NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
FINDINGS OF FACTS & DECISION
Case Number: 189019
NYS Identifier Number
Student’s Name: - To be Edited and
Removed by the NYC-DOE
Date of Birth:
District:
Hearing Requested By: Parent
Dates(s) of Hearing: 12/17/19, 04/09/20, 06/11/20,
08/10/20 & 08/26/20
Actual Record Close Date: 11/16/20
Hearing Officer: Edgar De Leon
NAMES AND TITLES OF PERSONS WHO APPEARED
Name Title For Date Attorney DOE 12/17/19 04/09/20 (T) 06/11/20 (T) 08/10/20 (T) 08/26/20 (T) Attorney DOE 12/17/19
School Psychologist DOE 12/17/19
Principal DOE 04/09/20 (T) Witness DOE 06/11/20 (T) 08/10/20 (T) Attorney PARENT 12/17/19 04/09/20 (T) 06/11/20 (T) 08/10/20 (T) 08/26/20 (T)
Mother PARENT 12/17/19 04/09/20 (T) 06/11/20 (T) 08/10/20 (T) 08/26/20 (T) Neuropsychologist PARENT 08/26/20 (T) Head Teacher PARENT 08/26/20 (T)
DOCUMENTATION ENTERED INTO RECORD
Number/Letter Title Dated For # of Pages
DOE’S EXHIBITS
Ex Date Title/Name Pages
hibit
1 08/15/20 IEP 18
2 08/15/20 IEP Meeting Minutes 5
3 08/13/20 Meeting Notice 3
4 08/20/20 Prior Written Notice 4
5 04/29/20 IEP 14
6 03/29/20 Meeting Notice 3
7 04/30/20 Meeting Notice 3
8 03/27/20 Psychological Update 6
9 05/09/20 Classroom Observation 4
10 06/17/20 Prior Written Notice 5
11 05/13/20 Educational Progress Report 2
12 Various Preschool Reports 30
13 12/20/20 City Sounds Speech/Lang. Turning 5 4
14 Unknow Consent for Testing 1
15 01/06/20 CPSE IEP and cover sheet 22
16 07/12/20 CPSE IEP 22
17 07/12/20 Final Notice of Recommendation 2
18 Various CPSE IEP 22
19 05/16/20 Final Notice of Recommendation 2
20 04/15/20 Annual Education Report 11
21 Various Private Neuropsychological Evaluation 16
22 01/06/20 Child Outcomes Summary Form 9
23 Various SESIS Events Log 3
24 4/18/20 Affidavit 2
25 8/15/19 handwritten notes 2
26 09/24/20 Closing Statement 12
***DOE exhibits “3”, “8”, “12”, “14”, “15”, “16”, “17”, “18” and “23” were not formally received in evidence***
PARENT’S EXHIBITS
A. 9/13/19 Impartial Hearing Request 6
B. 8/21/19 Notice of Unilateral Placement (10-Day Notice) 6
C. 5/13/19 Educational Progress Report 2
D. 9/5/19 Parent Letter to CSE Chairperson 1
E. 3/28/19 Enrollment Contract 2
F. 2019-2020 Class 225 Schedule 1
G. 2019-2020 Mid-Year Report Card 14
H. 1/18/20; 1/21/20 Neuropsychological Consultation 3
I. 3/2/20 Affidavit - 8
J. 3/2/20 Affidavit - 14
K. 6/27/19 Parent Letter to CSE 1
L. 8/5/20 Affidavit - Dr. 17
M. Undated School Remote Learning Plan 5
N 09/24/20 Closing Statement 28
***Parent’s exhibits “F”, “I” and “M” were not formally received in evidence***
N/A N/A N/A IHO N/A
On September 21, 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 17, 2019, April 9, 2020, June 11, 2020, August 10, 2020 and August 26, 2020. The parties opted to submit written closing statements. The
DOE’s written closing statement was received on September 24, 2020. (D-26) The Parent’s written closing statement was also received on September 24, 2020. (P-N) 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 was 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) Tuition reimbursement and/or funding for the student’s placement at the private school for the 2019-2020 school year.
