NY IHO #188001: New York City... | Special Education Law

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FINDINGS OF FACTS & DECISION

Case Number: 188001

NYS Identifier Number N/A

Student’s Name: [“Confidential”]

District:

Hearing Requested By: Parent

Dates(s) of Hearing: 12/18/19

Actual Record Close Date: 05/18/20

Hearing Officer: Edgar De Leon

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date Attorney DOE 12/18/19

School Psychologist DOE 12/18/19 Attorney PARENT 12/18/19

Father PARENT 12/18/19

Mother PARENT 12/18/19

School Psychologist PARENT 12/18/19

On September 14, 2019, I was appointed as the Impartial Hearing Officer (“IHO”)

to conduct a hearing pursuant to the Individual with Disabilities in Education Act ( “IDEA”), 20 United States Code, Section 1415(f)(1), ), Article 89 of the New York State Education Law and Parts 200 and 201 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”) - , concerning the student’s special education program. After adjournments were granted at the request of and with the consent of the parties, or for good cause, the impartial hearing was held on December 18, 2019 and January 6, 2020. The parties opted to submit written closing statements which were due and received on March 20, 2020,

2020. (D-27 & P-R) A list of the witnesses who appeared and the documents taken into evidence is annexed to this decision.

BACKGROUND

In this case, the Parent alleges that the student has been denied a “free and appropriate public education” (“FAPE”) for the 2018-2019 and 2019-2020 school years.

At the impartial hearing, the Parent request that the IHO issue an order an order granting the following relief:

(a) An Interim Order for door-to-door transportation services in an air-conditioned vehicle with limited (60 minutes) traveling time; and

(b) An Order for the direct funding and reimbursement of the student’s private school tuition fees for the school years at Issue; and

(c) An Order for door-to-door transportation services in an air-conditioned vehicle with limited (60 minutes) traveling time; and

(d) An Order reimbursing the Parents for the fees and costs incurred as related to the 2018 neuropsychological evaluation and report; and

(e) Costs and fees; and

(f) Any and such relief as the IHO determines is appropriate.

At the impartial hearing, the Parent withdrew her request for an “independent educational evaluation” (“IEE”). (T-13) The DOE concedes that the Parents cooperated with the agency. (T-19-20)

THE DOE’S CASE

The DOE called (1) witness to testify on its behalf and submitted (26) documents into evidence. In sum, substance and relevant part, the testamentary and documentary evidence for and against the DOE case is incorporated in the decision below.

THE PARENT’S CASE

The Parents called (1) witness testify on their behalf and submitted (18)

documents into evidence. In sum, substance and relevant part, the testamentary and documentary evidence for and against the Parent’s case is incorporated in the decision below.

FINDINGS OF FACTS & DECISION

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. (See 20 U.S.C. § 1400[d][1][A]-[B] and Bd. of Educ. v. Rowley,

458 U.S. 176, 206-07 [1982])

A FAPE is offered to a student when (a) the DOE 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. (See Rowley, 458 U.S. at 206-07 and Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]) While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA.

(See A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent.

Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003] and Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007])

Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a)

impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits. (See 20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008] and Matrejek v. Brewster Cent. Sch.

Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007] aff'd, 2008 WL 3852180 [2d Cir. Aug.

19, 2008])

The IDEA directs that, in general, an impartial hearing officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE. (See 20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction." (See Rowley, 458 U.S. at 203) However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP." (See Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998] and Rowley, 458 U.S. at 189) The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents." (See Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted] and Grim, 346 F.3d at 379)

Additionally, school districts are not required to "maximize" the potential of students with disabilities. (See Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379 and Walczak, 142 F.3d at 132) Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement.'" (See Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008] and Perricelli, 2007 WL 465211, at *15) The IEP must be "reasonably calculated to provide some 'meaningful' benefit." (See Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997] and Rowley, 458 U.S. at 192) The student's recommended program must also be provided in the least restrictive environment (

“LRE”). (See 20 U.S.C. § 1412[a][5][A]; 34 C.F.R. §§ 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent.

Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009] and Patskin v.

Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008])

An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs (34 C.F.R. § 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals related to those needs (34 C.F.R. § 300.320[a][2]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services. (See 34 C.F.R. § 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; SRO No.

