Impartial Hearing Decision

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DECISION ORDER Case Number: Student’s Name: District: Hearing Requested By: Hearing Officer: 187909 Redacted Parents Martin J. Kehoe III, Esq.

Introduction

This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer (HO) in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (IDEA) and the New York State Education Laws. The School District will be referred to as District, the parents as Parents and the student will be referred to as Student. This is a “reimbursement” case. The complaint notice is dated September 5, 2019. The parties met in the context of a hearing on December 4, 2019 and December 19, 2019.

Overview

I will briefly apply a three-prong analysis to this case, examining first whether the District met its burden to demonstrate the appropriateness of their program, second whether the Parents met their burden to demonstrate the appropriateness of the placement at Private School, and third whether equitable considerations favor the District or the Parents in this matter.

Parents' Position

In the complaint notice, the Parents alleged that the District denied the Student a free appropriate public education (FAPE) for the 2017-2018; 2018-2019; and the 2019-2020 school years. The Parents allege that the District failed to recommend an appropriate program and placement for these school years. The Parents are seeking funding for tuition and related costs for the 2019-2020 school year for the Private School where they unilaterally placed the Student; door to door transportation; funding for independent educational evaluations (psychoeducational, occupational therapy, speech language, and assistive technology); a functional behavioral assessment and a behavior intervention plan by a board certified behavioral analyst of the Parents’ choice'; compensatory education in 1:1 instruction by a private agency and an individual assessment by a special education teacher; compensatory related services in a bank of 1:1 private speech language therapy; 1:1 private occupational therapy; private social skills training; and 1:1 private counseling —all at an enhanced rate by providers of the Parents’ choice. (Ex. A)

District's Position

The District submitted evidence and cross-examined the Parents’ witnesses. The District does not agree with the Parents’ request to pay for or reimburse the private independent evaluation. (T. 31) It is the Districts position that they fulfilled their obligations in conducting an initial evaluation and holding IEP meetings for all of the school years at issue. They also assert that there is no need for any IEE. (T. 44)

Student History

At the time of the complaint notice was filed, the Student was years old. He has been diagnosed with mixed receptive-expressive language disorder; phonological disorder; ' The Parent withdrew the request for a neuropsychological evaluation (Tr. P. 73). The other Independent evaluations were addressed via motion submitted by the Parent on November 22, 2019. By interim order dated 1/20/2020 an interim order resolved the remaining IEE issues. Namely, a Psychoeducational evaluation at the cost of $3,000; a Speech-language and occupational therapy evaluation at the cost of $1,350 for each, and an Assistive technology evaluation, at the cost of $1,850.

specific learning disorder with impairment in reading; specific learning disorder with impairment in mathematics; developmental disorder of scholastic skills and academic processing speed; attention deficit/hyperactivity disorder, combined presentation (deferred); and separation anxiety disorder (deferred). (Ex. I)

Recommendations

The Neuropsychologist who evaluated the Student recommended an extensive assessment to explore linguistic issues; placement in a classroom with a smaller student to teacher ratio with a collaborating team approach and structured environment; a 1:1 tutoring program in reading, mathematics, learning and memory strategies, and studying techniques; a multisensory reading program like Wilson Reading and Orton-Gillingham; classroom accommodations an FBA and BIP and Parent training. (Ex. I)

Background

The Parent testified by affidavit that she had enrolled the Student in a private school for pre-school, kindergarten, and first grade, where he struggled each year with reading, transitions, and behavior. She said that during the 2017-2018 school year (first grade), the Student was below grade level and had difficulties with multi-step directions, internalizing strategies, and retaining information. She said that she wrote to the District on January 26, 2018 to ask them to evaluate the Student. In February 2018, the Parent had the Student evaluated by a speech and language clinic which diagnosed him with mild to moderate mixed expressive-receptive language disorder and shared the report with the District. (Ex. Q) The District conducted a social history interview, a classroom observation, and occupational therapy evaluation, and a psychoeducational evaluation. A CSE meeting was held on June 5, 2018, and the Parent attended it. The Parent testified that she asked about enrolling the Student in a District placement, but her request was ignored. According to the Parent, following the meeting, she continued to request a District placement. She had the Student privately evaluated by a neuropsychologist in July and August of 2018 and shared the report with the District. (Ex. Q)

Analysis

A board of education may be required to reimburse parents for their expenditures for private education services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim. Florence County Sch. Dist. Four v. Carter. 510 U.S. 7 (1993); Sch. Comm. Of Burlington v. Dep’t. of Educ., 471 U.S. 359, 369-70 (1985).

