NY IHO #189122: New York City... | Special Education Law

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: 189122

NYS Identifier Number

Student’s Name: - To be Redacted

by NYC-DOE

Date of Birth:

District:

Hearing Requested By: Parent

Dates(s) of Hearing: 06/17/20 & 07/01/20

Actual Record Close Date: 11/09/20

Hearing Officer: Edgar De Leon

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date DOE Representative DOE 06/17/20 (T) 07/01/20 (T)

Teacher DOE 06/17/20 (T) Assistant Principal DOE 07/01/20 (T) Attorney PARENT 06/17/20 (T) 07/01/20 (T)

Mother PARENT 06/17/20 (T) 07/01/20 (T)

Father PARENT 06/17/20 (T) 07/01/20 (T)

Psychologist PARENT 07/01/20 (T) Witness PARENT 07/01/20 (T)

DOCUMENTATION ENTERED INTO RECORD

Number/Letter Title Dated For # of Pages

01 Closing Statement 07/17/20 DOE 02

PARENT’S EXHIBITS

No. Of

NUMBER DATE DOCUMENT

Pages

A 9/16/19 Hearing Request 8

B 8/20/19 Ten Day Notice 3

C 8/20/19 Ten Day Notice 1

D 1/30/19 Psychological Evaluation 6

E 4/27/19 Letter from Therapist 3

F 1/23/19 Updated Letter from Therapist 1

G Undated Program 8

Description

H January 2020 Report 4

Card

November

I Progress 6

2019

Report

February

J Progress 6

2020

Report

February Special

K 3

2020 Education

Progress Report

February Counseling

L 2

2020 Progress

Report

M 6/29/19 Enrollment 3

Contract

Correspondence with DOE

N 4/17/19 2

Re: Concerns about Academic Performance

's Remote

O 5/7/20 4

Learning

Program

Six Points of Audiological Consensus on Central

P 3/28/18 15

Auditory Processing Disorders (CAPD)

Functional Assessment Checklist for Teachers and

Q 6/3/19 2

Staff (FACTS-Part A)

R Undated Text from Tutor 2

S 6/30/20 Affidavit of Testimony: 4

T 6/30.20 Affidavit of Testimony: 6

U 6/30/20 Affidavit of Testimony: 4

V 07/18/20 Closing Statement 16

I Resolution Agreement 01/13/20 IHO 02

On September 23, 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 June 17, 2020 and July 1, 2020. The parties opted to submit written closing statements. The DOE’s written closing statement was received on July 17, 2020. (D-1) The Parent’s written closing statement was received on July 18, 2020.

(P-V) 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 2018-2019 and 2019-2020 school year.

At the impartial hearing, the Parent seeks the following relief:

(a) A finding that the student was denied a FAPE for the 2018-2019 and 2019- 2020 school years; and

(b) Reimbursement of tuition for the student’s enrollment at the private school during the 2019-2020 school year; and

(e) Reimbursement for the cost of a psychological evaluation, conducted in January 2019; and

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

The parties agree that the student was designated for services on a 10-month basis for the 2018-2019 and 2019-2020 school years. (T-7-8)

THE DOE’S CASE

The DOE called (2) witnesses to testify on its behalf and submitted (1) document into evidence. In sum, substance and relevant part, the testimony and documentary evidence on behalf of the DOE is as follows:

The DOE’s first witness is a teacher. She is a special ed social studies teacher, certified in grades 7 through 12. (T-19) The student was in her “ICT” global history class for 9th grade during the 2018 to 2019 school year. (T-20) The student had a 1:1 paraprofessional. (T-21) The student lacked focus and she had discussed with her that she had some anxiety in class. (T-21-2) The student did not utilize her paraprofessional in the ways it is discussed in her IEP. (T-22)

The witness testified that she attend the student’s May 2019 triennial IEP meeting as the special education teacher. (T-23) The student’s psychoeducational evaluation was discussed at the meeting. (T-24-5) The IEP team added the SETSS program to the student’s IEP. (T-25) She cannot recall if there was any mention of creating an FBA for the student. (T-26)