07-018; 06-059; 06-029; 04-046; 02-014; 01-095 and 93-09) Subsequent to its development, an IEP must be properly implemented. (See 8 NYCRR 200.4[e][7] and

SRO No. 08-087)

The DOE may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim.

(See Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993] and Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]) 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. (See 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, 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. (See Burlington, 471 U.S. at 370-71; 20 U.S.C. § 1412[a][10][C][ii] and 34 C.F.R. § 300.148)

The New York State Legislature amended the Education Law to place the burden of production and persuasion upon the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of production and persuasion regarding the appropriateness of such placement. (See Educ. Law § 4404[1][c], as amended by Ch. 583 of the Laws of 2007) The amended law took effect for impartial hearings commenced on or after October 14, 2007; therefore, it applies to the instant case. (See SRO No. 08-016)

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 seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate." (See Gagliardo, 489 F.3d at 112 and M.S. v. Bd. of Educ., 231 F.3d 96, 104 [2d Cir. 2000])

"Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement….'" (See Gagliardo, 489 F.3d at 112; Frank G. v. Bd. of Educ., 459 F.3d at 364 [2d Cir. 2006]

[quoting Rowley, 458 U.S. at 207 and identifying exceptions]) Parents 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"]]) A "private placement is only appropriate if it provides 'education instruction specifically designed to meet the unique needs of a handicapped child.'" (See Gagliardo, 489 F.3d at 115 [emphasis in original], citing Frank G., 459 F.3d at 365 quoting Rowley, 458 U.S. at 188-89)

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.

No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. 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. 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. 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. (See Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65).

The IDEA allows that 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." (See 20 U.S.C. § 1412[a][10][C][iii][I] and 34 C.F.R. § 300.148[d][1]) 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." (See Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]) Although a reduction in reimbursement is discretionary, courts have upheld the denial of tuition reimbursement in cases where it was shown that parents failed to comply with this statutory provision.

(See Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); SRO No. 07-

133; 07-120; 07-115; 07-098; 07-079; 07-075; 07-038; 07-032; 06-122; 06-069; 06-057; 06-042; 06-041; 06-035; 05-092 and 04-022)

The final criterion for a reimbursement award is that the parent's claim be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA. (See Burlington, 471 U.S. at 374; M.C. v. Voluntown, 226 F.3d 60, 68 [2d Cir. 2000] and 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." (See 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, the IDEA provides that 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, fail to engage with potential placements offered by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. (See 20 U.S.C. § 1412[a][10][C][iii]; Thies v. New York City Bd. of Educ., 2008 WL 344728 [S.D.N.Y. Feb. 4, 2008]; M.V. v. Shenendehowa Cent. Sch.

Dist., 2008 WL 53181 at *5 [N.D.N.Y. Jan. 2, 2008]; Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 [S.D.N.Y. Nov. 20, 2007]; Carmel Cent. Sch. Dist. v.

V.P., 373 F. Supp. 2d 402, 417-18 [S.D.N.Y. 2005], aff'd, 2006 WL 2335140 [2d Cir.

Aug. 9, 2006] and Voluntown, 226 F.3d at n.9)

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. (SRO No. 04-049)

In sum, substance and relevant part, the school psychologist that testified on direct examination for the DOE via affidavit pursuant to 8 NYCRR 200.5[j][3][xii][f] stated the following:

5. I became familiar with when he was first referred for an initial IEP review in October 2017. At that time he was a student in the at .

6. In preparation for this initial IEP, I conducted a psychoeducational evaluation on December 12,2017. The Wechsler Intelligence Scale-Fifth Edition (WISC-V) and the Wechsler Individual Achievement Test - Third Edition (WIAT III) were administered. These evaluations assess a student's cognitive and academic functioning, respectively. obtained a Full-Scale IQ of 132, which placed his overall intellectual functioning in the Extremely High range. performed in the Average to Extremely High range in all areas of the WISC-V and his cognitive ability was found to be in the Extremely High range. On the WIA TIII, 's word reading, reading comprehension and math problem solving were at the 99th percentile, and he demonstrated age appropriate numerical operations. While demonstrated very high cognitive and academic functioning, his teachers reported that he exhibited defiant behavior and that he angered easily. The Devereaux Behavior Rating Scale-School Form was completed and scored at the 94th percentile, which is classified as very significant. The Gilliam Autism Rating Scale, Third Edition (GAR-3) was also administered based upon behavioral concerns. received a score of 89, which signified that it was "very likely" that he was a student with Autism Spectrum Disorder. This evaluation was considered at the Initial IEP Meeting.