Prong I

The purpose of IDEA is to provide students with a “basic floor of opportunity” of access to specialized instruction and related services that are individually designed to provide educational benefits. Board of Education, Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 189-190, 102 S. Ct. 3034 (1982); Walczak v. Florida UFSD, 142 F.3d 119 (2nd Cir. 1998). Neither the IDEA, nor Article 89 of the New York State Education Law, requires a school district to provide special education and related services designed to maximize the potential of a disabled student. Nor do federal and state education laws require a school district to provide the best possible educational program and related services, or match those services requested by a parent. Application of a Child With a Disability (City School District of Buffalo), S.R.O. Decision 04-20 (2004). Rather, the goals and mandates of the IDEA and N.Y. Education Law are relatively modest: namely, to provide appropriate specialized education and related services sufficient for the disabled student to benefit from his/her education. Straube v. Florida UFSD, 801 F. Supp. 1164, 1175-1176 (S.D.N.Y. 1992); Moubry vy. Independent School District, 9 F. Supp.2d 1086, 1104 (D. Minn. 1998) (citing Rowley) This straightforward obligation of the District is accompanied by the requirement to demonstrate the appropriateness of the program recommended by its CSE. (Application of a Child Suspected of Having a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Handicapped Child, 22 Ed Dept Rep 487 [1983]). To meet its burden, a board of education must show that its recommended program is reasonably calculated to confer educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176 [1982]). The recommended program must also be provided in the least restrictive environment (34 C.F.R. § 300.550[b]; 8 NYCRR200.6fa][1]). The Parents submitted evidence and called two witnesses: the Parent (Mother) and the Director of the Private School. The District submitted evidence and cross-examined the Parents’ witnesses, but they did not call any witnesses to defend their programs in any of the school years at issue in this case. L.O. v. N.Y. City Dep't of Educ., 822 F.3d 95, 111 2016 U.S. App. LEXIS 9239. While I respect the District’s effort to compile a record and cross the Parent’s witnesses, the failure to call witnesses to explain the rationale is a significant procedural violation that warrants a finding that a FAPE was denied. [, therefore, rule for the Parents on Prong I.

Prong II

I must now consider whether the Parents met their burden of proving the appropriateness of the placement of the Student at the Private School. On Prong II, New York federal courts have held that parental placements are “‘subject to fewer constraints than that applied to the school authorities.” Schreiber vy. E. Ramapo Cent. Sch. Dist., 700 F. Supp 529 [S.D.N.Y. 2010] The Second Circuit has clearly stated: “|. . [P]Jarents 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 y. Arlington Cent. Sch. Dist., 489 F.3d 105 [2d Cir. 2007] quoting Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d Cir. 2006] Moreover, parents "may not be subject to the same mainstreaming requirements as a school board." Frank G. v. Bd. of Ed. of Hyde Park [2d Cir. 2006] quoting M.S. v. Bd. of Ed. of City Sch. Dist. of Yonkers, 231 F.3d 96, 105 [2d Cir. 2000] citing Warren G. v. Cumberland