The witness further testified that she believe that the student’s disabilities did interfere with her learning, but the management needs and supports that were put in place from the student’s prior IEP into were not utilized to the fullest on the student's end, like not utilizing her paraprofessional to the maximum, as when the student received one-on-one assistance she was more successful because she needed a lot of prompting and check-ins. (T-27) Counseling was recommended for the student. (T-27-

8) She messaged the Parent a lot regarding the student not showing up for exams or for her scheduled extra time on tests, or not submitting work in for what was discussed at the first parent-teacher conference. (T-28) The student’s IEP team was attended by the student’s psychotherapist, her tutor, herself as the special education teacher, the Parents, and the school psychologist. (T-29) When asked if the student had progressed by the end of June 2019, the witness responded as follows:

She, for me, had sort of, remained the same throughout the year with a little bit of improvement with meeting the deadlines. This IEP that was going to be put in place was later on. So it was already May at the time. I think having the counseling and some of these added supports on would have been more useful to . However, I guess I can't really assume anything since she didn't return to the school and utilize any of the supports that we did. She had moved to another school.

So really looking at the former IEP and following the management needs made in that IEP, I found that she didn't get worse, but there wasn't a big improvement either. (T-30-1)

On cross examination, the witness testified that the student scored a "needs improvement" in her second semester with her and that the student was unable to work independently. (T-32) Nevertheless, they removed the student paraprofessional from her IEP. (Id.) She agreed that the student’s wandering in class was evidence of ADHD.

(T-33) She also knows that the student has significant difficulty understanding verbal directions as part of her severe auditory processing disorder and as a result is was recommended that she get information visually. (T-35) Additionally, the student’s panic attacks and depression interfered with her classroom performance. (T-37) There was no re-direct examination of the witness. (T-37)

The DOE’s second and final witness is an Assistant Principal for special education. (T-55) She testified that she has met the student in this case. (T-57) For the 2019-2020 the student was recommended for a 15:1 class that at the school has a composition of 15 students with a teacher, with the curriculum is aligned for the state standards, and following the same course sequence as their general education classes, with students in the class range various disability levels, like a learning disability within the class, students who have a speech impairment, but the function of the class is such that the deficits for that particular course warrant the special education classroom, in other words, the needs of the student could not be met within a general education classroom. (T-57-8) There were three such classes for the 2019-2020 10th grade. (T-58)

The witness testified that for the 2019-2020 school year, the student was recommended for an ICT class which would have been composed of up to (34) students with a max of (12) students in the class who have an IEP, with a general education teacher and a special education teacher in the room. (T-59-60) The student would have been programmed two times per week for a pull-out math and ELA SETSS program of (8) students where she would have received supplemental instruction aligned to the math course content for her grade level, as well as a quiet space and additional time to be offered support. (T-62-3)

The witness also testified that at the Parent’s request, the student was re-evaluated regarding her social-emotional struggles at school and at home. (T-65)

Transportation services were not recommended for the student’s 2019-2020 school year. (T-68)

On cross examination, the witness testified that she was aware that the student was having panic attacks, hiding in the bathroom and the nurse’s office and not attending her classes consistently. (T-70) She agrees that the student's anxiety was significantly interfering with her ability to learn. (T-72) On re-direct examination, the witness testified that she believes that the recommendations that were made could address the issues that the student was having and allow her to progress academically.

(T-74) There was no re-cross examination of the witness. (T-74-5)

THE PARENT’S CASE

The Parent called (3) witnesses to testify on her behalf via affidavit pursuant to ^[8]

NYCRR 200.5[j][3][xii][f] and submitted (22) documents into evidence. (P-S, P-T & P-U)

The DOE declined to cross examine the Parent’s affiants. (T-80-1) In sum, substance and relevant part, the testimony and documentary on behalf of the Parent is as follows:

The Parent’s first witness is the head of the private school. (P-S) She stated the following:

9. Within our school, provides various types

of programs, one of which is . is for college-bound students with learning differences. The Program, in its current form, was developed in 2007 and includes staff to provide related services of speech and counseling, social skills training, implement accommodations and modifications, provide 1:1, small group and multi-sensory instruction and assist in developing weekly class outlines for students who need extra visual materials.

