New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACTS & DECISION

Case Number: 189148

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

Date of Birth:

District:

Hearing Requested By: Parent

Dates(s) of Hearing: 01/08/20

Actual Record Close Date: 04/06/20

Hearing Officer: Edgar De Leon

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date DOE Representative DOE 01/08/20

Teacher DOE 01/08/20 Parent PARENT 01/08/20 Parent PARENT 01/08/20

On September 23, 2019, I was appointed the Impartial Hearing Officer (“IHO”) to conduct an impartial hearing pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 USC § 1415/(f)(3), Article 89 of the New York State Education Law, Part 200 of the Regulations of the New York State Commissioner of Education and Section 504 of the Rehabilitation Act of 1973, concerning a dispute between the Parents of a student attending a private school and the New York City - Department of Education (“DOE”) - , regarding the student's special education program. After a “resolution period” and/or adjournments having been granted at the request of the parties and with their consent, or for good cause shown, the “pendency” and “impartial hearing’ was held on January 8, 2020. A list of the witnesses who appeared at the hearing and the documents received in evidence is annexed to this decision.

BACKGROUND

This case was initiated as the result of a written Due Process Complaint (“DPC”)

made by the student’s Parents “pro se” and received at the Department of Education Impartial Hearing Office (“DOE-IHO”) on or about September 9, 2019. (P-A) The DPC is carried under New York City (“NYC”) Case No. 189148. A motion for an Order on Pendency was made by the Parents’ attorney(s) a hearing was held on the same on January 8, 2020. The Parents assert that the student was denied a “free and appropriate public education” (“FAPE”) for the 2019-2020 school year in that the student’s “Special Education Teacher Support Services” (“SETSS”) were reduced from (10) hours per week to (3) hours per week. (D-4) At the impartial hearing, the Parents seek the following relief: (a) | Ten(10) hours of SETSS services per week.

On January 13, 2020, the following “Statement of Agreement & Order Pendency” was issued in this case:

ORDERED AS PER THE PARTIES’ AGREEMENT and pursuant to the pendency provisions under the IDEA, the student shall immediately continue to receive the services provided under his “Individualized Education Program” (“IEP”) dated June 28, 2018 (IHO-l), the costs of which are to be paid by the DOE upon the agency’s receipt of reasonably satisfactory proof of said services having been rendered, retroactive to date the Parents filed their instant DPC; and it is further

ORDERED AS PER THE PARTIES’ AGREEMENT, that a copy of the student’s IEP dated June 28, 2018 shall accompany this order for reference; and it is further

ORDERED AS PER THE PARTIES’ AGREEMENT, that any prior written agreement that memorializing this Order, is incorporated in this Order, but shall also survive and shall not be merged into this Order; and it is further

ORDERED AS PER THE PARTIES’ AGREEMENT that the parties are hereby directed to comply with all legally enforceable terms and conditions of this “Statement of Agreement & Order - Pendency” and any said prior written agreement as if such terms and conditions were set forth entirely herein; and it is further

ORDERED AS PER THE PARTIES’ AGREEMENT that a copy of any prior written agreement between the parties memorializing this “Statement of Agreement & Order - Pendency”, shall accompany this “Statement of Agreement & Order - Pendency” for reference.

The DOE requested permission to submit a written closing statement, which was granted. (T-124-5) However, no written closing statement was ever received from the DOE. The Parents made their closing statement on the record. (T-130-5)

THE DOE’S CASE

The DOE argues that the “Committee on Special Education” (“CSE”) conducted a psychoeducational evaluation the previous year and the student received a standard score of “103” in reading comprehension, which placed him in the average range of functioning in critical academic areas. (T-25-6) Furthermore, when the student was administered the Wechsler Intelligence Scale on a previous evaluation, his Full-Scale index was “98”, also in the average range. (T-26) On his most recent report card, provided by the Parent, the student had a “95” average, his grade point average was reported to be “86.4”, which means that the student does not exhibit the criteria for an extended school year program. (ld.)

The DOE called (1) witness to testify on its behalf and submitted (4) documents into evidence. In sum, substance and relevant part, the testimony on behalf of the DOE is as follows:

The first and only witness for the DOE is a teacher at the CSE . (T-42)

He participated in the student’s IEP meeting that was conducted in June 2019. (T-43)

The school psychologist had administered the psychoeducational evaluation to the student. (T-44 & D-2) Prior to the meeting they went over all the critical information they had available and were impressed by the student's academic accomplishments and his extra-curricular activities. (T-45) All the information indicated that the student was receiving an excessive amount of special education intervention services. (T-46)

The witness testified that a member of the student’s private school attended the meeting. (T-47-8 & D-2) The major thrust of the conversation at the meeting was the recommendation to reduce the student’s SETSS services to (3) hours per week. (T-48)

The student was d at that time, which is time “to take some of the training wheels off’, and to see how the student would do. (T-49) However, they noted that the student was still exhibiting some weaknesses. (Id.) The student had been diagnosed with attention deficit hyperactivity disorder and they wanted to make sure that he had enough support services so that he could be successful in the classroom. (T-50)

He does not recall if the student’s SETSS provider was invited to the meeting. (Id.)

