New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 190782

Student’s Name:

Date of Birth:

District Number:

Hearing Requested by: Parent

Dates of Hearing: December 20, 2019

March 19, 2020

June 17, 2020

Record Closed Date: September 15, 2020

Hearing Officer: Gary D. Peters, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

December 20, 2019 March 19, 2020 June 17, 2020

Attorney Parent

DOE Designee Department of Education

Attorney Parent

None DOE Designee Department of Education

Attorney Parent

DOE Designee Director/Speciad Education Department of Education

Parents

Mother Parent

PARENT’S EVIDENCE

A. Exhibit Title Date Number of Ten Day Notice August 21, 2019 2 pes

B. Impartial Hearing Request November 8, 2019 3 pes

C. Report Card March 2020 8 pgs

D. Teacher Report November 18, 2019 4 pes

E. Counseling Progress Report November 4, 2019 1 pg

F. Occupational Therapy Report | November 24, 2019 2 pgs

G. Speech and Language Report | November 12, 2019 2 pgs

H. Program Description Undated 32 pgs

I. Contract August 24, 2019 4 pes

J. Payment Affidavit October 3, 2019 1 pg K. Tax Returns 2018 2 pes

L. Schedule 2019-2020 1 pg

M. Attendance 2019-2020 1 pg

DOE’S EVIDENCE

None

INTRODUCTION

On the above dates, I conducted hearings, pursuant to the Individuals Disability Education Act (IDEA, 20 U.S.C. section 1415 (f)(3) regarding a special education program, Students with Disability, New York City Impartial Hearing Case # 190782. The hearings were held at the impartial hearing office, New York City Department of Education, at 131 Livingston Street, Brooklyn, New York. At the hearing, their Attorney represented the Parents/Student; represented the Department of Education.

THE DOE’S POSITION

The DOE presented no witnesses and rested. However, it conceded that an IEP was not provided for the beginning of the 2019-2020 school year.

PARENT’S POSITION

Parent’s counsel maintained that the Committee on Special Education (" CSE" ) failed to offer a procedurally valid and substantively appropriate IEP, placement, and service recommendations ina timely manner for the 2019-2020 school year. Parents assert that the CSE failed to timely provide prior written notice, to conduct sufficient evaluations, to obtain sufficient clinical data, and to provide with a FAPE in compliance with the Individuals with Disabilities Education Improvement Act of 2004, and Section 504 of the Rehabilitation Act of

19 73.

The Parents unilaterally enrolled at the School, located at , N.Y., as of the first day of school for the academic year 2019-2020 and seek funding for this placement from the district The Parents maintain that _’s placement at was appropriate for the 2019 — 2020 school year, in order to address her academic and social/emotional needs and was reasonably calculated to enable her to receive educational benefits.

Lastly, the Parents maintain that there are no equitable considerations which would bar reimbursement. The Parents cooperated in the CSE review and placement process at all relevant times.

BACKGROUND

is a youngster known to the CSE because of her significant educational needs. She has been the recipient of special education and related services under the auspices of the NYC Department of Education (DOE) for several years.

On February 9, 2018, the CSE met to develop an IEP for the 2018-2019 school year. At that meeting the CSE classified as Other Health Impaired and recommended placement in an 12:1 special class. The Parents maintain that to date the DOE’s IEP and recommended program deny a FAPE on procedural and substantive grounds. The Parents further maintain that a valid IEP has not been created for and that the CSE failed to offer an appropriate placement for her.

PARENT’S CASE

Ms. affirmed that her testimony would be truthful. She stated that she was a Teacher in a general education school for 10 years in various grades and thereafter a Curriculum Director in a general education school. Her current employment is a Director of Special Education at ; she has held that position for 12 years. Her duties and responsibilities include establishing the goals and procedures for all the areas of child development, including academic, social, emotional and behavior goals. She established the curriculum and the guidelines for all subject areas, hires appropriate personnel and supports them to implement the program. She maintains systems for communication between students, parents and staff members.

Ms. plays a role in the admissions process at . Initially, a parent calls to request an application; the first step is to gather information. Thereafter, an application is sent to the parent to return with relevant reports. Next, the admissions team contacts professionals that worked with the child previously, reviews reports and other evaluations. After reviewing all the documents, she determined that was not intellectually impaired and that her deficits were not in other domains aside from learning. At the parental interview, various therapists across different domains participated in order assess the child and determine if an appropriate classroom placement could be made.

The witness also stated that there are three specialized tracks in alongside the general education track. The first track is called the , which is for children that are intellectually impaired, and developmentally delayed. Many of the students in these classes are children with Down Syndrome. The second track is the “ ”: this is for students who are primarily academically impaired. Although they may have minor deficits in other areas, their main concern is academics. The third track is called the “ ” which teaches students who are academically, socially and emotionally challenged.

The witness stated that she knows and that she attends the program. Ms. stated the school consists of three floors and a lunchroom. The students are divided by their grade range, which allows them to socialize in a class, during recess break, lunch and in extracurricular activities. This permits mainstreaming if applicable for a particular student. Some students are mainstreamed for academic subjects and some for extra curricular activities based on the student’s needs, desires and strengths. For the 2019-2020 school year, there were 8 female students in _’s class as is an all girl’s school. There is a teacher and an assistant at all times; in certain subject areas such as reading and math, there is an additional assistant for smaller groupings.

