 471 U.S. at 370 & SRO No. 94-20) The private school need not be approved by the state educational agency to provide instruction to children with disabilities. (Florence County School District Four et. al. v. Carter, 510 U.S. 7 [1993]). It is also not required that the private school employ certified special education teachers or have its own IEP for the student. (SRO No. 94-20)

Finally, the IHO must consider whether equitable considerations favor the Parents’ request for tuition reimbursement. State Review Officer (“SRO”) Decision 06-004 holds:

Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M. C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required"]). Such considerations "include the parties’ compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties’ positions, and like matters” (Wolfe _v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff'd, 471 U.S. 359 [1985]). With respect to equitable considerations, a parent may be denied tuition reimbursement 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 (Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80, 86 [3rd Cir. 1999]; see Application of the Bd. of Educ., Appeal No. 04-102; Application of the Bd. of Educ., Appeal No. 04-026). In the absence of evidence demonstrating that petitioners failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, or failed to give proper notice, equitable considerations generally support a_ claim of _ tuition reimbursement. (Application of a Child with a Disability, Appeal No. 04-049).

In Burlington, the Court found that Congress intended retroactive reimbursement to Parents by school officials as an available remedy in a proper case under the IDEA.

(Burlington, 471 U.S. at 370-71, Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007] and Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186 at 192 [2d Cir. 2005]) “Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance” had it offered the student a FAPE. (Burlington, 471 U.S. at 370-71, 20 U.S.C. § 1412[a][10][C]Iii] and 34 C.F.R. § 300.148)

The DOE failed to call any witnesses to testify on its behalf, failed to submit any documents in evidence, failed to file and serve an answer or serve a “Prior Written Notice” in this case, and did not object to the Parent's documentary evidence. (See 20 U.S.C. 1415(f)(3)(e) & T-5-7, 20 & 18-9) “Prior Written Notice’ means written statements developed in accordance with Section 200.5(a) of the Regulations of the Commissioner of Education, and provided to the parents of a student with a disability a reasonable time before the school district proposes to or refuses to initiate or change the identification, evaluation, or educational placement of the student or the provision of a free appropriate public education to the student.

It is noted that silence in a responsive pleading is an admission, and a counterclaim in federal practice is compulsory in the answer or deemed waived. (See New York Practice, 4°" Edition §§223 & 224, citing Federal Rules of Civil Procedure, Rule 13(a) & Cummings v. Dresher, 18 N.Y.2d 105, 108, 271 N.Y.S.2d 976, 218 N.E.2d 688, 690 [1966])

The DOE has the burden of production and persuasion at an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of production and persuasion regarding the appropriateness of such placement.

(See Educ. Law § 4404[1][c]) Here, the DOE did not proffer any evidence that it has offered the student a FAPE. (Supra) This amounts to a concession that the agency did not offer the student a FAPE. As previously noted, the DOE did not serve and file an answer in the case, nor did the agency serve the Parent with “Prior Written Notice’, which would provide either a denial of the Parent’s allegation, or some explanation for the agency’s failure to provide a FAPE. (See 20 U.S.C. 1415(f)(3)[e])

It would be fundamentally unfair to allow either party to rely solely on the submission of documents in meeting its burden under law, where those documents are rife with double, triple and even unidentified hearsay sources, that cannot be cross examined. While compliance with technical rules of evidence is not required in administrative hearings, under certain circumstances, the receipt of hearsay evidence may be so prejudicial as to have a tendency to deprive a party of fair hearing. (See Strain _v. Sarafan, 57 A.D.2d 525, 393 N.Y.S.2d 572, N.Y.A.D. (1977), where the hearsay testimony was of vital importance and should have been subjected to cross-examination by the petitioner...the petitioner was deprived of a meaningful hearing,_ Dukes v. New York City Housing Authority, 63 A.D.2d 690, 404 N.Y.S.2d 889, N.Y.A.D.