The witness also testified that soeech and language therapy assist the student with reading comprehension. (T-51) The student's goals were “maybe” discussed in general terms. (Id.) As and for testing accommodations, the student was given double time and having directions read. (Id.)

On cross examination, the witness agreed that the student was given testing on May 18, 2018, consisting of a psychoeducational evaluation and a Level 1 vocational interview. (T-54) He also agreed that there was an IESP for the student’s 2018-2019 and a second IESP for 2019-2020 school, which the current academic year. (T-55-6) In June of 2019, the student was recommended for (10) hours of SETSS services. (T-56)

No further psychoeducational evaluation or vocational interviews of the student had been conducted since that May 18, 2018. (Id.) Then in June of 2019, a different conclusion was reached, while still using the same testing information. (T-57) He agrees that the same testing led to two significantly different conclusions, one toward recommending (10) SETSS hours for the student, and the other recommending (3)

SETSS hours of services. (Id.)

The witness also acknowledged that it does not surprise him that since student has had reduced SETSS hours and specifically none over the summer of 2019, with only (3) hours since the beginning of the academic year, for the first half of the academic year, the student is performing poorly in three of his classes. (T-65 & P-A)

He also agreed that the diminution in SETSS services played a role in the student’s performance. (T-71) He did not speak to the student’s psychiatrist before making the decision to reduce his SETSS services to (3) hours from (10) hours. (T-75-6) He also did not speak to the student's SETSS providers. (Id.)

There was no substantive testimony developed during the witness’ re-direct examination. (T-79-83) There was no substantive testimony developed during the witness’ re-cross examination. (T-83-5)

THE PARENT’S CASE

The Parents argues that the CSE team did not consult with the student's providers in making its recommendations. (T-28)

The Parent called (1) witness to testify on her behalf and submitted (3) documents into evidence. In sum, substance and relevant part, the testimony on behalf of the Parent is as follows: The Parents’ only witness is the student’s father. (T-87) He testified that he has participated in every IEP review for the student since 2007, including the meetings in 2018 and 2019. (T-88) In 2018, based upon the documentation provided by the student's home SETSS provider for approximately (4) to (5) years, the student was granted (10) hours of SETSS per week, and also granted summer SETSS to avoid regression. (T-88-9) With the support, he student made second honors, first honors and was granted admission into the “STEM program.” (T-89) Once the student lost access to the “resource room”, he had an increased reliance on his SETSS services. (T89-90)

The witness further testified that once the student was no longer eligible for the resource room, the private school provided a SETSS tutor almost every day. (T-92)

Then the student would also receive SETSS services at home. (T-92-3) He requested that before the DOE made a final determination, the IEP team reach to the student’s SETSS providers, but it is his understanding that they did not do so. (T-94) However, the private school SETSS provider did submit a letter addressing his concerns and the need for the student to continue with the SETSS services. (Id.) He asked the DOE to speak to the SETSS providers prior to June 25". (T-95) It was re-sent by email in December. (T-96 & P-B) The student’s at home SETSS provider also provided a letter for the DOE regarding the student’s need for SETSS services. (T-99-100 & P-C)

The witness testified that along with the student's SETSS providers, his treating physician also submitted a letter agreeing with the SETSS providers that a reduction in SETSS services will cause "irreparable harm to the student's academic progress." (T101)

On cross examination, the witness testified that the student scored in the “70's” in English, which is not a soft spot for him. (T-112) Asa , the student is taking precalculus and is doing okay. (T-113) The student scored over 1300 on his S.A.T. score.