THE DOE’S CASE
The DOE called (3) witnesses to testify on its behalf, one of which testified on direct examination via affidavit pursuant to 8 NYCRR 200.5[j][3][xii][f]. (D-24) The Parent crossed examine the DOE’s affiant. (T-64) The DOE also submitted (17)
document into evidence. In sum, substance and relevant part, the testamentary and documentary evidence for and against the DOE’s case is incorporated in the decision below.
THE PARENT’S CASE
The Parent called (2) witnesses to testify on her behalf via affidavit pursuant to 8 NYCRR 200.5[j][3][xii][f] and submitted (11) documents into evidence. (P-J & P-L) The DOE declined to cross examine the Parent’s affiants. (T-227 & 274) 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 testamentary and documentary evidence in this case is as follows:
In support of its argument that it provided the student with a FAPE, the DOE argues that the CSE team in April and August of 2019 had sufficient clinical information to assess the student’s educational needs, like a classroom observation, preschool progress reports, an up-to-date speech and language assessment, an educational progress report, a psychological update and a neuropsychological evaluation. (D-26 citing D-8, D-9, D-11, D-12 & D-13) However, the psychological update (D-8) and the preschool reports (D-12) were not received in evidence and cannot be considered in this decision.
The DOE notes that the school psychologist testified that the IEP team included counseling on the student’s IEP as a related service to address the student’s social emotional needs. (D-26 citing T-104-5) The CSE team recommend an ICT class for the student, along with related services for counseling therapy, speech language therapy, and occupational therapy. (D-26 citing D-13)
Citing testimony from the head teacher at the private school, the DOE argues that the private school is too restrictive for the student, because she did not exhibit any social problems and “socialized nicely” with her peers. (D-26 citing T-278) No “fight or flight” mode or breakdown in a stressful situation has been observed at the private school and its progress reports show that the student was making progress towards her goals, while the school never reduced her mandate for related services. (D-26 citing T-279 & 293)
The DOE also argues that it would be unfair to have the agency pay for the student’s “remote learning” during the COVID-19 pandemic, because there is no record of the student’s class schedule during remote learning, her attendance record, or any changes to the tuition policy even though it is not altogether clear whether the student received different services during school closure. (D-26)
Finally, the DOE asserts that equitable considerations bar an award on behalf of the Parent because she signed the enrollment contract for the private school during the middle of the 2018-2019 school year, well before the start of the 2019-2020 school year and several months before the Parent received the DOE’s public-school placement offer in June of 2019. (D-26 citing D-10 & P-E)
The Parent’s argument in opposition to the DOE’s assertion that it provided the student with a FAPE, are centered on an assertion that the DOE treated the student’s August 15, 2019 IEP meeting, which superseded the student’s April of 2019 meeting, erroneously “minimal”, during which a “new” IEP could not be created and solely convened to add missing material such as “parent concerns” or to include more information on the IEP document from existing evaluative material. (P-N citing T-88-9, 116, 121, 158 & 177)
The Parent cites the testimony of the independent neuropsychologist, noting the severity of the student’s attentional lapses, working memory limitations and processing deficits, which significantly impaired her cognitive processing speed and resulted in scores that place the student in single digit percentiles and “even when provided with a structured 1:1 environment, the student. has difficulty maintaining attention for a brief period of time” and placing her “far below average in 4 out of 5 domains on preschool evaluation scale,” (P-N citing T-162, 250 & D-21) The neuropsychologist, the student’s teachers and related service providers, recommended that she be placed in a small, structured, full-time specialized educational setting because “everyone at the IEP meeting suggested that she needs to be placed in a language-based school - the. team did not offer that.” (P-N citing T-118, 121-2, 126-7, 153-4, 179, D-2 & D-21)
Additionally, the student’s classroom observation and educational progress report confirm that she requires consistent 1:1 adult intervention in order to acquire new skills and to function appropriately in the classroom. (P-N citing D-9-3 & D-11) The fact of the matter, is that the student’s evaluative materials do not comport with the CSE team’s recommendations.
The Parent notes that the DOE’s school psychologist testified that a general education program like an ICT class, was NOT appropriate for the student considering her delays. (P-N citing T-188) By contrast, the private school is a small, structured, therapeutic, individually tailored program, where the student has been making steady progress. (P-N) The Principal of the DOE recommended testified that stated that if the student had attended her school, the school would have implemented her IEP, but the student would not have received special education ICT services for science because her IEP did not mandate ICT support for anything other than math, ELA and social studies. (P-N citing T-63, D-1 & D-24) The school psychologist confirmed that her understanding is that an IEP “reconvene” team, like the one that met in August of 2019 in this case, can only add information into an existing IEP document and “automatically” copy it over, but that it lacks the authority to create a “new” IEP. (P-N citing T-88, 91,
116-7 & 177) Such a policy effectively prevented the CSE team in August of 2019 from truly considering the evaluative and related materials before it, because it felt constrained to merely “update” the April 2019 IEP.