7. An Initial IEP Meeting was held on January 1, 2018. Academically, was performing above grade level in reading as of January 2018, and on grade level and approaching grade level in writing and math respectively as of November 2017. Behaviorally, could grow aggressive and he demonstrated resistance to tasks that did not interest him.

8. The IEP team classified as a student with Autism after consultation with a supervisor of psychologists. The team recommended that he receive counseling in a small group twice a week. The IEP contained various management needs to assist with his behavior, including behavior charts, frequent praise and encouragement, verbal and visual cues and redirection to increase participation and task completion. This program was recommended to provide with emotional support while enabling him to remain in the general education classroom given his very high intellectual functioning.

9. ' s Parent did not provide consent for this IEP recommendation. Consequently, did not receive the services recommended in the IEP for the remainder of his Second-Grade year. However, was provided with at risk counseling services by the school's Social Worker .

10. began third grade in a general education classroom at . In September 2018, ' s case was closed given Parent's failure to provide consent.

11. 's Parent requested that 's case be reopened on October 26,2018. In preparation for this IEP meeting, an Occupational Therapy Evaluation was conducted due to concerns with 's weakness in attention and executive functioning. Give that 's Parents provided the IEP team with an independent Neuropsychological Evaluation conducted in August 2018, updated educational testing was not required. A current Teacher Report was obtained from 's teacher.

12. A Functional Behavioral Assessment (FBA) was also performed, beginning in November 2018. experienced difficulty when interacting with his peers, however, by the end of November teacher reported that his problematic behaviors had decreased as a result of interventions employed in the classroom. ( )

13. A BIP was created on January 3, 2019. The BIP included various strategies to assist with his behavior. These included the teaching of alternative behaviors through modeling, practice, and role play both at home and before the start of class.

14. An IEP meeting was held on January 11,2019. I attended in the roles of School Psychologist and District Representative. Also in attendance were: (i)

, Related Service Provider/Special Education Teacher; (ii)

, General Education Teacher; (iii) 's Parent; (iv) , School Social Worker; (v) , Friend/Advocate; (vi) , Social Worker/Therapist; (vii)

, Guidance Counselor, and; (viii) , Assistant Principal.

15. The IEP team discussed ' s strengths and weaknesses. continued to read above grade level, and he was approaching grade level standards in math and writing.

was meeting grade level standards in social studies and science. The team discussed the independent neuropsychological evaluation that was performed in August 2018. The evaluation noted that 's cognitive functioning continued to be in Very Superior Range, and academic achievement was above expectations. The Neuropsychological report also diagnosed as a student with Mild Autism Spectrum Disorder. It reported that he was a twice exceptional student.

17. The IEP team recommended that continue to receive counseling and remain in a general education classroom. A session of individual counseling was added to further support 's emotional needs. Occupational Therapy at a rate of 1:1x30 was also recommended to assist with executive functioning.

The IEP contained numerous management needs, including redirection, a privacy board, preferential seating, checklists and logs of schedules, breaking down tasks, note cards, focusing prompts, behavior charts and frequent praise and encouragement to further support The IEP also included testing accommodations.

18. While the recommendation of a paraprofessional was discussed at

Parent's request, the IEP team agreed that 's behaviors had decreased to such an extent that a paraprofessional was not warranted. This level of support would have been too restrictive for

19. It is my professional opinion that this was an appropriate IEP for demonstrated significant behavioral progress during by the end of the first semester of the 2018-2019 school year, and a more restrictive setting would not have been an appropriate setting for given his high cognitive functioning.