(1978), holding that the excessive reliance on hearsay evidence effectively denied petitioner the right to cross-examine adverse witnesses, Claim of Evans, 254 A.D.2d 564, 678 N.Y.S.2d 696, N.Y.A.D. (3 Dept. 1998), (where in an unemployment compensation proceedings, administrative law judge (‘ALJ’) properly exercised discretion to exclude hearsay evidence to protect employer's fundamental right of cross-examination, where claimant proffered written hearsay statement, authored by acquaintance of the employer’s president, which allegedly indicated that claimant did not resign but was fired, but the acquaintance failed to answer subpoena directing him to testify at hearing, thereby denying employer the opportunity to cross-examine him on the statement, and Alvarado v. State of New York, 110 A.D.2d 583, 488 N.Y.S.2d 177 (1*' Dept. 1985), holding that a license suspension hearing against a boxer and his managers was faulty because of a lack of an opportunity “to cross-examine certain witnesses whose reports were introduced into evidence without their testifying, in violation of SAPA Section 306, subd. (3).” (Id. at 585, 488 N.Y.S.2d at 179)

However, here the DOE did not present a case-in-chief and did not controvert the documentary evidence submitted by the Parent. (Supra) The credibility of the documentary evidence was not rebutted by the agency and the documentary evidence is clearly relevant and material to the issues to be determined. I find the documentary and testamentary evidence submitted by the Parent in this case to be credible and uncontroverted in this case.

As noted above, the DOE’s failure to present a case at the hearing is a concession that it denied the student a FAPE and that if the Parent meets her burden under Schaffer _v. Weast, the Parent is entitled to the proven relief she seeks. This leaves, as the primary issue to be resolved through impartial hearing, what relief and/or compensatory education remedy, if any, is available and appropriate to remediate the denial of a FAPE. (SRO No. 17-033) It is noted that the DOE was required under the due process procedures set forth in New York State law, to address its burdens in the due process hearing context by describing its views, based on a fact-specific inquiry set forth in an evidentiary record, regarding an appropriate relief and/or compensatory education remedy that most reasonably and efficiently could place the student in the position that he would have been but for the denial of a FAPE. (See Doe v. E. Lyme Bd.

of Educ., 790 F.3d 440, 457 [2d Cir. 2015], cert. denied, 136 S. Ct. 2022 [2016], quoting Reid v. Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005] [noting that the "ultimate award [of compensatory education] must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place'|) When, as here, the DOE does not present any case at the hearing, the hearing, the hearing process essentially becomes an “inquest” as to the appropriate relief.

The DOE has conceded liability by failing to present a case and meet its burden under the law. New York State law has placed the burden of production and persuasion at an impartial hearing on the school district, unlike states which align the burden of production and persuasion consistent with Schaffer v. Weast, 546 U.S. 49, 58-62 [2005]. It is not an IHO's responsibility to craft the DOE’s position regarding the primary issue in the case, for the denial of FAPE. The undersigned finds that the DOE failed to adhere to the requirements of the law, has denied the student in this case a FAPE and that the Parent may be entitled to the proven relief she has requested. The DOE has defaulted on its statutory obligation and I find that the student was denied a FAPE for the 2019-2020 school year.

The party who defaults in concedes only liability and not the amount of “damages.” (See CPLR § 3215, First Nat. Bank & Trust Co. v. Classic Collateral Corp., 44 A.D.2d 868, 355 N.Y.S.2d 504 (1974), James _v. Powell, 19 N.Y.2d 249, 279 N.Y.S.2d 10, 225 N.E.2d 741 (1967), McClelland v. Climax Hosiery Mills, 252 N.Y. 347, 169 N.E. 605 (1930) The DOE’s default constitutes an admission of liability, but not of damages, which remains the Parent's burden to prove. (See Fed. R. Civ. P. 55 & City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114 at 128 [2d Cir. 2011])

