New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACTS & DECISION

Case Number: 189957

NYS Identifier Number N/A Student’s Name: - To be Edited and Removed by the NYC-DOE

Date of Birth: [“Confidential”]

District:

Hearing Requested By: Parent

Dates(s) of Hearing: 06/05/20 & 08/07/20

Actual Record Close Date: 12/21/20

Hearing Officer: Edgar De Leon

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date

[CONFIDENTIAL] DOE Representative DOE 06/05/20 (T)

[CONFIDENTIAL] DOE Representative DOE 08/07/20 (T)

[CONFIDENTIAL] Assistant Principal DOE 06/05/20 (T) 08/07/20 (T)

[CONFIDENTIAL] Attorney PARENT 06/05/20 (T) 08/07/20 (T)

[CONFIDENTIAL] Mother PARENT 06/05/20 (T)

08/07/20 (T) [CONFIDENTIAL] Affidavit of PARENT 08/07/20 (A) [CONFIDENTIAL] Affidavit of PARENT 08/07/20 (A) [CONFIDENTIAL] Affidavit of PARENT 08/07/20 (A)

DOCUMENTATION ENTERED INTO RECORD

DOE EXHIBITS

1. ecnibit DATE DESCRIPTION or pages | 10/04/2019 | Due Process Complaint 6 pages DOE

2. | 06/13/2018 | Psychoeducational Evaluation 6 pages DOE

4. 3. | 08/07/2018 | OT/PT Parent Checklist 2 |08/07/2018 | OT Report 7 pages DOE

5. | 08/07/2018 | Speech/Language Evaluation 5 pages DOE

6. Dec. 2018 | 2018-19 Mid-Year Progress Report 16 pages DOE

7. | 12/04/2018 | Teacher Report ] 8 | 12/10/2018 | Consent for Additional Evaluations 3 pages DOE

9. CSE Letter ] 10 | 01/09/2019 | Classroom Observation ] 2019 DOE

11. | 01/24/2019 | CSE Meeting Notice 3 pages DOE

12. | 01/24/2019 | CSE Meeting Notice 3 pages DOE

14. | 02/13/2019 | CSE Meeting Minutes 5 pages DOE

16. 15 | 02/13/2019 | Recommended Services Page ] | 02/13/2019 | Individualized Education Program 21 pages DOE

17. | 04/24/2019 | Prior Written Notice 4 pages DOE

18. | 04/24/2019 | School Location Letter 2 pages DOE

19. =| 05/20/2019 | Prior Written Notice 4 pages DOE

20. | 05/20/2019 | School Location Letter 2 pages DOE

21. | 08/21/2019 | Ten Day Notice 2 pages DOE

22. | 07/31/2018 | 2017-18 Progress Report **“DOE exhibit “9” was not formally received in evidence*** 18 pages DOE

PARENT EXHIBITS

C. Exhibi Description Date Pages A WITHDRAWN (duplicate DOE 21) B WITHDRAWN (duplicate DOE 1) Parent's letter to CSE 3/5/201 1 page

D. Enrollment Contract 19-20 4 pages

E. Program Description Undate 13 pages

F. Progress Report - 1st Quarter 19-20 16 pages

G. Progress Report - 3rd Quarter 10-20 5 pages

H. Therapy Report - 3rd Quarter 19-20 13 pages

J. | Distance Learning Plan 19-20 4 Affidavit 6/4/202 11 pages

K. Parent Affidavit 6/4/202 5 pages

L. Progress Report - End of School Year 19-20 13 pages

M. Therapy Report - End of School Year 19-20 4 pages

N. Final Attendance 19-20 1 page

O. Affidavit P Closing Statement 09/01/2 |21 8/6/202 **“Parent’s exhibits “A”, “B”, “L”, “M”, “N” & “O” were not formally received in evidence*** 5 pages

