New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACTS & DECISION

Case Number: 190122

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

Date of Birth:

District:

Hearing Requested By: Parent

Dates(s) of Hearing: 04/08/20, 04/28/20 & 05//08/20

Actual Record Close Date: 09/14/20

Hearing Officer: Edgar De Leon

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date Attorney DOE 04/08/20 (T) 04/28/20 (T) 05/28/20 (T)

School Psychologist DOE 04/08/20 (T)

Speech Pathologist DOE 04/28/20 (T) Attorney PARENT 04/08/20 (T) 04/28/20 (T) 05/28/20 (T)

Father PARENT 04/08/20 (T) 04/28/20 (T) 05/28/20 (T)

Mother PARENT 04/08/20 (T) 04/28/20 (T) 05/28/20 (T) Neuropsychologist PARENT 05/28/20 (T) Assistant Principal PARENT 05/28/20 (T)

DOCUMENTATION ENTERED INTO RECORD

Number/Letter Title Dated For #of Pages

N/A N/A N/A DOE N/A DOE EXHIBITS

EXHIBIT | DATE NAME PAGES

l. Ineligibility Letter 10/16/2019 2 pages

2. Present Levels of Performance Undated 6 pages DOE

3. Prior Written Notice 10/23/2019 3 pages DOE

4. Social History Package 2/13/2019 8 pages DOE

5. Classroom Observation 3/14/2019 1 page DOE

6. Speech Language Evaluation 4/5/2019 6 pages DOE

7. Neuropsychological Evaluation Undated 17 pages DOE

8. Counseling update l 10/2019 DOE

9. - Speech/Language Elementary School Screening Undated 2 pages DOE

10. - Occupational Therapy Evaluation 6/2019 3 pages DOE

11. IEP Meeting Attendance Page l 10/16/2019 DOE

12. IEP Meeting Minutes 10/16/2019 3 pages DOE

14. 13 12/20/2018 Initial Referral l Notice of Social History 2/6/2019 2 pages DOE

15. Consent for Initial Evaluation l 2/13/2019 DOE

16. Authorization for Release of Medical Records 2/13/2019 1 page DOE

17. Consent for Use of Electronic Mail 2/13/2019 1 page DOE

18. Request for Medical Accommodations 2/13/2019 2 pages DOE

19. Request for Release of Records 2/13/2019 2 pages DOE

20. Notice of Meeting 10/4/2019 3 pages DOE

21. Student’s 2017-2018 report card Undated 2 pages DOE

22. Student’s 2018-2019 report card Undated 2 pages DOE

23. Closing Statement 06/09/20 19 pages DOE

PARENT EXHIBITS

E. . Due Process Complaint 10/11/19 3. Ten-Day Notice 8/21/19 2. Parent Email 12/20/18 I. Copy of Parent Letter to NYC DOE TA/19 1 Enrollment Contract 2/1/19

m. Student Schedule Mid-Year Report Card cm 2019-2020 Affidavit — 4/24/20 2019-2020 11 pages

J. — Affidavit — 4/30/20 11 Closing Statement 06/09/20 24 pages

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

On October 18, 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 April 8, 2020, April 28, 2020 and May 8, 2020. The parties opted to submit written closing statements which were received on June 9, 2020. (D-23 & P-J) A list of the witnesses who appeared and the documents taken into evidence is annexed to this decision.

BACKGROUND

In this case, the Parent alleges that the student was denied a “free and appropriate public education” (“FAPE”) for the 2019-2020 school year. At the impartial hearing, the Parent seeks the following relief: (a) Tuition reimbursement and/or funding of the student’s tuition and costs associated with his placement at the private school for the 2019-2020 school year; and (b) — Any further relief as the IHO deems just and proper.

THE DOE’S CASE

The DOE called (2) witnesses to testify on its behalf and submitted (23) documents into evidence. In sum, substance and relevant part, the testimony and documentary evidence on behalf of the DOE is as follows:

In a thoroughly and accurately cited transcript, the DOE argues that the student is not an individual with autism, is not deaf, does not have any hearing impairment or visual impairments, does not have an emotional disturbance, does not have an intellectual disability, does not have an orthopedic impairment, does not have any health impairments, does not have a traumatic brain injury, all of which establishes that the student does not have a learning disability or a speech or language impairment. (D-^[23] citing T-144 & 200-1)