I now turn to the question of whether the DOE should be required to reimburse and/or pay for the private educational services and relief requested for the student, because the services offered by the DOE were inadequate or inappropriate, and the relief sought and services selected by the Parents are appropriate and equitable considerations support the Parents’ claim. (Burlington, Florence and Cerra, Supra) The Parent need only demonstrate that the requested services are specially designed to meet the unique needs of the student, supported by such services as are necessary to permit him to benefit from the instruction. (See Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65)

A private school placement must be "proper under the Act." (See Carter, 510 U.S. at 12, 15 and Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs. (See Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129 and Matrejek, 471 F. Supp. 2d at 419)

A Parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement. (See Carter, 510 U.S. at 14) The private school need not employ certified special education teachers or have its own IEP for the student. (See Carter, 510 U.S. 7; SRO No. 08-085; 08-025; 08-016; 07-097; 07-038; 02-014 and 01-105) Parents also need not show that the placement provides every special service necessary to maximize the student's potential. (See Frank G., 459 F.3d at 364-65) When determining whether the Parents’ unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits." (See Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]])

There is no request for compensatory educational services in this case and in either case an IHO cannot determine the amount of compensatory education that a student requires unless the record provides him with sufficient “insight about the precise types of education services the student needs to progress.” (Mary McLeod Bethune Day Acad.

Pub. Charter Sch., 555 F. Supp. 2d 130, 50 IDELR 134 [D.D.C. 2008] citing Branham v. District of Columbia, 427 F.3d 7, 44 IDELR 149 [D.C. Cir. 2005]) Pertinent findings to enable an IHO to tailor the ultimate award to the student’s unique needs should include the nature and severity of the student’s disability, the student’s specialized educational needs, the link between those needs and the services requested, and the student's current educational abilities. (See Branham v. District of Columbia, 427 F.3d 7, 44 IDELR 149 [D.C. Cir. 2005], see also Mary McLeod Bethune Day Acad. Pub. Charter Sch., 555 F.

Supp. 2d 130, 50 IDELR 134 [D.D.C. 2008]) The Parent has the burden of “propos[ing] a well-articulated plan that reflects the student’s current education abilities and needs and is supported by the record.” (See Phillips v. District of Columbia, 2010 WL 3563068, at *6, 55 IDELR 101 [D.D.C. Sept. 13, 2010] quoting Friendship Edison Pub. Charter Sch. Collegiate

Campus v. Nesbitt (“Nesbitt II”), 583 F. Supp. 2d 169, 172, 51 IDELR 125 [D.D.C. 2008])

State regulations provide in relevant part that "[t]he decision of the impartial hearing officer shall be based solely upon the record of the proceeding before the impartial hearing officer and shall set forth the reasons and the factual basis for the determination. (See 8 NYCRR 200.5]jJ[5IIv])

Shaffer decision of the Supreme Court of the United States issued on November 14, 2005, held as follows:

“We hold no more than we must to resolve the case at hand: The burden of proof in an administrative hearing challenging an IEP is properly placed upon the party seeking relief. In this case, that party as Brian, as represented by his parents. But the rule applies with equal effect to school districts: If they seek to challenge an IEP, they will in turn bear the burden of persuasion before an ALJ.

The judgment of the United States Court of Appeals for the Fourth Circuit is, therefore affirmed.” (Supra, Ill, [2) (See Schaffer v. Weast, 546 U.S. 49, 58-

62 [2005] (emphasis added)

Here, for the reasons stated above, the DOE did not meet its burden under the law. (Supra) I find that the student has been denied a FAPE for the 2019-2020 school years.

A gross violation of the IDEA may result from the denial of, or exclusion from, educational services for a substantial period of time. (See SRO No. 04-074, citing Mrs.