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

On October 7, 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 an(_+) year old student attending a private school and the New York City Department of Education (“DOE”) - District: |, 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 5, 2020 and August 7, 2020. The Parent's written closing statement was received on September 1, 2020. (P-P) The DOE did not submit a written closing statement. 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) For the 2017-2018 and 2018-2019 school years, the student’ private school program was funded pursuant to an un-appealed Finding of Fact and Decision dated May 30, 2019 in Case No. . Accordingly, the Parent seeks pendency at the private school effective from the date of this hearing request and throughout the duration of this litigation; and (b) A finding that the student was denied a FAPE for the 2019-2020 school year; and (c) An order directing the DOE to make direct payments to the private school for tuition owed and reimbursement to the parent for any monies paid for the 2019-2020 school year; and (d) An order for independent neuropsychological, speech-language and occupational therapy evaluations with providers selected by the Parent at the providers normal and customary rate; and (e) An order providing the student with transportation to and from his school placement; and (f) Attorney’s fees and expenses; and (g) Any and all other relief that may be warranted based upon the evidence adduced at hearing and as deemed appropriate by the IHO.

THE DOE’S CASE

The DOE called (1) witnesses to testify on its behalf, who did not testify on direct examination via affidavit pursuant to 8 NYCRR 200.5{j][3][xii][f]. The Parent crossed examine the DOE’s witness. (T-60) The DOE also submitted (21) documents 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 (3) 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-K & P-O)

The DOE declined to cross examine the Parent's affiants. (T-68-9) 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. §

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; 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, "[uJltimately, 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][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)

In sum, substance and relevant part, the testamentary and documentary evidence in this case is as follows: The DOE argues that an IEP was developed on February 13, 2019, with a duly constituted IEP team that classified the student speech and language impaired, which is not in dispute, and recommended an ICT program plus related services and followed up on April 24, 2019, with a school location issued to the Parent for the student to attend a public school that would have been able to implement the IEP for the 2019-2020 school year. (T‘)

The Parent noted that an “Order on Pendency has been issued in this case. (T-8)

The student has attend the private school since kindergarten. (Id.) An ICT class with (30) students would be very inappropriate for the student. (T-9)

The DOE submitted a Psychoeducational Evaluation in evidence dated June 13, 2018. (D-2) The evaluation described the student as follows: The WISC-V was used to assess [STUDENT NAME]'s performance across five areas of cognitive ability . When interpreting his scores, it is important to view the results as a snapshot of his current intellectual functioning as measured by the WISC-V, his overall FSIQ score fell in the Low Average to the Average range when compared to other children his age (FSIQ = 89). He exhibited diverse visual spatial skills, but overall this was an area of strength relative to his overall ability (VSI = 100). When compared to his fluid reasoning (FRI = 82) performance, visual spatial skills emerged as a particular strength. [STUDENT NAME]'s verbal comprehension skills were similar to other children his age (VCI = 95), and were a relative strength compared to his performance on fluid reasoning (FRI = 82) tasks. [STUDENT NAME]'s fluid reasoning skills were slightly below other children his age (FRI

= 82) and were relatively weak compared to his performance on processing speed (PSI = 98) tasks. [STUDENT NAME]’s academic skills were measured with the achievement tests of Woodcock-Johnson Test of Achievement-Fourth Edition (WJ-IV).

Academic skills when compared to others at his grade level are within the low average range. [STUDENT NAME]'s performance is low average in reading, average in mathematics and low average math calculation skills. [STUDENT NAME]’s overall emotional and social development is age appropriate at this time. (D-2)

The DOE also submitted an “Occupational Therapy” report in evidence dated August 7, 2028. (D-4) That report states the following: [STUDENT NAME]isa _ -year-old boy who for the last year was enrolled in an ICT 3rd grade class at [PRIVATE SCHOOL NAME] School in . As per [STUDENT NAME]’s most recent IEP, he has a disability classification of Speech or Language Impairment and is mandated for counseling, speech and occupational therapy. This evaluation is part of a Triennial review.

The primary concerns noted by [STUDENT NAME]’s mother, teachers and occupational therapist include: Attention/Focus/Sensory Processing, Difficulty grasping information, Typing skills and Written expression.

It was evident during the evaluation that [STUDENT NAME] had some difficulty maintaining his attention. He required occasional cuing and repetition of instructions. Despite these attentional difficulties, [STUDENT NAME] worked independently and completed all tasks given to him to the best of his ability. Attentional and sensory processing difficulties are also best addressed through classroom-based strategies. Based on the OT report it appears that such strategies are already in place including sensory seating, weight lap pads, movement breaks, and a sensory diet are already in place. These strategies should be continued to maximize his attention and productivity in class. Further strategies are listed below.