For example, the psychologist testified that she did not believe that the student currently presented with any diagnoses, including ADHD, testimony which is controverted by the testimony of the neuropsychologist that the student’s diagnosis remained valid and are included in the student’s neuropsychological evaluation. (P-N citing T-189, 240-1 & D-21) The Parent notes that the recommendation of an ICT class for the student is inconsistent with the CSE team’s minutes that indicate that: “No
Changes Were Considered” and note that: “Everyone at the IEP meeting suggested that [STUDENT’S INITIALS] needs to be placed in a language-based school. The team did not offer that.” (P-N citing T-153 & D-2)
Again, citing extensively to the record, the Parent notes that the student’s August 2019 IEP team decided upon OT services without ever having considered any of the available OT evaluative information. (P-N citing T-118-9, 130-1, 150, 158, 183-4) The August 2019 CSE team was told that the student needed an intensive amount of adult support; that she was sensory-seeking; that she had difficulties with social cues; that she was anxious and had interfering behaviors (“fight or flight”); and that she required a small school environment. (P-N citing T-130-2, 154-8 & 180) A fact confirmed by the neuropsychologist who testified that he observed a “fight or flight” response numerous times during his many observations of the student in which she threw herself on the floor and was kicking or screaming due to anxiety or task avoidance. (P-N citing T-248-
50) In fact, the school psychologist conceded that the student, with such considerable delays, should not be placed in a general education setting. (P-N citing T-187-8)
The neuropsychologist who testified for the Parent diagnosed the student with ADHD, sensory processing and integration challenges, features of Autism Spectrum Disorder, Unspecified Neurodevelopmental Disorder as well as the educational implications of these diagnoses, which include a language-based learning disorder. (P-
N citing T-240-1 & P-L) His uncontroverted testimony is that the student requires a small, structured, full-time specialized setting and that a less restrictive placement, such as an ICT program, would be completely inappropriate and would likely lead to educational regression because the student could not keep pace with the demands of such a classroom and needs more individualized support. (P-N citing T-5-8, 238, 252-5, 258 & P-L) He believes that the private school is an appropriate placement for the student because she receives necessary 1:1 teacher support and highly specialized instruction there as well as a functionally suitable peer group. (P-N citing Tr. 260-1 & P-
L)
At the private school, the student was in a classroom with (7) other students and
(2) teachers, with an additional teacher pushing into the classroom for literacy and math and related service providers also incorporated into the program. (P-N citing T-277 & P-
J) The student received small group instruction, which is necessary because of her significantly compromised ability to focus and attend to instructional tasks, while using the Wilson Foundations decoding curriculum, which is a research-based, multisensory language program and which is used across multiple learning domains (P-N citing T-275
& P-J) The student also receive classroom modifications at the private school, including sensory diet, chunking, repetition, preview and review, check-ins, verbal, visual and auditory cues, allowing the student to make progress in recognition of letters and corresponding sounds, in reading comprehension, where when she started at the private school, she was below 90% comprehension in Fountas and Pinell Level A books, and with assistance, was able to comprehend Level K books and is much more focused and on-topic. (P-N citing P-J) The student also made progress in math and in writing. (P-N citing T-276 & P-J) The related services of counseling, occupational therapy and speech/language therapy have supported the student’s social-emotional growth, increased her level of engagement, aided in the development of fine motor skills, helped with self-regulation and caused a decrease in frustration levels. (P-N citing T-280-2, 292 & P-J)
In this case, the student’s evaluative materials just do not support placing the student in an ICT class. As noted above, an appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs. (See 34 C.F.R. § 300.320[a][1] and 8 NYCRR 200.4[d][2][i]) Here, the resulting IEP simply does not. The neuropsychologist conducted a comprehensive evaluation of the student resulting in the following recommendations:
is a capable and engaging but vulnerable young girl who is demonstrating solid cognitive reasoning abilities and learning potential. However, given her history and ongoing areas of vulnerability, including in speech and language, attention, and cognitive efficiency, she requires intensive, specialized, and individualized interventions as part of a full-time special education placement. Foremost, must be placed in a small, full-time special education program that includes an emphasis on language-based instruction. She requires a structured yet nurturing environment, with opportunities for frequent one-to-one interactions and strong supports for her social-emotional development. An appropriate setting must include positive cognitive and social models, and she must not ·be placed with children who present.