The student’s Neuropsychological Evaluation dated September 2018 determined that the student's cognitive abilities were “well above average” with some inconsistencies, with a full-scale IQ in the ninety-fifth percentile and a General Ability Index in the ninety-eighth percentile, as well as extremely high verbal comprehension and reasoning scores, with nonverbal abilities in the ninety-ninth and ninety-eighth percentiles, visual spatial memory scores in the high average range, working memory in the average range, high order attention within the normal range, average processing speed, reading scores in the average range, and average reading and math scores. (DThe student’s IEP meeting on October 16, 2019 included the Parent, the School Psychologist, , the Special Education Teacher, , the General Education Teacher, , the Occupational Therapist, from the Unilateral Placement, the teacher from the Unilateral Placement, the social worker from the Unilateral Placement, and the speech pathologist from the Unilateral Placement. (D-23 citing D-11)

The IEP team reviewed the student Social History dated March 20, 2019, his

Psychoeducational Evaluation dated February 15, 2019, his Classroom Observations dated March 20, 2019, his Speech and Language dated April 5, 2019, his

Neuropsychological Evaluation dated October 1, 2018 and his school progress reports dated October 16, 2019. (D-3) The Parent also provided the IEP team with a copy of the student's public-school report cards. (D-23 citing T-39-40) After discussing the student's strengths and weaknesses, the IEP team made the following determination:

At the IEP meeting held on 10/16/2019 to which you were invited, the assessments and materials identified below were reviewed and discussed and it was determined that your child does not meet the eligibility criteria for an educational disability as defined in Part 200 of the regulations of the New York State Commissioner of Education. (D-3)

The DOE further asserts that the Parent admitted that they are not challenging the CSE’s determination that the student is not eligible for special education, but instead has limited his claim to whether the DOE timely evaluated the student. (D-23 citing T-31-2) In the Parent’s objection to DOE Exhibit “1”,the relevant colloquy is as follows:

MR. : Objection. This document and their questions are irrelevant to the inquiry here which is whether this -- the Department of Education adhered to its duties in evaluating the student. The impartial hearing request clearly makes an argument only regarding the timeline.

Anything developed after the start of the school year, the Parents maintain, should not be -- come in with the District's case-in-chief. (Id.)

DOE’s Exhibit “1” was ultimately accepted in evidence over the Parent’s objection. (T-33) Based on the aforementioned, the DOE argues that the Parent cannot argue that the student is eligible for special education services or challenge the CSE’s determination, as any other claims not raised in the DPC should not be considered. (D-23)

Citing 8 N.Y.C.R.R. § 200.1 (zz)(6), the DOE defines a “learning disability” under the law as follows:

Learning disability means a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, which manifests itself in an imperfect ability to listen, think, speak, read, write, spell, or to do mathematical calculations, as determined in accordance with section 200.4(j) of this Part. The term includes such conditions as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia and developmental aphasia. The term does not include learning problems that are primarily the result of visual, hearing or motor disabilities, of an intellectual disability, of emotional disturbance, or of environmental, cultural or economic disadvantage. (D-23)

The DOE cites to the testimony of its school psychologist in determining that the student does not have a “learning disability” as defined under law. (Id.) The relevant testimony is as follows:

MS. : Okay. So on the -- the assessments that were administered to [STUDENT NAME], in terms of his intelligence test, his scores just paint the picture of a student who has very well-developed intellectual functioning. He has’ very’ well-developed verbal comprehension skills. Very well developed visual spatial skills, problem solving skills. His memory skills are strong, average, and intact, as well as cognitive skills are strong, average, and intact. And just overall, his overall scores speak to a student with a very high overall intelligence. (T-50)

MS. : So the criteria is -- | mean, | just know them off the top of my head -- a disorder in one of the basic psychological processes that manifests itself in an imperfect ability to do -- to you know, read, write, do math, do calculation. Okay. There was no evidence of a disorder in a basic psychological process, as you can see from the psychological testing that was done -- the IQ testing. There was no disorder. All of his scores are average to superior, in regard to his psychological mechanisms being intact. So he did not meet the eligibility criteria. (T-55)

MS. : There were no concerns raised. I just know that the documents that were gone over, like the progress report, spoke to a student who was largely on grade level in academic areas. (T-56)

In assessing the student’s “Present Levels of Performance’, the DOE school psychologist thoroughly reviews the results of the student’s test and assessments and concludes: [STUDENT NAME] obtained an overall score within the Very High range on a measure of intellectual functioning. [STUDENT NAME] obtained scores ranging from below average to well above average in the areas of reading, writing, and math on a standardized measure of academic achievement. In the classroom, [STUDENT NAME] is functioning at or above grade level in reading, writing, and math according to classroom teacher estimates. On a formal speech and language evaluation, [STUDENT NAME] was found to have Above Average overall language skills. [STUDENT NAME] is able to participate in the general education curriculum without special education supports. (D-2)

However, it is important to note that the same document recommends that the student requires a litany of “management needs”, to wit: positive reinforcement and praise, graphic organizers and outlines, anchor charts, repetition of key concepts, redirection in a discrete manner, multi-sensory approach to instruction, masks and markers while reading, encouragement to add more details to written responses, chunking of information, reminders to slow down when reading modeling, repeating directions back to the teacher and breaking directions down into manageable steps.