Regarding [STUDENT NAME]'s ability to “grasp information” as well as his written expression. These are not primary OT domains and would be best addressed by his primary educational program. Finally regarding [STUDENT NAME]’s typing skills. He is currently able to type at a speed of 7-10 wom.

Typing speed is also impacted by reading level as noted by his ability to copy a sentence (handwritten), which was consistent with his reading level (2nd grade). As well typing and writing/written expression would only be addressed by occupational therapy if there were underlying concerns affecting these areas such as fine motor or visual motor difficulties. However, based on this evaluation, [STUDENT NAME] demonstrates adequate fine motor and visual motor skills necessary for school-based tasks.

Overall, it is recommended that [STUDENT NAME] graduate from occupational therapy services as he has achieved his goals and the remaining concerns would be best addressed by his primary educational program. (D-4)

The DOE also submitted a “Speech & Language” evaluation dated August 7, 2018 in evidence. (D-5) That evaluation states the following.

[STUDENT NAME] is a -year month-old English-speaking male who was evaluated for speech and language concerns. [STUDENT NAME] was attentive throughout testing. Based on clinical observation and the Clinical Evaluation of Language Fundamentals -—(CELF-5), [STUDENT NAME]’s score on the expressive language index and language memory index were judged to be within the average range of function. [STUDENT NAME]'s core language index and receptive language index were marginally below the average range of functioning.

[STUDENT NAME] showed strengths in his ability to recall sentences as they increased in length and complexity as well as follow directions of increased length and complexity.

[STUDENT NAME] displayed weaknesses in his ability to understand sentences that make comparisons, identify location or direction, specify time relationships, include serial order, or are expressed in passive voice. He also struggled to formulate complete, semantically and grammatically correct, spoken sentences of increased length and complexity, using given words and contextual constraints imposed by illustrations. [STUDENT NAME] showed weakness in his ability to understand relationships between words based on semantic class features, function, or place or time of occurrence.

According to [STUDENT NAME]’s performance on the formal evaluation and observations made by the clinician, speech and language therapy is warranted at this time to target his receptive and expressive language skills. (D-S)

The student was in the 3% grade and behind one year in reading. (D-4) His academic skills when compared to others at his grade level are within the low average range and his performance is low average in reading, average in mathematics and low average math calculation skills. (D-2) The student has struggled and achieved these scores while attending the private since kindergarten in what is described as a program with “Small class sizes, co- and team-teaching models, and low student-teacher ratios ensure that our teachers know our students in and out of the classroom.” (T-8 & P-E) Despite this, the DOE, the DOE’s IEP dated February 13, 2019 recommends placing the student in an “ICT” class that could have over (30) students with (2) teachers. (D-16)

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]) I do not find that the evaluative materials cited above support increasing the student’s class size so dramatically. This finding is fatal to the DOE’s assertion that it offered the student a FAPE for the 2019-2020 school year. As such, I find that the DOE denied the student a FAPE for the 2019-2020 school year.

I now turn to the quest of whether the private school is appropriate for the student.

Here, 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 him to benefit from instruction. (Gagliardo & Frank G., Supra) The standard for the Parent to show appropriateness is diminimus, below that of “preponderance of the evidence’ and perhaps even below the recognized legal standard of “substantial evidence.”

While the student's evaluations evidence that he continues to struggle, it cannot be said that he is not receiving an educational benefit at the private school. The completely uncontroverted testamentary and documentary evidence that at the private school meets that standard. (P-E, P-F, P-G, P-H, P-J, P-K & P-O) An accurate summary of the evidence in this regard was provided by the Parent while accurately citing the testamentary and documentary evidence received on her behalf: For the 2019-2020 school year, [STUDENT INITIALS] was placed in a fifthgrade classroom of nineteen students, two co-teachers ([NAME] (Special Ed) and [NAME] (General Ed)) and two associate teachers ([NAME] and [NAME]). (Ex. J). [NAME] has a Bachelors degree in Human Development and Family Studies and a Master degree in Special Education. (Ex. J). [NAME] has a Bachelors degree in English and Masters degree in Science in Teaching (adolescent ELA) with an advanced certification in special education. (Ex. J). [NAME] is also trained in Orton Gillingham for reading and the Hochman method for writing which she incorporates in her teaching. (Ex. J). [NAME] has a Bachelors degree in Human Development and Family

Studies and a Master degree in Special Education. (Ex. J) JNAME] has a Bachelors in Psychology. (Ex. J).