with greater cognitive or learning challenges. Given 's needs, a less restrictive placement would not be appropriate as it would not have the specialized, focused level of instruction she requires at this time. Any fewer or less specialized services than detailed here would likely lead to regression across domains and be detrimental to 's development. (D-21)
These recommendations are completely inconsistent with the placement of the student in a general education “ICT” class with perhaps (30) plus students but are completely consistent with the student’s placement at the private school, and the services she receives thereat as detailed above. For this reason, and the others cited above, I find that the DOE’s August 2019 IEP, which supersedes the student’s April 2019 IEP, did offer the student a FAPE. I further find that the records as a whole, clearly demonstrates that the private school program addresses the student’s needs and that she is progressing under the program. (Supra) The Parent only needs to demonstrate that the private school provides educational instruction specially designed to meet the unique needs of the student, supported by such services as are necessary to permit her to benefit from instruction. (Gagliardo & Frank G., Supra) The uncontroverted testamentary and documentary evidence that at the private school meets that standard. There is nothing in the record that sustains a finding that the Parent has not cooperated with the CSE.
Therefore, I find that equitable considerations do not bar an award of tuition reimbursement to the Parent.
The IDEA specifically includes transportation, as well as any modifications or accommodations necessary in order to assist a student to benefit from his or her special education, in its definition of related services. (See 20 U.S.C. § 1401[26], see also 34 CFR 300.34[a], [c][16]) In addition, State law defines special education as “specially designed instruction . . . and transportation, provided at no cost to the parents to meet the unique needs of a child with a disability,” and requires school districts to provide disabled students with “suitable transportation to and from special classes or programs.”
(See Educ. Law §§ 4401[1], 4402[4][a], see also Educ. Law § 4401[2] and 8 NYCRR 200.1[ww]) Specialized transportation must be included on a student's IEP if required to assist the student to benefit from special education. (SRO No. 03-053) If a CSE determines that a student with a disability requires transportation as a related service in order to receive a FAPE, the district must ensure that the student receives the necessary transportation at public expense. (See Transportation, 71 Fed. Reg. 46576 [Aug. 14, 2006]; see 8 NYCRR 200.1[ww])
The State Education Department has indicated that a CSE should consider a student's mobility, behavior, communication, physical, and health needs when determining whether or not a student requires transportation as a related service, and that an IEP “must include specific transportation recommendations to address each of the student's needs, as appropriate.” (See “Special Transportation for Students with Disabilities,” VESID Mem. [Mar. 2005]) Other relevant considerations may include the student's age, ability to follow directions, ability to function without special transportation, the distance to be traveled, the nature of the area, and the availability of private or public assistance. (See Donald B. v. Bd. of Sch. Commrs., 117 F.3d 1371, 1375 [11th Cir. 1997] and Malehorn v. Hill City Sch. Dist., 987 F. Supp. 772, 775 [D.S.D. 1997])
When reviewing the transportation provisions made for a student by a district, the relevant question is whether the transportation arrangements are appropriate to meet the student's needs. (SRO No. 03-054)
In this case, there is no indication in the hearing record as to the student's need for special transportation during the 2019-2020 school year or any indication that special transportation was previously requested. There is no IEP in evidence providing for the student to receive special education transportation services and the student’s August 2019 IEP specifically does not recommend those services. Additionally, there is no evidence in the hearing record as to how the student was transported to and from the private school each day during the 2019-2020 school year. Accordingly, the hearing record does not support a finding that the DOE denied the student a FAPE due to the lack of provision for special transportation.
However, this does not constitute a determination regarding the student's entitlement to transportation as available to regular education students or suitable transportation as available to students attending nonpublic schools “for the purpose of receiving services or programs similar to special education programs recommended” by the CSE. (See Educ. Law 3635; 4402[4][[d]) If the DOE has not done so already, it may consider transportation of the student to the private school during the 2019-2020 and 2020-2021 school years in accordance with the above.