20. Parent provided consent for this IEP program on February 4, 2019.

21. was withdrawn from in April 2019. (D-26)

On September 27, 2018, the Parent confirmed with that she did not want the services recommended on the January 9, 2018 IEP and that student’s case would be closed. (D-27 citing D-6 & D-25) Subsequently, the IEP team again recommended that the student remain in a general education classroom and receive an extra session of counseling in a small group was added, as well as individual occupational therapy with management needs to provide further assistance, including redirection, a privacy board, preferential seating, checklists and schedule logs, breaking down tasks, note cards, focusing prompts, behavior charts, and frequent praise and encouragement. (D-26 citing D11 & D-14) The IEP team considered the Parent’s request for a paraprofessional and agreed that one would be unnecessary and too restrictive given the decrease in the student’s behaviors. (D-26 citing D-14) Although the Parents provided consented to the IEP program on February 4, 2019, the student was subsequently withdrawn from in April 2019 and unilaterally enrolled in the private school. (D-26 citing D-16)

The DOE asserts that each of the IEP meetings that took place were comprised of the requisite members, including at the minimum, parent, a school psychologist, a general education teacher, a special education provider, a district representative, and a school social worker. (D-26 citing 8 NYCRR 200.3 (a)(1), D-4 & D-14) The DOE further notes that he Parent also attended each IEP meeting, brought a family friend and the student’s private therapist to the January 9, 2018 meeting, further demonstrating her active role in the process. (D-26 citing D-14) The Parent subsequently requested that the student’s case be reopened, and the meeting was held on January 11, 2019, within sixty (60) days of the Parent’s request and receipt of parental consent to evaluate as required by law. (D-26 citing 8 NYCRR 200.4 (b)(1), D-7, D-9 & D-14)

The DOE further argues that each of the IEPs created for the years at issue recommended programs that were tailored to the student’s specific needs and the provision of counseling services was appropriate because it provided the student with social and emotional support, while enabling to him to remain amongst typically developing peers in a general education environment. (D-26) The student’s behavior improved by the fall of 2018, and it was apparent that a more restrictive setting would not have been appropriate, while continuing to recommend counseling with the addition of occupational therapy to support the student’s executive functioning was appropriate. (Id.) Thee Parent did not provide consent for the program recommended at the January 9, 2018 meeting. (Id.)

Regarding the appropriateness of the student’s private school placement, the DOE notes that the school psychologist that testified for the Parent began working at the school in July 2019, played no role in the student’s admission, did not speak with the student’s previous school or his neuropsychologist, and has not read the student’s IEP. (D-26, noting

T-143-4). While the student receives speech language therapy, the school psychologist did not know if the private school ever performed a speech evaluation to determine whether this service was necessary and could not testify as to how the private school determined that it was appropriate for speech and language therapy is appropriate for the student. (D-

26 citing T-143, 151 & P-Q)

In sum, substance and relevant part, the school psychologist that testified for the Parent stated as follows:

4. I have been employed by [PRIVATE SCHOOL NAME] in this position since July 2019.

8. At [PRIVATE SCHOOL NAME], we have three school psychologists in total, including myself, and l supervise the other two.

10. [PRIVATE SCHOOL NAME] offers its students a smaller campus size and learning environment, and for the 2019-2020 school year, we serve around fifty-five students, grades second through twelfth, ages eight to eighteen.

12. I am familiar with [STUDENT NAME] because he is a student at [PRIVATE SCHOOL NAME], and I am [STUDENT NAME]'s direct provider for counseling services, as well as being the Leader of his team of related therapeutic services.

13. To develop an understanding of [STUDENT NAME]'s strengths, needs, and present levels of performance, we initially assessed [STUDENT NAME]'s reading, writing, and mathematics skills, as well as reviewing his educational records of relevance.

14. As a part of my review of [STUDENT NAME]'s records, I reviewed his 2018 neuropsychological evaluation by . Given my expertise in this area, I found her evaluation and report to be comprehensive and credible, based on her qualifications, on the assessments performed and reported, on the standards applied, and the data reported.

15. ln my professional opinion, I agree with her findings and diagnose as well.

16. For reference, 20 18 Neuropsychological Report is annexed hereto and marked for identification as Exhibit U-12-35.

17. I also met with [STUDENT NAME]'s parents prior to his enrollment at [PRIVATE SCHOOL NAME] and discussed at length the issues that [STUDENT NAME] had experienced in his previous public-school placement.

18. [STUDENT NAME] is in a class fourteen students comprised of students with ages ranging between nine and eleven, and grade levels fourth and fifth.