(Id.)

The DOE further takes note of the Parent’s testimony, indicating that while the student was enrolled at the public school for prekindergarten, kindergarten, and first grade, he advanced after successfully completing each grade, that his promotion was never in doubt and that public school did not recommend holding the student back from advancing grades. (D-23 citing T-205-6) The evidence received from the student's private school supports this testimony, noting that the student was achieving appropriately for his age, that he is on Level “M” of the Fountas and Pinnell program and that his math level is “2A”, evidencing that he is age and grade appropriate level for these areas. (D-23 citing T-181, 185 & P-G)

The DOE argues that no weight should be given to the testimony of the Parent

Neuropsychologist, who admitted that according to the DSM-5, a diagnosis of learning disabilities must be based on a clinical review of an individual's history, teacher reports and academic records, but was unable to specifically state what academic records or teacher reports he reviewed prior to evaluation and diagnosing the student with a learning disability, and assumed that he reviewed the student’s kindergarten report card, while being unable to recall if he spoke with the student’s kindergarten teacher, first grade teacher, or the student’s speech therapist. (D-23 citing T-144-6 & 159) In this regard, the relevant colloquy is as follows: DR. : At that point, whatever records were available which probably would have just been report cards. But again, | don't have my file or recollection of two years ago.

MR. : So you don't know what you reviewed?

DR. : | always ask for educational records, so the only ones that would have existed at that point would be kindergarten report card. (T145)

Additionally, the Neuropsychologist conceded that according to the DSM-5, a diagnosis of a learning disability should be based upon a student’s response to interventions, which the Parent and the Neuropsychologist concede that the student did not receive. (D-23 citing T-159-60) Here, the testimony is as follows: MR. : In a way a DSM-5 defines and classifies learning disabilities different than how they were in the DSM-4, right?

DR. : Correct.

MR. : Okay. And according to the DSM-5, a diagnosis of learning disabilities is made based upon a clinical review of the individual's histories, teacher reports, and academic records, right?

DR. : Correct.

MR. : And according to the DSM-5, a diagnosis of learning disability should be based on the student's response to interventions, right?

DR. : Correct.

MR. : And do you know if this student received any interventions prior to your diagnosis?

DR. : Other than informally by the parents, no. (T-159-60)

What’s more the Neuropsychologist testified that according to the DSM-5, in order for a student to be diagnosed with a learning disability, the individuals current academic skills must be well below the average range of scores in culturally and linguistically appropriate tests of reading, writing, or mathematics, but the testing and assessments evidence that the student's academic skills are not well below the average range, in reading, writing, or mathematics. (D-23 citing T-160) To further discredit the Neuropsychologist testimony, the DOE argues: Additionally, throughout Dr. 's report and testimony, he mentioned that at the time of the testing, the Student was performing below expectations for a student that had started first grade. It must be noted that Dr. began his evaluation of the Student in September of 2018 and conclude the evaluation on October 1, 2018. Tr. p. 146 line 12 p 147 line 2. During this time, the Student had only been in first grade for a few weeks. Therefore, the fact that the Student was not performing as Dr. believed the Student should have been performing should not be given any weight. (D-23)

The DOE notes that a review of the student’s report card shows that the only concern of his teachers is the student’s ability to complete homework assignments because he tends to read too fast. (D-23 citing P-G) In relevant part, the private school report card states: [STUDENT NAME] demonstrates strength in his ability to identify important information versus interesting information while reading and/or listening to a nonfiction text. [STUDENT NAME] also shows strength in his ability to apply his own background knowledge in order to answer inferential questions regarding a text on his instructional level. While we have seen progress with [STUDENT NAME]’s pacing, he continues to work on slowing down the pace at which he reads to ensure that he is able to read with little to no errors. [STUDENT NAME] is a passionate reader who is eager to read and participate in discussions. Next semester, [STUDENT NAME] will continue to work on summarizing and visualizing a text.