If the parent disagrees with an evaluation obtained by the school district, the parent has a right to obtain an independent evaluation at public expense. Regulations of the Commissioner of Education § 200.5(g). (“NYCRR § 200.5”) If the parent request an independent educational evaluation at public expense, the school district must, without unnecessary delay, either ensure an independent evaluation is provided at public expense or initiate an impartial hearing to show that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria. 8 NYCRR § 200.5(g)(iv). Additionally, 34 C.F.R. 300.502(d) and 8 NYCRR 200.5(i)(3)(vi)
provide that if a hearing officer requests an independent educational evaluation as part of a hearing, the cost of the evaluation must be at public expense.
The statute as written contemplates that the Parent will give the DOE fair notice of his or her request, so that the DOE’s option to “either ensure an independent evaluation is provided at public expense or initiate an impartial hearing.” Here, the Parent’s DPC does not request reimbursement for an independent evaluation.
Under the IDEA and its implementing regulations, a party requesting an impartial hearing may not raise issues at the impartial hearing that were not raised in its due process complaint notice unless the other party agrees, (see 20 U.S.C. § 1415[f][3][B]; 34 CFR 300.507[d][3][i], 300.511[d] and 8 NYCRR 200.5[j][1][ii]), or the original due process complaint is amended prior to the impartial hearing per permission given by the IHO at least five days prior to the impartial hearing. (See 20 U.S.C. § 1415[c][2][E][i][II]; 34 CFR 300.507[d][3][ii]; 8 NYCRR 200.5[i][7][b]; see, e.g., N.K. v. New York City Dep't of Educ., 961 F. Supp. 2d 577, 584 [S.D.N.Y 2013]; see B.M. v. New York City Dep't of Educ., 569 Fed. App'x 57, 2014 WL 2748756, at *1-*2 [2d Cir. June 18, 2014])
Moreover, it is essential that the IHO disclose his or her intention to reach an issue which the parties have not raised as a matter of basic fairness and due process of law. (SRO No. 91-40 and John M. v. Bd. of Educ., 502 F.3d 708 [7th Cir. 2007])
Although an IHO has the authority to ask questions of counsel or witnesses for the purposes of clarification or completeness of the hearing record (8 NYCRR
200.5[j][3][vii]), or even inquire as to whether the parties agree that an issue should be addressed, it is impermissible for the IHO to simply expand the scope of the issues raised without the express consent of the parties and then base his or her determination on new issues raised sua sponte. (See Dep't of Educ. v. C.B., 2012 WL 220517, at *7-
*8 [D.Haw., Jan. 24, 2012] [finding that the administrative hearing officer improperly considered an issue beyond the scope of the parents' due process complaint notice])
Accordingly, I find that the Parent is not entitled to reimbursement for the cost of the student’s independent evaluation. Nevertheless, I will exercise my discretion and order the DOE to conduct evaluations of the student of the student in any areas of her suspected disabilities that have not been evaluated in the last (2) years, which the Parent may or may not agree with, and if she does not agree with the evaluation, the Parent may invoke their right to an IEE at that time.
For all of the reasons stated herein, I find that the Burlington/Carter test is satisfied in favor of the Parent and that she has met her burden under Schaffer to prevail in her request for tuition reimbursement.
NOW therefore, it is hereby
ORDERED that the DOE has denied the student a FAPE for the 2019-2020 school years, and that upon its receipt of reasonably satisfactory proof of services having been rendered, the DOE shall either reimburse the Parent and/or directly pay the cost of the student’s tuition and related services at the private school for the entirety of the student’s 2019-2020 school year thereat; and it is further
ORDERED that the DOE shall also conduct a re-evaluation of the student in all areas of her suspected disabilities, not evaluated within the last two years, for the 2021- 2022 school year; and it is further
ORDERED that the CSE shall forthwith reconvene after the completion of the student’s evaluations and consider all of the student’s evaluations and any other relevant information and produce a new IEP for the student’s 2021-2022 school year; and it is further
ORDERED 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: November 23, 2020 _____________________________
New York, New York Edgar De Leon - IHO
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of this decision, the parent and/or the PublicSchool District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.
An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov. (Rev. 07/09/20)