(T-114)

On re-direct examination, the witness testified that the “STEM Aerospace” program is engineering that consist of science, technology and Math, and in which the student scored in the 90’s. (T-120) Now in his next class in the progression of the STEM curriculum, the student has scored 32. (T-121) In physics, the student’s scores have decreased from 92-90, 87-86 to 71-70. (T-122) There was no substantive testimony developed during the witness’ re-cross examination. (T-122-4)

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. §

141 5[fI[S][EIlii]; 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, 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. 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 "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [dlistrict's placement is appropriate should be considered in determining the appropriateness of the parents’ placement...." (See Gagliardo, 489 F.3d at 112; [STUDENT NAME] 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 [STUDENT NAME] G., 459 F.3d at 364-65) When determining whether the parents’ unilateral placement is appropriate, "[uJltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits." (See [STUDENT NAME] 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 [STUDENT NAME] 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 [STUDENT NAME]

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[l] 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)

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]) The student's Psychoeducational Evaluation dated May 18, 2018 does not recommend a reduction in the student's SETSS services. (D-2) During the student’s vocational assessment on May 18, 2018, the student stated that he struggles with writing. (D-3) Additionally, the student's IESP dated June 25, 2019, submitted in evidence by the DOE, recognizes that the student still needs a significant amount of support consisting of graphic organizers, repetition and review, sentence starters and checklists for writing, encouragement and praise, scaffolding, text book use in the classroom, refocusing and modeling. (D-1) Finally, the testamentary record as cited above, indicates that the reduction in SETSS services has negatively impacted the student’s academic scoring. (P-A) The record indicates that there really is no substantive evaluative material warranting the reduction in the student’s SETSS services.

Accordingly, I find that to do so was a denial of FAPE.

I now turn to the question of whether the relief sought by the Parents is appropriate.

Here, the Parents need only demonstrate that the relief sought provides educational instruction specially designed to meet the unique needs of the student, supported by such services aS are necessary to permit him to benefit from instruction. (See Gagliardo & [STUDENT NAME] G., supra) The uncontroverted email submitted by the Parents from the student’s private school SETSS provider states as follows:

I am writing to you in regards to [STUDENT NAME] and his reduction of SETSS hours. I have been working with [STUDENT NAME] for the last two years and this year his hours were reduced severely. We were working together for at least an hour a day and I believe that this was really helping [STUDENT NAME] in the classroom with both his studies and also organization of all his work. Reducing his hours to only three hours a week is a major concern for me as his SETSS provider. I believe that [STUDENT NAME] should have at least one hour a day to work with a provider. Only giving him three hours week is a disservice to him and what his needs are.

There is a very strong possibility that without the one hour a day [STUDENT NAME] can be setback with his work and all the progress that has been made in the last few years working together. He is the type of student who constantly needs academic support and without this support | worry his grades will regress and again all progress that was made in the last few years would be lost. Thank you for your reconsideration in this matter and if there are any questions or concerns please feel free to contact me immediately. (PB)

The Parents also submitted in evidence an email from the student’s at home SETSS provider. (P-C) The email was uncontroverted by the DOE and is dated December 11, 2019. It states as follows:

I have been working with [STUDENT NAME] for 6 years as his SETSS provider. [STUDENT NAME] has been offered 10 hours of SETSS a week over this time. [STUDENT NAME] was offered this amount of time because it was deemed necessary and he needed it. [STUDENT NAME] is now a and his hours have been cut from 10 to 3. [STUDENT NAME] is doing well in school, but it is because of his services. His performance will determine which colleges he gets into and eventually his future. It does not make sense to cut his services by 70% the last year he will have them. Although [STUDENT NAME] is a bright student, he easily regresses and needs to be constantly prompted and refocused. Please consider giving [STUDENT NAME] back his hours so he can finish out his high school career the right and fair way. (Id.)

The testamentary record reveals that neither of the SETSS providers were participants at the student’s IEP meeting and that their concerns about the student regressing if his services were reduced are born out by his academic performance. (P-A & supra) I find that the relief sought by the Parents is appropriate and provides the student with an educational benefit.

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 on behalf of the Parents.

NOW therefore, it is hereby

ORDERED that upon 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 receipt of (10)

hours of SETSS services per week, for the entirety of the student's 2019-2020 school year, including a 1:1 make up of any hours the student has not been provided, for the entirety of the student's 2019-2020 school year; and it is further

ORDERED that the DOE shall either conduct or arrange to have conducted evaluations of the student in all areas of his suspected disabilities, 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; and it is further

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

DATED: April 13, 2020

New York, New York Edgar Ce Leon ~GSAO

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

01. Number/Letter Title Dated For #of Pages IESP 06/25/19 DOE 09 pages DOE

02. Psychoeducational Evaluation 05/18/18 DOE 03 Vocational Interview 05/18/18 DOE 01 04 pages DOE

04 DPC 09/09/19 DOE 04

A Daily On-Line Report 01/06/20 PARENT 01

B E-Mail with Letter 12/17/19 PARENT 02

C E-Mail from 12/11/19 PARENT 01

| Pendency Motion - Parent 10/08/19 IHO 02

Footnotes

[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., found that Congress intended retroactive reimbursement to parents by school officials (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 as an available remedy in a proper case under the IDEA. (See Burlington, 471 U.S. at 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])