19. His class is functionally grouped by skill levels and learning needs.

20. All of the students at [PRIVATE SCHOOL NAME] are considered twice exceptional, which we define as students with a gifted potential that have been diagnosed with a disability that affects their learning needs.

21. Many, but not all of the students at [PRIVATE SCHOOL NAME] have IEPs but having an IEP is not a prerequisite to an acceptance to our program.

22. Most of the students in [STUDENT NAME]'s class have disabilities related to their social/emotional cognition, development, and self-regulation awareness and management.

23. [STUDENT NAME]'s class is instructed in a co-teaching format with two teachers, , who has her Bachelor's in Childhood Education and her Master's in Special Education, and , who is New York State certified in general education instruction for grade school aged children.

24. and co-teach most of [STUDENT NAME]'s classes, including English Language Arts ("ELA"), Social Studies, and Science. They also co-teach his Mathematics course with a math specialist that leads the instruction for that period.

25. Special classes such as Engineering, Art, or Spanish are taught by subject matter experts.

37. To address [STUDENT NAME]'s handwriting/written expression skill deficits and anxieties, we provide a number of accommodations and interventions.

38. has a Google Chromebook and account, and his assignments are accessible and completable there.

39. He also receives group and 1:1 occupational therapy, 1:1 speech language therapy, 1:1 counseling with myself, and 1:1 instruction support with a learning specialist, each on a weekly basis.

47. He is engaged academically and requires minimal supports to stay on task.

48. When needed, [STUDENT NAME] is easily redirected to the appropriate assignment.

49. At [PRIVATE SCHOOL NAME], [STUDENT NAME] has rarely demonstrated instances of emotional dysregulation, but on the few occasions that he has, he has learned to express himself and his feelings about the triggering event to his teacher or provider, rather than reacting impulsively and/or without consideration of the appropriate way to respond to frustrating events. (P-Q)

The Parents argues that they requested an IEP in October 2017 and an initial IEP meeting was not held until January 2018. (P-R) During the 2018-2019 school year the student was not performing up to his capability and was also a victim of consistent bullying at school and exhibited significant levels of anxiety and depression. (Id.) The Parent further argues that the DOE’s school psychologist was unable to say how many times she had directly observed student, admitted that her psychoeducational report was done in 2017 and that she did not make any reports of observing the student directly. (P-R citing T-123-4)

Although the DOE psychologist testified that they have never had a student with superior intelligence in their classrooms, but her Psychoeducational Evaluation in December 2017 describes the student as a “very bright” student who reads at “above grade level standards.” (P-R citing T-63 & P-H). She even admitted that “because of his cognitive functioning”, the student is a student who “needs a challenging environment” (P-R citing T-

122) The DOE psychologist conceded that during the period when the student was in a public school with an IEP in place, he was not performing any classwork. (P-R citing T-120)

She also conceded that nobody was present at the student’s IEP meeting who had a background in servicing students with autism, although it was “very likely” that the student had Autism Spectrum Disorder and no autism services were recommended for the student.

(P-R citing T-98-9 & D-26) The student’s mother testified that that there were numerous behavioral incidents in school, including incidents of the student physically assaulting other students and not participating in classwork. (P-R citing T-159)

The Parent notes that the student’ IEP for the 2018-2019 school year was not issued until January 11, 2019. (P-R citing T-12) The lateness of the IEP constitutes a denial of FAPE. No IEP for the 2019-2020 school year. (P-R) The student’s Neuropsychological

Follow-Up Consultation completed in January 2019 states that the student was showing some improvement in home and treatment settings, but notes that his public school academic environment was chaotic, distracting, demanding, and less individualized and that as a result the student was not engaging in school and was “falling behind academically.” (P-R citing P-F)

At the private school the student is in a class of fourteen students, with ages ranging between nine and eleven, and grade levels fourth and fifth, functionally grouped by skill levels and learning needs, with most students having disabilities related to their social/emotional cognition, development, and self-regulation awareness and management.

(P-R citing P-Q) The student’s class is instructed in a co-teaching format with two teachers, one who holds a Masters in Special Education and one who is NY State Certified in grade school education, with a Math specialist assisting with Math instruction, and specialized subjects such as Engineering, Art, and Spanish taught by subject matter experts. (Id.)