As a 5th grade student, [STUDENT INITIALS] receives instruction in reading, writing, math, social studies, science, Spanish, art, music, and physical education. (Ex. E., Ex. J, Ex. L). [NAME] reading program consists of whole group instruction where students read grade level literature and small group instruction based on based on readiness levels. (Ex. J). His teacher, [NAME], incorporates her Orton Gillingham training in reading to support [STUDENT INITIALS] decoding and encoding needs. (Ex. J). In addition, Learning Specialist [NAME] works with [STUDENT INITIALS] in a dyad during writing instruction to help him organize his essays, improve vocabulary and add detail to his writing. (Ex. J). [STUDENT INITIALS] began the school year on an end of 3rd grade reading level with challenges in his ability to summarize a story, recall key details, find themes and answer 16 inferential questions. (Ex. E. Ex. J, Ex. L). [STUDENT INITIALS] made progress in his ability to answer inferential questions, cite evidence when answering questions and ended the school year on an end of 4th grade level. (Ex. E, Ex. J, Ex. L, Ex. O). While he is on grade level in math with teacher support, he still requires significant 1:1 support in writing. (Ex. J, Ex. L, Ex. O). In this regard, assistive technology in the form of a computer with predictive text is necessary to help him get his ideas out. (Ex. J, Ex. O).

For all of the reason stated above, I find that the Parent’s completely uncontroverted testamentary and documentary evidence establishes that the private school was an appropriate placement for the student’ 2019-2020 school year.

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.

TRANSPORTATION SERVICES

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 IEP dated February 13, 2019 (D-16) 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 2020-2021 and 2021-2022 school years in accordance with the above.

INDEPENDENT EDUCATION EVALUATIONS

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, after the February 2019 IEP meeting, the Parent wrote to the DOE expressing her concerns with the evaluations and requested independent evaluations at public expense. (P-P citing P-C) On March 6, 2019, the Parent wrote:

I am the mother of [STUDENT NAME & D.O.B] and am writing this letter to request comprehensive independent educational evaluations for my son. [STUDENT NAME] has sensory processing disorder which impedes his ability to function in the class. | recently attended an IEP meeting and the evaluations relied on by the DOE do not provide enough information to make an_ informed decision regarding appropriate placement, programming or services for [STUDENT NAME]. [STUDENT NAME] needs a smaller class than recommended, occupational therapy and more intensive, integrated services. I am not in agreement with the DOE's evaluations and request that the DOE authorize an independent neuropsychological evaluation at public expense. | reached out to Dr. [NAME] and she is able to conduct the evaluation at her rate of $6000. In addition, I am also requesting an independent central auditory processing evaluation and an occupational with sensory integration evaluation at public expense. Please respond to this request within ten (10) calendar days to advise me as to whether the DOE will authorize this evaluation.

Thank you for your anticipated cooperation in this matter. (P-C)

The Parent did not file her DPC requesting payment for independent evaluations until October 4, 2019, thus affording the DOE more than sufficient time to comply with its statutory obligation as cited above. (DPC) The DOE neither funded the requested independent evaluations nor did it initiate an impartial hearing to establish that its evaluations were appropriate or that the evaluations requested by the parent do not meet DOE criteria. (P-P citing P-K) Accordingly, I find that the Parent has satisfied the notice requirement inherent in the statute and that she entitled to have the independent evaluations requested paid for by the DOE.

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 either reimburse the Parent and/or directly pay the cost of the student's receipt of the following independent educational evaluations, the cost of which shall not exceed the reasonable and fair market rate cost for such an evaluation, except for the Neuropsychological Evaluation, the cost of which shall not exceed $6,000: an independent central auditory processing evaluation and an occupational with sensory integration evaluation; and it is further

ORDERED that the DOE shall also conduct a re-evaluation of the student in all areas of his suspected disabilities, not identified above and 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: December 24, 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 Public-School 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

[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])