County Sch. Dist, 190 F.3d 80, 84 [3d Cir. 1999] (holding that "the test for the parents' private placement is that it is appropriate, and not that it is perfect"). The Private School is a special education school for students with language abased learning disorders and dyslexia in grades 2-6. It provides individualized instruction. Math is taught , with manipulatives and multi-sensory methodology. The school uses Orton-Gillingham, Lexia Core 5 computer-based practice, the Project Read writing program, a social- emotional program, individualized academic plans in addition to goals and management needs in IEP’s. The school provides all services mandated'in students’ IEP’s, field trips, and school clubs. The school staff includes a guidance counselor, a licensed clinical speech and language pathologist, a licensed certified occupational therapy assistant (supervised by a licensed occupational therapist), and Orton-Gillingham trained reading specialists, and ongoing consultation with a post-doctorate neuropsychologist. The Student is in a class of six students and receives related services of occupational therapy, speech and language therapy, and counseling at the school. (Ex. M) The Executive Director/Principal testified that the Student is making progress in ELA and math, has not had any behavioral problems, and has made friends. (Ex. M) The Parent testified that the Student enjoys school, is more confident, and that his teachers and related services provides have told her that he is making great progress. (Ex. Q)

Accordingly, I find that the placement provides educational instruction specially designed to meet the unique needs of the Student. Moreover, the Parents have established that such services as are necessary to permit the Student to benefit from instruction.

Prong III

As a final point, 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 where equitable considerations support the parents’ claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 {1993}; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). 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 (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C] [ii]; 34 CFR 300.148). Tuition reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the child from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense." (20 U.S.C. § 612[a][10][C][iii][T] ; see 34 C.F.R. § 300.148[d]) This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE]| can be provided in the public schools." (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]) In this case ! find that the Parents cooperated with the CSE. On or about May 30, 2019, the Parents sent a letter to the CSE requesting an immediate CSE meeting for the Student for an IEP and a recommendation for a District placement. (Ex. F) The Parents sent a letter to the CSE chair, dated July 31, 2019 requesting an independent psychoeducational evaluation by a specific provider; speech language, occupational therapy, and assistive technology by specific providers; and an independent FBA and BIP by a BCBA of the Parents choosing. (Ex. E) In a letter to the District dated August 5, 2019, the Parents requested a revaluation for the Student and an FBA. (Ex. D) The Parents sent a ten day notice letter of unilateral placement letter to the CSE chair, dated August 19, 2019. (Ex. B) Although the District sent a letter to the Parents, dated September 4, 2019, determining that their ten-day notice claim is not appropriate for settlement. (Ex. C), the record does not watrant reduction of the award to the Parents (Tr. p. 54).

Compensatory Education

Regarding the remedy of compensatory education, I find guidance in Reid v. District of Columbia, 401 F.3d 516, (D.C. Cir. 2005) (finding that compensatory education is not a “form of damages” because the courts act in equity when remedying IDEA violations and must “do equity and. . . mould each decree to the necessities of the particular case”) (quoting Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944)); See also, Wenger v. Canastota, 979 F. Supp. 147, 150-51 [N.D.N.Y. 1997].