This semester, [STUDENT NAME] has worked very hard to create a personal narrative about a day in science class. While working on his personal narrative, [STUDENT NAME] showed great strength in his ability to add important and interesting detail to his writing. He also showed strength in his ability to independently add dialogue to his writing. [STUDENT NAME] shows strength in his ability to transfer his knowledge of learned phonics patterns to his written work. While working on Weekend Updates, [STUDENT NAME] benefits from the use of graphic organizers. Specifically, he benefits from graphic organizers to help him generate and recall activities he did over the weekend. While [STUDENT NAME]’s confidence in writing has grown, he benefits from teacher praise and encouragement in order to continue working on a writing task. Next semester, [STUDENT NAME] will continue to reread his work to ensure that he has used the correct grammar when writing. (/t is noted that the DOE “Present Levels of Performance” recommends graphic organizers as a management tool. - D-2)

[STUDENT NAME] shows strength in his ability to fluently recall basic addition facts (8 + 5). Specifically, he is able to use mental math rather than using his fingers or a 100s chart to solve. [STUDENT NAME] also shows strength in his ability to use critical thinking skills in order to problem solve. Specifically, when given a problem before learning the skill, he tries multiple different strategies to solve. At times, [STUDENT NAME] benefits from teacher reminders to double check his work, to ensure that he has not made careless mistakes. Next semester, we encourage [STUDENT NAME] to be a more active participant, as he has many insightful ideas to share with the class.

[STUDENT NAME] shows strength in his ability to use his own background knowledge in order to make connections to the social studies content being discussed. Specifically, our unit on urban, suburban, and rural communities. [STUDENT NAME] was able to greatly contribute to discussions regarding rural communities, due to his own experiences in a rural community. Additionally, he shows strength in his ability to recall information and contribute to classroom discussions. [STUDENT NAME] benefits from learning through various different modes of presentation. For example, educational videos, repetition of information, hands-on activities, etc. [STUDENT NAME] is always an active participant during class and is always eager to share his experiences with his peers. Next semester, [STUDENT NAME] will continue to study New York City and its characteristics. (These recommendations also cited in the DOE’s recommend management needs. - D-2)

[STUDENT NAME] is a kind and affable youngster who made a smooth transition to his new school placement. He has formed new peer connections with the students in his class and enjoys socializing with others. He engages with his classmates in a playful manner and relates to his peers over shared interests. He is consistently helpful and respectful to his peers and is actively developing appropriate friendships. [STUDENT NAME] has acclimated to his new classroom and greatly benefits from the structure of his current environment. He is consistently a positive member of his classroom community. He is well-behaved and makes an effort to follow all classroom procedures. During the group sessions, [STUDENT NAME] is an active participant in the activities and discussions. His contributions reflect thoughtfulness, and he is able to problem-solve with his peers in the structured group setting. In the larger classroom environment, [STUDENT NAME] can become visibly flustered or nervous when he receives adult redirection at times and needs adult reassurance that he is doing the right thing. Similarly, when he receives adult feedback or makes a mistake, his confidence level is affected. [STUDENT NAME] consistently works hard to follow all rules and meet classroom expectations. He is eager to please and is motivated by adult praise and positive reinforcement. (These recommendations also included in the DOE recommended management needs - D-2) (P-G)

Even though some of the recommendations made in the student private school report card are adopted in the DOE’s “Present Levels of Performance” document, (D-2), the DOE argues that those recommendations do not indicate that the student needs to be designated as requiring special education services. The DOE argues as follows:

Graphic organizes are beneficial in all writing, including legal writing. The fact that a student, may benefit from the use of graphic organizer does not mean the student needs special education. The fact a teacher may need to remind a student to take his or her time completing assignments does not prove that the student needs special education services. The fact that a student benefits from praise and encouragement does not prove the student needs special education service. Most people no matter their age or functioning benefit from praise and encouragement. The fact that a student may benefit from being reminded to double check their work does not prove that the student needs special education services. (D-23)

Regarding the designation of “speech and language impairment” for the student, the DOE 8 N.Y.C.R.R. § 200.1 (zz)(11) as defining a speech and language impairment as follows: “Speech or language impairment means a communication disorder, such as stuttering, impaired articulation, a language impairment or a voice impairment, that adversely affects a student's educational performance.” (D-23) The DOE notes that the testimony of both the speech teacher and the Neuropsychologist does not support such a Classification for the student. The speech teacher testified that the student scored within the average range in during all test conducted during the speech evaluation and was easily understood. (D-23 citing T-92-3, 96 & D-6) The student was able to actively participate during the classroom observation, although some errors in the student's articulation were noted, which are common for a child his age and the errors can persist until age (8). (D-23 citing T-93-4, 98-9 & D-6) Additionally, the Neuropsychologist testified that he was able to understand the student’s speech. (D-23 citing T-147 & D-7)

Specifically, the testimony was as follows:

MR. : And did you have any difficulty understanding him when you spoke to him?