When needed, the private school will intervene to resolve a peer conflict, and provide the student with the space, time, and 1:1 counselling to de-escalate the situation and discuss the issues, and will facilitate a mediation session for the students involved to express themselves and resolve their differences. (Id.) Additionally, the private school is designed to educate twice-exceptional students and the DOE psychologist conceded that the student is a twice exceptional student. (P-R citing P-Q & D-26),

Finally, the Parent notes that the DOE does not allege that the Parents did not cooperate, or that there was any equitable concerns against the Parents. (P-R citing T-19-

20) The Parent testified that the family and the student has to be transported to , which as a student with special needs, he is entitled to door-to-door transportation and the student’s pediatrician has recommended that the student’s travel time be limited to 60 minutes or less (P-R citing T-168 & P-G)

Pursuant to 8 NYCRR § 200.3(a)(1), the membership of each CSE shall include, but not be limited to: (1) the parents or persons in parental relationship to the student;

(2) one regular education teacher of the student whenever the student is or may be participating in the regular education environment; (3) one special education teacher of the student, or, if appropriate, one special education provider of the student; (4) a school psychologist; (5) a representative of the school district who is qualified to provide or supervise special education and who is knowledgeable about the general education curriculum and the availability of resources of the school district, this may also be the same individual appointed as the special education teacher/provider, or the school psychologist; (6) an individual who can interpret the instructional implications of evaluation results, such as the regular education teacher, the special education teacher/provider, the school psychologist, the representative of the school district or a person having knowledge or special expertise regarding the student as determined by the school district; (7) a school physician, if specifically requested in writing by the parent of the student or by a member of the school at least 72 hours prior to the meeting; (8) an additional parent member of a student with a disability residing in the school district or a neighboring school district, whose child has not been declassified or graduated for over five years unless the parents of the student request in writing that the additional parent member not participate in the meeting; (9) other persons having knowledge or special expertise regarding the student, including related services personnel as determined by the party (parents or school district) who invited the individual to be a member of the CSE; and (10) if appropriate, the student.

Here, the record evidence that the student’s IEP meeting had the required members present. (D-26) Additionally, the CSE considered information sufficient regarding the student's interfering behaviors and the evaluative materials reviewed were sufficiently comprehensive regarding the student’s suspected disabilities. (Id.) The DOE is charged with considering the Parent’s IEEs and concerns. (See Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008)(noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student) A CSE must consider IEEs obtained at public expense and private evaluations obtained at private expense, provided that such evaluations meet the district's criteria, in any decision made with respect to the provision of a FAPE to a student. (See 34 CFR

300.502[c];^[8] NYCRR 200.5[g][1][vi]) However, consideration does not require substantive discussion, nor does it require adoption. (See T.S. v. Ridgefield Bd. of Educ., 10 F.3d 87, 89-90 [2d Cir. 1993] citing G.D. v. Westmoreland Sch. Dist., 930 F.2d 942, 947 [1st Cir. 1991]; see Evans v. Dist. No. 17, 841 F.2d 824, 830 [8th Cir.1988]; K.E. v. Indep.

Sch. Dist. No 15, 2010 WL2132072, at *19 [D. Minn. May 24, 2010]; James D. v. Bd. of Educ. of Aptakisic-Tripp Cmty. Consol. Sch. Dist. No. 102, 642 F. Supp. 2d 804, 818

[N.D. Ill. 2009]) Here, there is no question that the Parents’ IEEs and concerns were considered at the IEP meetings. (Supra)

What’s more, the Parents clearly had ample opportunity to participate in the student’s IEP meetings. The Parent attended each IEP meeting, brought a family friend and the student’s private therapist to the January 9, 2018 meeting, further demonstrating her active role in the process. (D-26 citing D-14) The relevant statute regarding the absence of a “parent member”, a procedural deficiency, states as follows:

the additional parent member not participate in the meeting; (emphasis added)

As noted above, a FAPE is offered to a student when (a) the DOE 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. (See Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch.

Dist., 427 F.3d 186, 192 [2d Cir. 2005]). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA. (See A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v.

Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir.2003]; Perricelli v. Carmel Cent.

Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]).

Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a)

Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007] aff'd, 2008 WL 3852180 [2d Cir. Aug.