C. v. Wheaton, 916 F.2d 69 (2d Cir. 1990), Burr v. Ambach, 863 F.2d 1071 (2d Cir.

1988) and SRO No. 02-047.) In Burr, exclusion from educational services for a substantial period of time was defined as “almost two years.” (See SRO No. 02-033 citing Burr “...after a severely disabled student's school was closed, prolonged delays in the administrative proceedings in obtaining a new placement resulted in a complete exclusion from any educational placement for the student for almost two years.” I find that the violation in this case does not meet the standard of a “gross violation” of FAPE.

I now turn to the question of whether the relief sought by the Parent is appropriate. As noted above, the DOE may be required to reimburse and/or pay for the private educational services and relief requested for the student, because the services offered by the DOE were inadequate or inappropriate, and the relief sought and services selected by the Parents are appropriate and equitable considerations support the Parent’s claim. (Burlington, Florence & Cerra, Supra) As previously noted, the Parent need only demonstrate that the requested services are specially designed to meet the unique needs of the student, supported by such services as are necessary to permit her to benefit from the instruction. (Gagliardo & Frank G., Supra)

In sum, substance and relevant part, the evidence in this case is as follows: The first witness for the Parent is the educational supervisor at the private school. (P-l) She stated the following:

3.: [PRIVATE SCHOOL NAME] is a private K-12 special education school that is accredited by the Middle States Association of Colleges and Schools as well as the National Independent Private Schools Association (NIPSA) and serves students with learning disabilities in the areas of reading, writing, and math in addition to attention, sensory and social challenges.

5. The students who attend [PRIVATE SCHOOL NAME] have a range of learning disabilities such as dyslexia, reading disabilities, writing disabilities, math disabilities, sensory processing disorders, auditory processing disorders, executive functioning challenges, speech and language impairment, ADHD, and anxiety.

6. Approximately sixty-nine (69) students ages fourteen through nineteen attend [PRIVATE SCHOOL NAME] in grades 8-12.

7: [PRIVATE SCHOOL NAME] is a small, structured, multi-sensory, language-based, academic program with a strong emphasis on social skill development. An important component of the school's programming is to help its students recognize their own learning styles and communicate their needs in a productive manner to peers, teachers, and family. By building critical thinking skills and encouraging experiential learning, students are practicing to become reflective and effective self-advocates.

9. The [PRIVATE SCHOOL NAME] utilizes a collaborative educational team which consists of all of a student's head teachers, assistant teachers, school psychologists and/ or social workers, a speech-language pathologist, an occupational therapist and specialists who meet regularly to discuss each student's progress and review classroom dynamics.

10. All head teachers at the campus have a Master's degree in Special Education or a Master's degree in their content area (for instance, Science) and the assistant teachers all have at minimum Bachelor degrees. Often Assistant Teachers are in the process of getting their Masters and sometimes our Assistant Teachers have their Masters in hopes of getting a head teaching position.

14. We offer parent training twice per year and as needed throughout the school year.

16. I have known [STUDENT NAME] since September 2018, am familiar with his disability, and interact with him on a daily basis. It is my understanding that he was admitted pursuant to the admissions procedure for the campus described above, in April 2017. [STUDENT NAME] began attending [PRIVATE SCHOOL NAME] as a 7" grade student and became a student at the campus in September 2018. Prior to his attendance at the campus, | observed [STUDENT NAME] in his classes at the campus, participated in several meetings with the Educational Supervisor for grades 5-7 and related services providers at the campus, and reviewed reporting documentation that was generated during his time at the campus.

17. Per an evaluation that was conducted on August 22, 2016, [STUDENT NAME] is diagnosed as having ADHD, combined type (moderate), Mathematics Disorder (severe), Disorder with Impairment of Written Expression (moderate), Dyslexia, and Adjustment Disorder with Anxiety and Depression, all of which impact his ability to access an education. [STUDENT NAME] requires a variety of individualized supports and strategies to assist him in accessing the curriculum and to ensure his academic, social and emotional progress.