DR. > No, I did not.

MR. : And as indicated in your report, he was always easily understood, correct?

DR. : Correct. (T-147)

The DOE speculates that the private school offers the speech/language services to the student, as it does to almost all of its students, to justify public tuition funding and concludes that the student's scores during the speech evaluation, his ability to fully participate in class and his academic performance at the public school prove that he does not have a speech or language impairment that adversely affects his educational performance. (D-23)

Regarding and procedural deficiencies in the DOE’s conduct of the student’s evaluations, the DOE cites SRO No. 20-027 as follows: “when a CSE has appropriately determined that a student was not eligible for special education services under the IDEA, and the student's parents were able to participate in that determination, any alleged procedural violation by the district does not result in a denial of FAPE to the student.” (D-23)

THE PARENT’S CASE

The Parents called (2) witnesses to testify on their behalf via direct testimony by affidavit pursuant to 8 NYCRR 200.5j{j][3][xii][f], (P-H & P-l) and submitted (10) documents into evidence. In sum, substance and relevant part, the testimony and documentary on behalf of the Parent is as follows: The Parent also submitted a written closing statement that accurately cites to the record. Therein, the Parent asserts that the DOE failed to timely evaluate the student and improperly refused to classify him as a student with a disability, thus denying him a FAPE. (P-J)

The Parent argues that the student performs well below expectations based on his intelligence in many of the academic tasks that he performs, with effortful slow reading with many errors, struggles with his fluency and comprehension and meets criteria for learning disabilities in the domains of reading, writing, and math as his performance is significantly below expectations based on his cognitive abilities; which are compounded by a variable cognitive profile and inconsistent executive functioning skills. (P-J citing T-138-9, 145 & D-7) The Neuropsychologist that testified on behalf of the Parent said he made his recommendation because he felt that the student was exhibiting significant learning disabilities and difficulties, and needed an IEP so that he could start getting remediation and attention. (T-138) He testified: “I felt that he needed

SETSS, or Special Education Teacher Support Services, to more individually address his -- his learning needs.” (T-139)

The Neuropsychological Evaluation prepared on behalf of the student notes that the student has no formal history of special education placements and related services but was referred for the current evaluation to determine whether he presents with any underlying learning difficulties. (D-7) Cognitively, the student performed well above average overall albeit with a profile that was very inconsistent.. (Id.) The student's academic skills ranged from below average to well above average in the areas of reading, writing, and math, but despite this variability, the student often performed well below expectations based on his intelligence across the majority of academic tasks.

(Id.) The student meets criteria for a diagnosis of Specific Learning Disorder with impairment in reading (Dyslexia) as defined within the Diagnostic and Statistical Manual of Mental Disorders - Fifth Edition. (ld.) The discrepancy between the student's intelligence and academic: performance provides the basis for a diagnosis of Specific Learning Disorder with .impairment in mathematics, often referred to as Dyscalculia and meets the criteria for learning disabilities in the domains of reading, writing, and math because he performed significantly below expectations based on his cognitive abilities.

(Id.) The recommendations include, but are not limited to an IEP, a small, structured, and supportive classroom environment with more than one teacher, SETSS services and extended time and related accommodations. (ld.)

The Parent provides a summary of the chronology of events in this case, indicating the Parent’s cooperation with the DOE and the information made available to the IEP team:

The chronology of events in this case is noteworthy. The record establishes that [STUDENT INITIALS]’s parents requested an evaluation from [STUDENT INITIALS]’s school — — on December 14, 2018 (Ex. 13, I). The parents followed up on December 20, 2018 and provided the district with consent to evaluate [STUDENT INITIALS] (Ex. C, I). A Social History interview was held on February 13, 2019; at which time the district requested the parents’ consent for evaluation process (Ex. 14, 15, 16, 17, 18, 19). The parents signed a consent form provided by the district on February 13, 2019 (Ex. 17). The parents also countersigned an authorization to release medical records, consent for use of email, a request for medical accommodations, and a request for a release of records (Ex. 15, 16, 17, 18, 19). The parents provided the school district with a copy of an independent Neuropsychological Evaluation on February 17, 2019 (Ex. 1). In the morning of February 27, 2019, [STUDENT

INITIALS]’s mother emailed the Assistant Principal of and detailed the struggles [STUDENT INITIALS] had going to school2 (Ex. 1). In the afternoon of February 27, 2019, [STUDENT INITIALS]’s mother met with the Assistant Principal of and discussed [STUDENT INITIALS]’s

“worsening emotions around school, low academic self-esteem, and his declining progress in the classroom” (Ex. |). (P-J)

The Parent argues that pursuant to (20 U.S.C. § 1414 (a)(1)(C)(i)(1), 34 C.F.R.