Within the Second Circuit, compensatory education has been awarded to students who are ineligible by reason of age or graduation if there has been a gross violation of the IDEA resulting in the denial of, or exclusion from, educational services for a substantial period of time (see Somoza v. New York City Dep't of Educ., 538 F.3d 106, 109 n.2, 113 n.6 [2d Cir. 2008]; Mrs. C. v. Wheaton, 916 F.2d 69, 75 [2d Cir. 1990]; Burr v. Ambach, 863 F.2d 1071 [2d Cir. 1988]; Cosgrove v. Bd. of Educ., 175 F. Supp. 2d 375, 387 [N.D.N.Y. 2001]. Compensatory education relief may also be awarded to a student with a disability who remains eligible for instruction under the IDEA (see 20 U.S.C. §§ 1401[3], 1412[a][1][B]; Educ. Law §§ 3202[1], 4401[1], 4402[5]). Within the Second Circuit, compensatory education relief in the form of supplemental special education or related services has been awarded to such students if there has been a denial of a FAPE (see P. v. Newington Bd. of Educ., 546 F.3d at 123 [2d Cir. 2008] [stating that "[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and . . . compensatory education is an available option under the Act to make up for denial of a [FAPE]"]; see generally R.C. v. Bd. of Educ., 2008 WL 9731053, at 12-13 [S.D.N.Y. Mar. 6, 2008], adopted at 2008 WL 9731174 [Jul. 7, 2008]). Likewise, SROs have awarded compensatory "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 (Bd. of Educ. v. Munoz, 16 A.D.3d 1142 [4th Dep't 2005] [finding it proper for an SRO to order a school district to provide "make-up services" to a student upon the school district's failure to provide those educational services to the student during home instruction]; Application of the Dep't of Educ., Appeal No. 13-236 [upholding an additional service award of physical therapy|; Application of a Student with a Disability, Appeal Nos. 13-226 & 13-228 [awarding additional services in the form of tutoring or other direct support from a special education teacher]; Application of a Student with a Disability, Appeal No. 13-208 [upholding an additional service award of 100 hours of compensatory one-to-one tutoring in math and reading]; Application of the Dep't of Educ., Appeal No. 13-048 [awarding the 10 student with 1:1 counseling services and 1:1 speech-language therapy in compensatory additional services}]). In fashioning an appropriate award of compensatory education, one must be mindful that the central purpose of such award is to provide a remedy for a specific denial of a FAPE (see Newington, 546 F.3d at 123 [holding that compensatory education is a remedy designed to "make up for" a denial of a FAPE]; see also Reid v. Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005] [holding that, in fashioning an appropriate compensatory education remedy, "the inquiry must be fact-specific, and to accomplish IDEA's purposes, the ultimate award 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"; Parents of Student W. v. Puyallup Sch. Dist., 31 F.3d 1489, 1497 [9th Cir. 1994] [holding that "[a]ppropriate relief is relief designed to ensure that the student is appropriately educated within the meaning of the IDEA"]). Accordingly, an award of additional services should aim to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA (see Newington, 546 F.3d at 123 [holding that compensatory education awards should be designed so as to "appropriately address the problems with the IEP"]; see also Draper vy. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 [11th Cir. 2008] [holding that "[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act"]; Bd. of Educ. v. L.M., 478 F.3d 307, 316 [6th Cir. 2007] [holding that "a flexible approach, rather than a rote hour-by-hour compensation award, is more likely to address [the student's] educational problems successfully"]; Reid, 401 F.3d at 518, 525 [holding that compensatory education is a "replacement of educational services the child should have received in the first place" and that compensatory education awards "should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA"];_ Parents of Student W. v. Puyallup Sch. Dist. 31 F.3d 1489, 1497 ["There is no obligation to provide a.day-for-day compensation for time missed"); Application of the Dep't of Educ., Appeal No. 11-132; Application of a 1]

Student with a Disability, Appeal No. 11-091). See, specifically, Application of a Student with a Disability, Appeal No. 14-014. I have reduced requested award regarding the remaining requests for compensatory education for three reasons. One, I am confident in the CSE and their ability, guided by the Neuropsychological Evaluation and the other evaluations developed over time, to make good decisions about the Student’s needs and related services going forward. Two, I am persuaded by testimony that the Student’s placement in the proper learning environment, called for in my order, will enable the Student to make progress. Three, I recognize there are a finite number of hours per week, and the demands of the Student’s school year along with significant hours of tutoring, may be daunting. Inherent limits of stamina, pace, concentration and the like could easily place an unintended burden on the Student and the family. I attempt to mitigate these unintended consequences with my order. In conclusion, I issue the following orders: The District shall provide reimbursement/direct funding for the Private School and associated transportation for the 2019-2020 school year upon presentation of proper invoices. The District shall provide for a bank fifty (50) tutoring hours to be available to the Student over the next two years for the subjects of reading, writing and math. The use of the hours toward particular subjects and the timing of such services is left to the discretion of the provider and Parents. Dated: February 8, 2020 So Ordered, 12

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/RevisedResoulationsOverview. html 13