18. During the 2019-2020 school year, [STUDENT NAME] receives instruction in language arts, writing, social studies, science, math, art, and social skills. In addition, [STUDENT NAME] receives push-in speech-language therapy. [STUDENT NAME]'s 1st semester Writer's Composition t/Public Speaking class was taught by a Speech-Language Pathologist five days per week. During the 2nd semester, [STUDENT NAME] will take Responsibilities and Choices 1, a social skills class that is co-taught by the speech-language pathologist and a school psychologist that focuses on developing friendships, problem-solving and decision-making. [STUDENT NAME] also has an occupational therapist push into his art class once a week.

19. [STUDENT NAME]'s classes have between seven and eleven students. [STUDENT NAME] has access to a laptop in all of his classes and Smart Board technology is also used in the classroom to enhance [STUDENT NAME]'s learning experience.

20. The ages of the students in [STUDENT NAME]'s classes are no more than three years apart in age. We determined [STUDENT NAME]'s classroom placement based on the academic functioning as well as the social functioning of the students. He is grouped with students who have similar profiles.

23. [STUDENT NAME] receives speech and language therapy from . She is certified as a speech and language pathologist by New York State. Ms. provides speech-language services to [STUDENT NAME] as a push in service. During the first semester, Ms. provided this service five times per week as the lead instructor for [STUDENT NAME]'s Writer's Composition t/Public Speaking class.

During the second semester, Ms. will push-into [STUDENT NAME]'s Responsibilities and Choices 1 class approximately three times per week.

24. [STUDENT NAME] receives counseling services from . Ms. is a New York State licensed Social Worker. Ms. provides individualized pull-out counseling services to [STUDENT NAME] one time per week. [STUDENT NAME] also participates in a weekly peer counseling/social skills group that is led by , a nationally and New York State certified School Psychologist, and consists of six other students. During the 2nd semester, [STUDENT NAME]'s Responsibilities and Choices 1 class will be facilitated by , a nationally and New York State certified School Psychologist.

30. At [PRIVATE SCHOOL NAME], progress reports are produced two times per year. [STUDENT NAME]'s most recent progress report is in the process of being written by [STUDENT NAME]'s teachers, as the first semester ended on Tuesday, January 28, 2020. All of [STUDENT NAME]'s progress reports show accurate descriptions of his educational program and progress and his grades are clear indications of this progress. (P-l)

On cross examination, the witness testified that highest number of the students in the student’s class for this year would be (11). (T-26) In his academic classes, the student’s largest class consist of (10) students. (T-27) The witness testified that sometimes the student presents behaviors that could potentially be a bit more challenging, but he is not a behavior problem. (T-30) They have enough support within the structure of their program that makes it so the student does not need someone with him all the time. (T-31) The student does not have assistive technology to help with his hearing. (T-33) The student does not require an FM Unit because their classes are small, the physical room space is small, and the school is quiet. (T-33) There was no re-direct examination of the witness. (T-34)

The Parent’s second and final witness is the student's mother. (P-H) She testified as follows:

4. The New York City Department of Education has classified [STUDENT NAME] as a student with a disability. The last IEP that they gave him in 2016 said he had a Speech or Language

Impairment.

5. [STUDENT NAME] has a history of chronic ear infections, Eustachian

Tube Dysfunction, conductive hearing loss, and chronic rhinitis and neurofibromatosis, which is a disorder that causes tumors to form on nerve tissue. I have learned that the Eustachian tube is the auditory tube that connects the throat to the middle ear. These issues cause [STUDENT NAME]'s hearing to be muffled. [STUDENT NAME] has been under the care of a pediatric otolaryngologist and head/neck surgeon. We have treated [STUDENT NAME]'s hearing loss with nasal steroids.

6. [STUDENT NAME] is currently diagnosed with Dyslexia, Language Disorder, Severe Mathematics Disorder, Attention Deficit and Hyperactivity Disorder ("ADHD"), and Anxiety.