§300.301 (c)(1)(i), 8 NYCRR §200.4 (d) and 8 NYCRR §200.4 [e]), the DOE denied the student a FAPE because it failed to timely evaluate the student or convene an IEP meeting. (P-J) The Parent notes that he hand-delivered a formal request to evaluate the student to the DOE on December 14, 2018, that the agency acknowledged receipt on December ^[20], 2018, that the Parent again contacted the DOE again on December 20, 2018 and provided a consent to evaluate and executed the consent forms on February 13, 2019, but that the DOE did not convene a meeting until October 16, 2019.

(P-J citing D-13, D-15 & P-C)

Extending his argument, the Parent cites SRO No.: 18-085, where the SRO found that, where the student's eligibility for special education had not yet been reviewed by the CSE but the district delayed the process of making that determination, the Parents had made a reasonable choice to place the student at a private school for the full school year and that there was broad authority to fashion equitable relief allows for reimbursement of that tuition. (P-J) In further support of his case, the Parent cites

R.E. v. New York City Department of Education (694 F.3d 167), and argues that the Second Circuit has continued to emphasize the importance of limiting a FAPE analysis to include a review only of the information “reasonably known to the parties at the time of the [parents’] placement decision.” (Id.)

What’s more, after justifiably placing the student in the private school, the school has “...placed an “unconditional” obligation on the Parents to pay the tuition for the 2019The Parent asserts that the documentary and verbal reports available to the October 2019 review team identify a pattern of strengths and weaknesses that indicate a learning disability and that the DOE failed to adequately analyze the considerable discrepancy between the student's achievement and his intellect, which also establishes a learning disability. (P-J citing T-29-66, 132-3, 138-9, 141, D-7, D-8, D-9, D-10, D-21 & D-22)

The Parent notes that the DOE School Psychologist testified that the CSE considered a 2018 independent Neuropsychological evaluation, a March 2019 classroom observation, an April 2019 speech and language evaluation, an October 2019 Counseling Update, a May 2019 Speech and Language screening, a June 2019

Occupational Therapy Evaluation; and information from the student’s Parents, thencurrent special education teacher, then-current speech therapist, then-current occupational therapist, and then-current social worker/counselor, but the CSE did not speak with, or request documents from the student’s public school. (P-J citing T-44-5 & D-11)

While it is true that the Neuropsychological Evaluation was reviewed at the IEP meeting, the DOE psychologist conceded that certain portions were not reviewed by her, like the NEPSY results. (T-63) She also did not review the Cognitive Assessment System 2 test (could not speak to this document) the NEPSY-II: a developmental

Neuropsychological Assessment and the Connors Kiddie Continuous Performance Test (P-J citing T-64-5) Additionally, the Parent argues that, some of the evaluations relied upon by the DOE were deficient in that they did not evaluate the student in all areas of his suspected disabilities. For example, the April 5, 2019 Speech and Language Evaluation conducted by the DOE, however, did not assess the student's pragmatic language, which is a known area of weakness for the student. (P-J citing D-6 & D-9)

As was noted in the DOE’s direct case, the Parent notes that despite the DOE’s determination that the student was not eligible for special education services, the DOE recommended a number of management needs for the student. The Parent's argument is as follows: The DOE also included several specific management needs that delineate the nature and degree to which environmental modifications and human or material resources are required to enable [STUDENT INITIALS] to benefit from instruction (Ex. 2) (8 NYCRR § 200.1 (ww) (3)(i)(d)).. Thus, the team found that, for [STUDENT INITIALS] to benefit from instruction, he requires: (1) positive reinforcement and praise; (2) graphic organizers and outlines; (3) anchor charts; (4) repetition of key concepts; (5) redirection in a discrete manner; (6) multisensory approach to instruction; (7) masks and markers when reading; (8) encouragement to add more details to written responses; (9) chunking of information; (10) reminders to slow down when reading; (11) modeling; (12) repeating directions back to teacher; and (13) breaking instruction down into manageable steps (Ex. 2, pg. 5).