10. accepts children whose diagnoses/classifications include but are not limited to the following: ADD, ADHD, learning disabilities, high functioning Autism, speech and language delays, auditory processing disorders or other health impairment. All students must be able to be mainstreamed with the proper supports.

11. I am familiar with , who enrolled in for the 2019-2020 school year. I speak with her teachers and related service providers on a daily basis and observed in multiple settings including the classroom, cafeteria, activities and play rehearsal.

12. Prior to admitting into , I met with the family twice and with once. I reviewed all IEP’s and private evaluations. I interviewed and her parents to discuss their goals, ’s learning patterns as well as her struggles in school.

13. During the admissions process, I learned that was very capable of succeeding but required a program that would address both her inattentiveness and auditory processing. Additionally, we would need to focus on her anxiety, which creates more difficulty for her. She needed a small class size, a challenging curriculum, multi-sensory instruction, and assistance with organization and executive functioning skills. From ’s experience with other student with similar learning profiles, I believed staff support with class outlines and summaries as well as regular communication with her parents regarding her assignments would be especially helpful.

15. In her work with , incorporates the following strategies/tools:

a. Seating in the front of the class to hear the teacher clearly and away from any other distractions;

b. Smartboard, Posters, Charts and similar visual aids;

c. Notes on Whiteboard and Weekly Outlines, which reviews before her classes/lessons. Weekly Outlines also help to know what will be reviewed in classes, thereby reducing her panic/anxiety, and allow her to plan her time management around upcoming assignments. The Outlines better prepare her to ask questions or otherwise plan how she will participate in class;

d. Modeling of assignments and lessons in order to properly execute and construct;

e. Check for understanding: Exit tickets or independent work that is differentiated;

f. Mind maps, Graphic Organizers, Charts/Diagrams to organize thoughts and ideas;

g. Repetition of lesson and questions in order to practice and grasp material;

h. Differentiated instruction and work, which also helps decrease the amount of stress associated with assignments;

i. Teaching by strategies followed by content in order to use for assignments;

j. Calm breathing and deep breaths to reduce the panic/anxiety;

k. Providing a break in the beginning of the school day to transition smoothly;

l. Homeroom and Mid-Morning breaks to help ease the stress associated with back to back classes;

m. Houses and Activities Day to help with anxiety with core classes

n. Counseling session to help discuss strategies that will help reduce anxiety; extra sessions if needed

o. Positive reinforcement and communication to and her parents. This includes Weekly Updates on her successes from the prior week;

p. Schedule has a routine and classes have a routine

q. pushes into all 10th grade classes and works with all core teachers to implement ’s learning plan and individual services.

16. In addition to her regular classroom instruction, she receives 1:1 and small-group support (3-4 students per group) for regularly scheduled intensive instruction sessions. leads these intensive instruction sessions both during the school day and after school during mandatory tutorials.

17. ’s classmates are within 1.5 grade levels above or below grade level across all subjects. There are 12 students in her core classes and 15-20 in electives.

18.We offer related services for speech as well as counseling.

19. receives both speech and counseling services at . We recommended these based on a review of her IEP and evaluations.

21. participates in group speech sessions in the classroom with a speech therapist who pushes into classes to work with students. The speech therapist’s name is , and she is licensed by New York State.

22. issues six progress reports per year per

subject plus two additional for speech, counseling and special education.

Exhibits H, I, J, K1, and L.

23. Since school buildings were ordered to close because of the pandemic, has shifted to a fully synchronous remote learning curriculum. Students attend live, remote classes with the same students assigned to 's in-person classes.

24. has had near-perfect attendance in the remote learning sessions.

25. has benefited from her program and placement at . She has responded quite well to the small class size, individual attention, extensive 1:1 and small group instruction.