25. Through my online research, | discovered the [PRIVATE SCHOOL NAME]. After bringing [STUDENT NAME] in for an admissions screening and a tour, | learned that the [PRIVATE SCHOOL NAME] closely matched the description of an appropriate school setting in Dr. 's report.

Unable to secure placement in a State-approved nonpublic school and without a School Location Letter from the Department for the 2017-2018 school year, | unilaterally enrolled [STUDENT NAME] at [PRIVATE SCHOOL NAME] for the 2017-2018 school year. He made substantial progress while attending [PRIVATE SCHOOL NAME] that school year.

The Department then failed to convene the CSE to develop an IEP for the 2018-2019 school year, so [STUDENT NAME] continued attending [PRIVATE SCHOOL NAME].

25. Through my online research, | discovered the [PRIVATE SCHOOL NAME]. After bringing [STUDENT NAME] in for an admissions screening and a tour, | learned that the [PRIVATE SCHOOL NAME] closely matched the description of an appropriate school setting in Dr. 's report. Unable to secure placement in a State-approved nonpublic school and without a School Location Letter from the Department for the 2017-2018 school year, | unilaterally enrolled [STUDENT NAME] at [PRIVATE SCHOOL NAME] for the 2017-2018 school year. He made substantial progress while attending [PRIVATE SCHOOL NAME] that school year. The Department then failed to convene the CSE to develop an IEP for the 2018-2019 school year, so [STUDENT NAME] continued attending [PRIVATE SCHOOL NAME].

26. [STUDENT NAME] had performed strongly in his academic coursework at [PRIVATE SCHOOL NAME] by the end of the 2018-2019 school year. | learned that [STUDENT NAME] had improved in reading comprehension, including drawing inferences and making predictions while reading grade level text. Spelling and grammar have always been an area of weakness for [STUDENT NAME]. When necessary, the [PRIVATE SCHOOL NAME] provided [STUDENT NAME] with a scribe to help him complete his class work faster. On assignments that required written expression, [STUDENT NAME] received direct instruction through [PRIVATE SCHOOL NAME]'s "Teaching Basic Writing Skills" program. | liked that his Introduction to Writer's Composition & Public Speaking course was actually taught by the Speech-Language Pathologist with the help of an Assistant Teacher. [STUDENT NAME] was finally able to write a short essay. His progress in reading and writing carried over into Social Studies. In Math, the teacher took time to "pre-teach" certain vocabulary so that new words would stick in [STUDENT NAME]'s mind. The exposure to new vocabulary prior to the class lesson helped [STUDENT NAME] keep up with the pace of the class. | think the extra practice and repetition was also helpful to [STUDENT NAME] in understanding new math concepts. In Life Science class, [STUDENT NAME] enjoyed the hands-on, interactive activities. His Science teacher explained to me that the variety of multisensory tools helped [STUDENT NAME] remain engaged in the coursework. Over the years, [STUDENT NAME] has struggled with active listening and maintaining his attention. I was glad to hear that the [PRIVATE SCHOOL NAME]'s multisensory approach to teaching was working well for [STUDENT NAME]. The small class size has been very important for [STUDENT NAME]'s learning. He has not had more than 10 classmates in his classes. With fewer students, there are fewer distractions in the classroom. The smaller class size also allows [STUDENT NAME] to receive one-on-one support from the teacher.