Nevertheless, by refusing to classify [STUDENT INITIALS] as a student with a disability, the October 16, 2019 team precluded [STUDENT

INITIALS]’s receipt of the environmental modifications, human resources, and material resources deemed necessary for him to benefit12 from instruction. (P-J)

Accordingly, the Parent argues that the CSE’s endorsement of these modifications and accommodations evidences the DOE’s understanding that the student challenges impact his functioning in a classroom. (ld.)

In support of his assertion that the private school was an appropriate placement for the student, the Parent notes that the school is a New York State, approved, non-public, day school for bright students with language-based learning disabilities, that the student is in fact a bright student and exhibits a profile consistent with a language-based learning disability and given his specific educational needs, gleaned from evaluations, reports, observations, conversations with the student and his Parents, as well as a formal interview of the student and his need for the individualized, multisensory, and small group instruction provided by the private school, the record establishes that the student receives the requires explicit structure he needs while learning; and that the private school provides the appropriate level of structure. (P-J citing T-141, D-7, P-G & P-H)

At the private school, the student is in a classroom with eleven other students and two teachers. (P-J citing P-H) He receives explicit instruction in reading, writing, and math; as well as individual attention from teachers and therapists; for reading comprehension, he is taught using trade books, mentor texts, and through the Fountas and Pinnell Leveled Literacy Intervention Program and he receives teacher support, graphic organizers, and teacher modeling when formulating language, while he also receives support both in his classroom and in pull-out sessions which address his challenges with visual motor control, pencil grasp, handwriting, in hand manipulation, finger isolation, core strength, eye-hand coordination, bilateral coordination, and motor planning, and for his issues with self-esteem, the student works with a Social Worker and is part of a social-skills group. (P-J citing T-190-1, P-G & P-H) The Parent argues that the student benefits from the highly specialized instruction provided by the private school as well as his access to 1:1 support, structure, language-based environment, and repetition in a full-time special education support in a self-contained setting with special education teachers that are qualified and able to provide individualized support throughout the entire school day. (Id.)

Finally, there is no equitable basis to deny the Parent’s request for relief. Clearly, the record evidences the Parent’s cooperation with the agency in signing consent forms, providing documentation and attending the IEP.

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, 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 (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 [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)

If it was only a matter of assessing the makeup of the CSE team, the evaluative material it reviewed, the Parent's opportunity to participate at the meeting and whether or not the DOE considered, as it is required to do under the law, the private evaluation provided by the Parent, | think that the record could support a finding the that the student does not require special education services. Then again, considering the DOE’s recommended comprehensive list of “Management needs’, and the Parent arguments that the evaluative materials do evidence deficiencies, one could also find that the student requires special education services. However, it is the Parent's argument regarding the DOE’s delay in evaluating and holding a CSE meeting that is the basis for a finding of a denial of FAPE.

The record indicates that the Parent hand-delivered a formal request to evaluate the student to the DOE on December 14, 2018, receipt was acknowledged on December 20, 2018, on that day the Parent provided a consent to evaluate and on February 13, 2019 executed consent forms. (P-J citing D-13, D-15 & P-C) The DOE did not convene a meeting until (8) months later, on October 16, 2019. (Id.)

The claim in this case is for the 2019-2020 school year, which began on or about September 6, 2019 and ended on June 26, 2020. The Parent signed an enrollment agreement with private school on February 8, 2019 with the knowledge that they could withdraw from the agreement and be relieved of their tuition obligation of all but the deposit if they notified the school by June 15, 2019 that the student would be attending a public school program; or be relieved of two-thirds of their tuition obligation if they notified the private school by September 1, 2019 that he would be attending a public school program.

(P-J citing P-l) The DOE had approximately (6) months from when it received the Parent's signed consent from in February of 2019, to evaluate the student and convene an IEP meeting. While the Parent did sign an enrollment contract with the private school before providing the DOE with executed consent forms in February of 2019, he first requested that the student be evaluated in December of 2018, (2) months prior.

The Parent argues that pursuant to (20 U.S.C. § 1414 (a)(1)(C)(i)(I), 34 C.F.R.

§300.301 (c)(1)(i), 8 NYCRR §200.4 (d) and 8 NYCRR §200.4 [e]), the DOE denied the student a FAPE because it failed to timely evaluate the student or convene an IEP meeting. (P-J) Pursuant to the law, once requested, the initial evaluation and determination of a student's eligibility for special education must be completed within 60 calendar days of receipt of written consent for the evaluation. (Id.) Here, that did not take place for almost (1) year.