19, 2008])

There is no evidence in the record that the absence of the “parent member” denied the Parent the opportunity to participate in the IEP meeting. Additionally, the mere parental disagreement with a school district's proposed IEP and placement recommendation does not amount to a denial of meaningful participation. (See P.K. v. Bedford Cent.

Sch. Dist., 569 F. Supp. 2d 371, 383 (S.D.N.Y. 2008)("A professional disagreement is not an IDEA violation."), Sch. for Language and Communication Development v. New

York State Dep't of Educ., 2006 WL 2792754, at *7 (E.D.N.Y. Sept. 26,

2006)("Meaningful participation does not require deferral to parent choice."), Paolella v.

District of Columbia, 2006 WL 3697318, at *1 [D.C. Cir. Dec. 6, 2006]) I find that the procedural deficiency in this case does not amount to a denial of FAPE.

Based on the evidence above, the hearing record demonstrates that the DOE recommended IEPs were appropriate to address the student's needs as identified in the evaluative information before the CSE and was reasonably calculated to enable him to receive educational benefits. (See Rowley, 458 U.S. at 206-07 and Cerra, 427 F.3d at 192 [2d Cir. 2005])

Regarding the DOE’s concession that nobody was present at the student’s IEP meeting who had a background in servicing students with autism, although it was “very likely” that the student had Autism Spectrum Disorder and no autism services were recommended for the student. (P-R citing T-98-9 & D-26) Generally, a CSE is not required to specify methodology on an IEP, and the precise teaching methodology to be used by a student's teacher is usually a matter to be left to the teacher. (See Rowley, 458 U.S. at 204, M.M. v. Sch. Bd. of Miami-Dade County, 437 F.3d 1085 [11th Cir.

2006], Lachman v. Illinois State Bd. of Educ., 852 F.2d 290, 297 [7th Cir. 1988], A.D., 2013 WL 1155570, at *12; F.L., 2012 WL 4891748, at *9; K.L., 2012 WL 4017822, at

*12; Ganje, 2012 WL 5473491, at *11-*12, H.C. v. Katonah-Lewisboro Union Free Sch.

Dist., 2012 WL 2708394, at *15, *17 [S.D.N.Y. May 24, 2012], A.S., 10-cv-00009 [noting the "broad methodological latitude" conferred by the IDEA] and SRO Nos. 12-017, 11-

133, 11-089, 11-058, 11-007, 10-056, 09-092, 08-075, 07-065, 07-054, 07-052, 06-022,

05-053, 94-26 & 93-46)

This amounts to conflicting viewpoints over the best manner in which to deliver special education instruction and services to the student. (See, J.A. v. New York City Dep't of Educ., 2012 WL 1075843, *9-*10 (S.D.N.Y. Mar. 28, 2012) (resolving conflicting views over the quality and extent of adult support services that must be provided to a student), D.S. v. Hawaii, 2011 WL 6819060, at *10 (Dec. 27, 2011) (commenting that the IDEA does not set forth with specificity the level of adult support services to be provided to particular students) The IEPs in this case are personalized to address the student's needs and the DOE is not required to maximize the student's potential. (A.C., 553 F.3d at 173, T.L. v. Dep't of Educ. of City of New York, 2012 WL 1107652, at *15

(E.D.N.Y. Mar. 30, 2012)) The DOE is not required to guarantee a specific level of benefit to the student and instead is required only to offer an IEP that is designed to offer the opportunity for greater than trivial advancement. (A.C., 553 F.3d at 173, Cerra, 427 F.3d at 195, Walczak, 142 F.3d at 130, Connor v. New York City Dep't of Educ., 2009 WL 3335760, at *5–*6 (S.D.N.Y. 2009)) The DOE has satisfied this standard.

The BIP and the recommendations on the resulting IEPs sufficiently address the student’s behaviors, which the Parents’ psychologist testimony indicates are not severe at the private school. (Supra)

Regarding the Parent’s allegation that the DOE did not produce an IEP in time for the start of the student’s 2018-2019 school year. The record reveals that the Parent first rejected the DOE’s recommendations, then on October 26, 2018 requested another

IEP. The DOE quickly conducted a Neuropsychological Evaluation on January 3, 2019 and held an IEP meeting for the student on January 11, 2019. (D-26) Under the circumstances, I do not find the Parent’s allegation equitable, as it was the Parent that stymied the DOE’s ability to have an IEP in place for the student at the beginning of the 2018-2019 school year.