27. Over the past year, I have noticed improvement in [STUDENT NAME]'s ability to regulate his own behavior. Emotional regulation is still very much a work in progress for [STUDENT NAME], however, it seems like he is displaying fewer interfering behaviors in class, and he is better able to manage moments of emotional distress. | credit [PRIVATE SCHOOL NAME]'s Classroom Management System which gives [STUDENT NAME] motivation to stay focused and engaged. I also believe that the intensive social skills instruction and communication training that are integrated throughout [STUDENT NAME]'s schedule have made the most impact. For example, his Core Skills course was taught by both the Speech-Language Pathologist and School Psychologist. He also received group counseling and social skills training in his Forum class, in addition to one-to-one counseling. [STUDENT NAME] was better able to recognize when he needed a break. His counselor, one of the School Psychologists, allowed flexibility in [STUDENT NAME]'s schedule to allow [STUDENT NAME] to take as few, or as many, one-on-one counseling breaks, as necessary. [STUDENT NAME] no longer used counseling as a work avoidance tactic. Rather, he used his counseling breaks in a mature, more independent manner. The proof of progress has really been in his grades. He ended his eighth-grade year with grades of only As and Bs.

31. [STUDENT NAME]'s academic progress has continued into the current

2019-2020 school year. Compared to his performance at his previous schools, [STUDENT NAME]'s grades during the first term of ninth grade were stellar. His lowest grade was a B+. (P-H)

On cross examination, the witness conceded that the student has partial hearing loss in his right ear. (T-37-8) This impacts the student’s ability to move around in a train station. (T-38) The student can cross the street by himself and move around the neighborhood without adult supervision. (Id.) The student gets picked up by a bus to go to school, or she travels on the subway with him. (Id.) The student can take the bus by himself. (T-39) The CSE has provided the student with door-to-door transportation.

(T-41) The student has had door-to-door transportation for the past three years since he has been going to the private school. (T-43) There was no -re-direct examination of the witness. (Id.)

I find that the record above sufficiently establishes that the relief sought for the denial of FAPE is appropriate. There is nothing in the record that supports a finding the Parents have not cooperated with the DOE. For all of the reasons stated herein, I find that the Parent is entitled to the relief sought.

NOW therefore, it is hereby

ORDERED upon the DOE’s DEFAULT and after INQUEST that upon its receipt of reasonably satisfactory proof of services having been rendered, the DOE shall either reimburse the Parents and/or direct pay the cost of the student’s tuition and related costs, including transportation at the private school for the student’s attendance during the 2019-2020 school year; and it is further

ORDERED upon the DOE’s DEFAULT and after INQUEST that the DOE shall immediately conduct evaluations of the student in all areas of his suspected disabilities not evaluated within the last two years, for the 2020-2021 school year; and it is further

ORDERED upon the DOE’s DEFAULT and after INQUEST that the DOE shall forthwith reconvening the CSE after the completion of the student’s evaluations and consider those evaluations and any other relevant information and produce a new IEP for the student's 2020-2021 school year; and it is further

ORDERED upon the DOE’s DEFAULT and after INQUEST that any of the other relief sought by the Parent not addressed by this decision is found to be either agreed upon by the parties, withdrawn by the Parent, outside the scope of the IHO’s authority or unsupported by the record.

DATED: July 7, 2020

New York, New York Edgar De Leon - IHO

PLEASE TAKE NOTICE

The parent and/or the New York City Department of Education has a right to obtain a review of this decision by a State Review Officer of the New York State Education Department under Part 200.5(k) of the Regulations of the Commissioner of Education, Section 4404 of the Education Law, and the Individuals with Disabilities Education Act. Directions and forms can be found on the Office of State Review website: http://www.sro.nysed.gov/RevisedRegulationsOverview.html

DOCUMENTATION ENTERED INTO RECORD

Number/Letter Title Dated For #of Pages

01 Withdrawn / Not Received N/A DOE N/A

DPC 09/05/19 PARENT 08

-~IOaTMoVOWY

Letter of Placement 08/19/19 PARENT 07

Enrollment Contract 09/06/19 PARENT 05

School Schedule undated PARENT 01

Program Description undated PARENT 04

Report Card 11/07/19 PARENT 05

Report Card 11/07/19 PARENT 01

Affidavit of Mother 02/04/20 PARENT 07

Affidavit of 02/04/20 PARENT 08

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