Parent Exhibit List New York City Exhibit Number Number Exhibit Date of Pages P-A Demand for Due Process Hearing 09/05/19 = 12 COMMITTEE ON SPECIAL EDUCATION & SCHOOL CORRESPONDENCE P-B Determination Letter 09/04/19 1 P-C Letter of Unilateral Placement 08/19/19 = 11 P-D Request for Reevaluation 08/05/19 = 1 P-E IEE Request Letter/Confirmation 07/31/19 3 P-F Parent Request Letter Re; IESP to IEP 05/30/19 = 1 P-G Consent for Initial provision of services 06/28/18 1 EVALUATIONS & REPORTS P-H November Progress Reports 11/2019 11 p-] Neuropsychological Evaluation 08/30/19 21 P-J Classroom Observation 2018 2 P-K Teacher Report 04/17/18 4 ADDITIONAL DOCUMENTS P-L Affidavit 12/09/19 3 P-M Affidavit 12/05/19 6 P-N Enrollment Contract 19-20 04/17/19 1 P-O Class Schedule No Date 1 P-P Program Description No Date 1 P-Q Affidavit 12/19/19 6 vlLod~e :ayeq:4991NO Bupwoy penueduy "BAOGE Poyedipulayep ay} UO vpn Of ip 19 fuleley Pajsi] FUpIAS 9y) yey} AjIsa9 | (2-2) ssayja] aseo19MO] YIIM payseUl /S}/QpYXo juale] PueUOjeonpy Jo juotupledag JUJOT ‘(""}) Spesaumnu Jqesyyyw poyseul :3}jqijxXs UOjjeonpyJo JUSTE ad } E CEVAeS’ ul UMBIPUJIAA poyupy paA9Y4O sofieg ; QI40) payer eq ayeg yea Jo ‘On‘HaNuxa Jo woRdyosed se} ‘ONpHgIUXg40)U3 (Gupresy jo ajep yowa 104 Jaaysajesedosasn) : Yo) / % / Cy):Buredpy jo ajeq LOy L 6| daquiny ase - :OWeN SjUuapNis FONaGIASNOMVondaJO INSWdvdaG 2 LOZLL OA May ‘uApoo1g -L8L9-L6e (82)‘xeCOZ WOOY ~ JOANS UOISBUIAT]PEL % 08ze-Se6 (81.2)‘ouoydayja,, | 2010Bupa} jequeduyy 70}BDUSPIASpue WO)pajajduioouinjasaseaygy

Department of Education Division of Students with Disabilities and English Language Learners Committee on Special Education # 131 Livingston Street, 4th floor Brooklyn, NY 11201 Office: 718-935-4900 Fax: 718-935-5167 DEPARTMENT OF EDUCATION OF THE CITY OF NEW YORK IMPARTIAL HEARING OFFICE In the matter of: (DOB: ) LIST OF EXHIBITS: Exhibit | Description Date Pages 1 Initial Referral 1/31/2018 1 2 Notice of Social History 3/6/2018 ] 3 Social History Evaluation 3/9/2018 3 4 Speech and Language Evaluation 2/20/2018 18 5 Classroom Observation 3/19/2018 2 6 Psychoeducaitonal Evaluation 3/26/2018 5 7 Occupational Therapy Parent Checklist 3/9/2018 2 8 Occupational Therapy Evaluation 5/16/2018 4 9 Meeting Notice Committee On Special Education (CSE) 5/23/2018 3 10 Individualized Education Services Program (JESP) 6/5/2018 15 11 Consent for Initial Provision of Services/Parentally Placed 6/22/2018 1 12 Authorization for Independent Special Education Teacher Support | 9/10/2018 2 Services for Parentally-Placed Student 13 Speech and Language Therapy Annual Report 4/24/2019 2 14 Occupational Therapy Progress Report 5/8/2019 2 15 Counseling Progress Report 5/3/2019 2 16 The Co-op School Second Grade Progress Report 4/9/2019 8 17 Meeting Notice Committee on Special Education (CSE) 4/10/2019 3 18 Individualized Education Services Program (IESP) 5/13/2019 16 19 Prior Written Notice (Notice of Recommendation) 5/31/2019 3 20 Parent Notice of Intent/Parentally Placed 4/18/2019 3 21 Ten Day Notice 7/31/2019 3 22 Prior Written Notice (Notice of Recommendation) 8/5/2019 3