Although the decisions of the SRO do not set precedent, the argument in SRO No. 18-085, where the SRO found that, where the student's eligibility for special education had not yet been reviewed by the CSE but the district delayed the process of making that determination, the Parents had made a reasonable choice to place the student at a private school for the full school year and that there was broad authority to fashion equitable relief allows for reimbursement of that tuition, and in R.E. v. New York City Department of Education (694 F.3d 167), where the Second Circuit emphasized the importance of limiting a FAPE analysis to include a review only of the information “reasonably known to the parties at the time of the [parents’] placement decision’, are persuasive.

It is important to note, that considering the evaluative description of the student and the extensive “management needs” the DOE recommended, the Parent’s concerns are not without merit and in the absence of action by the DOE, he justifiably placed the student in the private school, which in turn “...p/aced an “unconditional” obligation on the Parents to pay the tuition for the 2019-20 school year and the inaction by the DOE, which caused the unilateral placement, should be found by the IHO to extend to the full

2019-20 school year for both legal and equitable reasons. (P-J citing SRO No. 18-085)

The DOE’s failure to comply with the legal timeframe for evaluating the student is a “procedural deficiency” under the IDEA. 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][S][E]fii]; 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]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007] affd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]) Here, based upon the DOE’s recognition of the student's management needs, and to the extent that he did not receive the services contemplated therein, it is arguable that he was deprived of educational benefits.

Nevertheless, the totality of the circumstances lead me to agree with the reasoning in SRO No. 18-085. The Parent in this case made a reasonable choice to place the student at a private school for the full school year and the broad authority to fashion equitable relief under the IDEA, allows for reimbursement of that tuition.

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)

There is ample evidence demonstrating the appropriateness of the private school. It is a New York State, approved, non-public, day school for bright students with languagebased learning disabilities, that aligns with the student in this case. (P-J citing T-141, D7, P-G & P-H) The student is in a classroom with eleven other students and two teachers and receives explicit instruction in reading, writing, and math; as well as individual attention from teachers and therapists; for reading comprehension, he is taught using trade books, mentor texts, and through the Fountas and Pinnell Leveled

Literacy Intervention Program and he receives teacher support, graphic organizers, and teacher modeling when formulating language, while he also receives support both in his classroom and in pull-out sessions which address his challenges with visual motor control, pencil grasp, handwriting, in hand manipulation, finger isolation, core strength, eye-hand coordination, bilateral coordination, and motor planning, and for his issues with self-esteem, the student works with a Social Worker and is part of a social-skills group. (P-J citing T-190-1, P-G & P-H) The Parent credibly argues that the student benefits from the highly specialized instruction provided by the private school as well as his access to 1:1 support, structure, language-based environment, and repetition in a full-time special education support in a self-contained setting with special education teachers that are qualified and able to provide individualized support throughout the entire school day. (Id.) I find that the private school was an appropriate placement for the student’s 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. In fact, for all of the reasons stated above, equitable consideration justify the Parent's requested relief. For all of the reasons stated herein, I find that the Burlington/Carter test is satisfied in favor of the Parent and that he has met his burden under Schaffer to prevail in his request for tuition reimbursement.

NOW therefore, it is hereby

ORDERED 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 cost at the private school for the entirety of the student’s 2019-2020 school year thereat; and it is further

ORDERED that the DOE shall also conduct a re-evaluation of the student in all areas of his suspected disabilities, not evaluated within the last two years, for the 2020-2021 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 2020-2021 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: September 24, 2020

New York, New York Edgar De Leon - |.H.O.

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

[23] citing D-7) The student did not receive interventions in the public school to address any academic weaknesses. (D-23 citing T-39, 56, 58, 159 & 160) The student's social history evaluation does not note any concerns. (D-23 citing D-5) At the Parent’s request, a speech and language evaluation was conducted on April 5, 2019 that concluded that the student’s core language score was above average, his narrative was within age-level expectations, and his speech intelligibility judged as “good”, with any weaknesses in his speech not adversely affect his education. (D-23 citing D-6)

[20] school year and the inaction by the DOE, which caused the unilateral placement, should be found by the IHO to extend to the full 2019-20 school year for both legal and equitable reasons. (P-J citing SRO No. 18-085)

[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 by the board of education were inadequate or inappropriate, the services selected by 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., the parents were appropriate, and equitable considerations support the parents’ claim.