26. has made great progress. Her attendance has been good because her panic attacks have decreased. She is more involved and will ask for assistance instead of shutting down. She uses tools like organizers, summaries and outlines to become more independent. (P-S)

The Parent’s second witness is a clinical psychologist and a New York State-licensed and board-certified psychotherapist. (P-T) She stated as follows:

3. My practice focuses on children, teens and families.

8. I am familiar with the range of programs and services that are offered by the Committee on Special Education (“CSE”) of the New York City Department of Education (“DOE”) through my experience working with students enrolled in the New York City public school system.

12. I evaluated over December 2018 and January 2019, which included five hours of testing.

13. I have continued to work with using several different treatment modalities including cognitive-behavior, guided meditation, and relaxation therapies. readily participated in treatment, which primarily focused on her school-related anxiety.

16. Among the quantitative measures utilized during the evaluation were the following: Stanford-Binet Intelligence Scales, 5th Ed., Woodcock- Johnson Test for Cognitive Abilities, Woodcock-Johnson Tests of Achievement, 3rd Ed., and Tests of Variables of Attention.

20. met diagnostic criteria for ADD (inattentive presentation), Auditory Processing Disorder, Panic Disorder (episodic paroxysmal anxiety), Major Depressive Disorder (moderate), and Somatic

Symptoms Disorder.

21. Her ADD and Auditory Processing Disorder directly, negatively impacted her ability to learn in a traditional classroom setting. Her Panic,

Depressive and Somatic Symptoms Disorders occurred primarily in response to her attendance at Murrow High School and limited her ability to learn from and participate in the programming there.

23. Because of her severe Auditory Processing Disorder, absolutely requires visual instructional materials.

24. also began to show signs of Obsessive-

Compulsive Disorder and pronounced, anxiety-driven motor tics.

30. 's avoidance of stressors in school is a common response to severe anxiety. That is, avoidance is a common strategy that people use when anxious. In her case, the stressor was school, so when she started avoiding it by going to school nurse, for example, it completely impaired her functioning. She cannot succeed in school if she cannot participate in it.

31. I participated in the first part of ’s June 2019 IEP meeting. After 20 minutes, I had to start my next patient’s appointment.

32. While I was in the meeting, DOE staff did not seem interested in or willing to discuss the evaluation I conducted, Ex. D.

36. I strongly disagreed with the IEP team’s final recommendation, which maintained a full-size class for everything except math and added weekly counseling. ’s rapidly worsening anxiety, executive functioning limitations and significant auditory processing deficits were either not addressed or glossed over.

38. While school counseling will not do her any harm, it is not likely to meaningfully address the impact of her anxiety and depression at school.

As mentioned before, I have tried several evidence-based treatment modalities with , and her anxiety has proven regrettably durable. Even her trials with medication have failed to offer much relief.

Weekly school counseling sessions will likely have minimal, if any, impact especially while her other disabilities are left unaddressed or improperly addressed.

39. I have observed 's symptoms improve since she began attending Academy.

provides the structured, small setting I recommended and that she requires. She reports improvements in her ability to participate in school and engage with teachers and peers. She has also developed additional learning strategies to help mitigate her Auditory Processing Disorder.

40. While she still struggles with episodes of anxiety and depression, which is typical for these diagnoses, it is my clinical opinion that has been successful in helping her to re-engage with the curriculum and help her develop better coping strategies. (P-T)

The Parent’s third and final witness is the student’s mother. (P-U) She stated as follows:

2. For the 2018-2019 school year, attended

High School.

3. The 2018-2019 school year was horrible for and, as a parent, horrible to witness. Her grades declined very significantly, and she became very anxious and depressed.

8. The DOE never offered any kind of behavior testing for . I would have accepted it had they offered.

9. I even wrote an email to the assistant principal, Exhibit N, because I needed the DOE to help . Things were getting really bad.

14. Also, I found out after the IEP meeting that they changed

’s IEP classification from Speech and Language Impairment to

Other Health Impairment, but the change was never discussed at the IEP meeting. I don’t know what Other Health Impairment means.