The student’s IEPs in this case are procedurally and substantively sound, reasonably calculated to provide the student with an educational benefit and “appropriately ambitious in light of the child’s circumstances.” (D-4, D-24, P-B, see also Endrew F. v. Douglas County Sch. Dist. RE-1, 580 U.S. __, 137 S. Ct. 988, 998-1001 [2017])

For all of the reasons stated herein, I find that the DOE provided the student with a FAPE. Having so determined, the necessary inquiry is at an end and I need not determine whether the private school was an appropriate placement or whether equitable grounds would bar an award on behalf of the Parent.

NOW therefore, it is hereby

ORDERED that the Parent’s request for relief is denied; and it is further

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

ORDERED that the CSE shall forthwith reconvene to produce a new IEP for the student that considers all of the student’s available evaluations and any related information and produce a new IEP for the student’s 2020-2021 school year.

DATED: May 28, 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 Request for Referral 10/23/17 DOE 02

02 Psychoeducational Evaluation 12/21/17 DOE 10

03 IEP Meeting Notice 12/21/17 DOE 03

04 IEP 01/04/18 DOE 14

05 PWN 01/09/18 DOE 05

06 Withdrawal of Consent 10/18/18 DOE 01

07 Request for Re-Opening 10/26/18 DOE 01

08 PWN 10/30/18 DOE 04

09 Consent for Evaluation 11/16/18 DOE 02

10 Assessment Planning various DOE 01

11 OT Evaluation 12/10/18 DOE 11

12 Classroom Observation 12/13/18 DOE 02

13 IEP Meeting Notice 12/21/18 DOE 03

14 IEP Minutes 01/11/19 DOE 01

15 Receipt of IEP 01/17/19 DOE 01

16 Consent for Services 02/04/19 DOE 02

17 Authorization to Attend 02/04/19 DOE 03

18 Behavior Supports 11/15/18 DOE 04

19 Teacher Report 12/05/18 DOE 08

20 FBA Interview 09/27/18 DOE 04

21 FBA 01/03/19 DOE 09

22 BIP 01/03/19 DOE 09

23 IEP Meeting Notice 11/07/19 DOE 03

24 IEP Revision undated DOE 14

25 SESIS Log various DOE 10

26 Withdrawal / Not Received N/A DOE N/A

27 Closing Statement 03/20/20 DOE 17

A DPC 09/05/19 PARENT 11

B IEP 01/11/19 PARENT 14

C 10-Day Notice 04/16/19 PARENT 01

D DOE Response 04/19/19 PARENT 01

E 10-Day Notice 08/20/19 PARENT 03

F Neuropsychological Evaluation 09/07/18 PARENT 24

G Medical Request undated PARENT 08

H Psychoeducational Evaluation 12/21/17 PARENT 08

I PWN 01/09/18 PARENT 03

J PWN 01/15/19 PARENT 03

K Consent for Services 01/15/19 PARENT 02 L Enrollment Contract 2018-2019 PARENT 07 M Enrollment Contract 2019-2020 PARENT 07 N Affidavit from Private School 10/03/19 PARENT 01 O Class Schedule 2019-2020 PARENT 01 P Emails 03/2018 PARENT 02 P-8 Email 03/16/18 PARENT 01 Q Withdrawn / Not Received N/A PARENT N/A R Closing Statement 03/20/20 PARENT 18

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

Footnotes

[8] NYCRR § 200.3(a)(1)(viii) states: 200.3 Committee on special education and committee on preschool special education. (a) Each board of education or board of trustees shall appoint: (1) committees on special education in accordance with the provisions of Education Law, section 4402, as necessary to ensure timely evaluation and placement of students. The membership of each committee shall include, but not be limited to: (viii) an additional parent member of a student with a disability residing in the school district or a neighboring school district, provided that the additional parent member may be the parent of a student who has been declassified within a period not to exceed five years or the parent of a student who has graduated within a period not to exceed five years. Such parent is not a required member if the parents of the student request that

New York City Department of Education, Impartial Hearing Decision