16. The DOE also knew is a visual learner. Tr. 35 at 5-

7. I asked her teachers for written materials so that and I could go over her work at home. did not provide any textbooks, so there wasn’t much visual material to go over together. I asked tor some textbooks, but the school said they didn't have any. She really couldn't follow the material given by lecture alone. (P-U)

As noted above, the DOE declined to cross examine any of the Parent’s witnesses. (T-80-1) Accordingly, I find the testimony on behalf of the Parent credible and completely uncontroverted.

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)

The DOE submitted only (1) document in evidence, consisting of a written closing statement. (D-1) The testimony of the DOE’s two witnesses falls short of establishing that the relevant IEPs were duly constituted under law, and the evaluative materials relied upon, consisting of almost exclusively a psychoeducational evaluation that was not admitted in evidence, is insufficient to address all of the suspected and identified disabilities of the student, as diagnosed by the uncontroverted testimony of the clinical psychologist and a New York State-licensed and board-certified psychotherapist that testified on behalf of the Parent. (P-T) Finally, the teacher testifying for the DOE conceded that the student was not doing well under the 2018-2019 program that the DOE carried over into the student’s 2019-2020 school year. (Supra) Her testimony in this regard is as follows:

So really looking at the former IEP and following the management needs made in that IEP, I found that she didn't get worse, but there wasn't a big improvement either. (T-30-1)

For these reasons, I find that the DOE denied the student a FAPE for the 2018-2019 and 2019-2020 school years.

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

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

1988) and SRO No. 02-047) In Burr, exclusion from educational services for a substantial period of time was defined as “almost two years.” (See SRO No. 02-033 citing Burr “…after a severely disabled student's school was closed, prolonged delays in the administrative proceedings in obtaining a new placement resulted in a complete exclusion from any educational placement for the student for almost two years.” In the instant case, the student has been denied a FAPE for two consecutive school years. As such, I find that the DOE concession that is has failed to afford the student a FAPE constitutes a gross violation of IDEA.

The uncontroverted testimony of the clinical psychologist and the head of the private school on behalf of the Parent clearly demonstrates that the private school program addresses the student’s needs and that she is progressing under the program. (P-S & P-T)

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, the student revies 1:1 instruction an small group support, in a class with only (12)

students and receives related services of speech and counseling. (P-S) The student has near perfect attendance at the private school remote learning program due to COVID-19 and has progressed thereat. (Id.) The uncontroverted testamentary and documentary record clearly establishes that the private school was an appropriate placement for the student’s 2019-2020 school year. (Id.) 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 2018-2019 or 2019-2020 school years 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.

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 2018-2019 and 2019- 2020 school years. Accordingly, the hearing record does not support a finding that the district 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 should 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 testified that on April 17, 2019, she wrote an email to the assistant principal, because I needed the DOE to help the student because things were getting really bad.

(P-N & P-U) The DOE did not submit any evidence that it responded to the Parent’s request by evaluating the student and did not file a DPC in this case to defend its decision not to evaluate the student. Accordingly, I find that the Parent is entitled to reimbursement for the cost of the student’s independent evaluation. Additionally, 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 and reimbursement for the independent evaluation.

NOW therefore, it is hereby

ORDERED that the DOE has denied the student a FAPE for the 2018-2019 and 2019- 2020 school years, that this amounts to a gross violation of FAPE 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, as well as reimburse the Parent for the cost of the psychological evaluation conducted in January of 2019, at a cost that shall not exceed the reasonable and fair market rate cost for such an evaluation in New York City; 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 18, 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)

Footnotes

[8] is a one-hundred and fifty-seven-year-old college preparatory school located in Brooklyn, New York. is an independent, secular school. provides small class sizes and mainstreaming opportunities for all its students. currently has a student population of about one-hundred and eighty students ranging from Pre- Kindergarten through 12th grade. From Kindergarten through 12th grade, there is one class per grade, with an average of 8-10 students per class. Our program uses a small class inclusion model that combines special education and general education instruction. About 20% of ’s students have IEPs.

New York City Department of Education, Impartial Hearing Decision

BACKGROUND