Ms. further stated that she meets bi-weekly with every main teacher in each classroom. Additionally, there are monthly meetings; the entire staff meets for one hour, wherein student’s needs, goals and strategies are discussed. The staff in class has independent meetings regarding subject goals on a scheduled basis. The has licensed related service providers involved with the students. Regarding professional development, the staff engages in topics related to academics, behavior, social and emotional development and executive functioning. Additionally, during the school year, there is one day of professional development wherein topics are re-visited.

The witness described as a student who is motivated and uses her time well; she is eager to please and was fully present to learn. Her struggle is two-fold: firstly, on an academic level, she struggles with comprehension across all domains. She needs information to be broken down and takes a long time to “grasp something”. She requires a multi-sensory approach throughout the whole process. Additionally, she needs “different kind of anchors”; whether it’s charts, diagrams or different kind of visual information in order to access and remember lessons.

Additionally, the witness stated that suffers from anxiety, which affects her ability to make progress and be present. She requires support throughout the day for learning. Ms. stated that there is a threepronged approach to address __’s anxiety: a) The OT’s approach aids with the physical component of anxiety with a sensory diet. They incorporate many different programs in their occupational therapy that has been helpful. There is rhythmic movement, which is similar to massaging and other types of physical components such as a “brushing protocol’. b) Counseling is a cognitive part, as having understand “what’s going on in her and to determine why she shuts down and to provide assistance to identify and express these difficulties; c) teacher support in a classroom is a nurturing environment where feels comfortable. Over the course of the year, she has shown “a tremendous amount of progress” wherein, although she still is anxious, the level of anxiety has gone down. She has been able to participate in some academic mainstreaming which was previously impossible for her.

During the prior school year, was unable to participate in any mainstreaming. In the current school year, mainstreaming during lunch and recess was provided. Throughout the course of the year, was comfortable in the lunchroom. However, sitting at a table with mainstream peers has not yet been accomplished; however, she has joined a mainstream class for one subject. As the year progressed, was able to come and go independently and able to take notes, fill out sheets and come back with her notes to the classroom. Additionally, multi-sensory instruction was provided for decoding and encoding. Anchor charts, diagrams with modeling, dialogue and drawings were used to have her portray her understanding and comprehension of text. “They also worked a lot on the following directions, both verbal and written”. In terms of mathematics, the witness stated “we try to align ourselves with the Common Core so that, in terms of multi-sensory, the instruction is based off making math real or “Which is a Very Clear, Guided, Step by Step Method of Instruction That Goes From Concrete to Semi-concrete to Semi-abstract and to Abstract’.

Regarding written expression, as in the reading program, “we use a lot of anchor charts, visual aids and graphic organizers to help the student with her pre-writing phase”. Written expression is one of her strengths.

The witness was directed to Exhibit L, the schedule and curriculum for 2019/2020 school year. From 9:45 a.m. to 10:00 a.m., there is a brain gym, which is grouped and led by occupational therapists and teachers. Brain gym is a research-based program that is an exercise program at the start of the day: it helps with the right brain/left brain integration and with learning. On Thursdays from 9:30 a.m. to 10 a.m., there is mandated speech therapy; is not present during one of the days in the morning reading or brain gym when the class has that schedule. The scheduling of related services based on the student’s needs and strengths. Ifa child is being mainstreamed for a specific subject, “We will never take the child during that time for therapy”. The basic policy is that a child should never miss one subject more than once a week.

On Monday — Thursday from 11:15 a.m. — 12:00 p.m., participates in “Visualizing and Verbalizing” which is a program that it is designed and created by Lindamood — Bell. The program is designed and utilized by a Speech Therapist and develops visualizing and verbalizing skills. Specifically as it relates to —_, is if someone’s missing the skill of visualizing, they have a hard time both with comprehension and recall. has a difficult time with short-term memory and being able to remember facts and details, she benefits tremendously from the program such as Visualizing and Verbalizing.

On Wednesdays from 12:00 p.m. to 12:30 p.m. there is another intervention entitled “Listening Comprehension”. Ms. focused primarily on Visualizing and Verbalizing. “It is more like a regular classroom and a lot of learning takes place on the auditory level. The program tries to make sure that students are able to hear slowly and record the details”. The witness stated that this program functions well and runs parallel to her general comprehension periods. She believes that is making a tremendous amount of progress at the point where she is able to hear and understand greater chunks of information, longer chunks of information at one time. Regarding “listening, is able to answer questions over longer periods of time; however, regarding her reading level, can answer questions at the end of the chapter compared as to the end of a paragraph. On Wednesdays from 1:05 p.m. to 1:30 p.m. Occupational Therapy — Enteroception Group is presented. This is a new field in Occupational Therapy wherein the attending therapist assists the students understand how their bodies feel, different parts of their body including their heart, chest, hands, face and learning to feel physical signs of their body such as sweating.

The witness stated that if students struggle with emotional regulation such as anxiety, this group teaches the student how to become aware of their body signs so that they can begin to change. In _—’s classroom with 8 girls, she is very comfortable and has a lot of friends; she is popular and socializes easily.

The witness stated that from 9:00 a.m. to 9:30 a.m. there are “prayers” on a daily basis; there are no other religious instructions. She believed that religious instruction accounted for approximately 7% of the school day.

Ms. stated that has a remote learning plan in place for its students. The program includes various components of learning, prayers, lunch and other whole class instruction. There is a conference call type of lesson and recorded lessons; so that the class is all doing the same thing. There is individual instruction in main areas or small group instruction depending upon the student. In the areas of reading, writing and math there are small group instruction, which also takes place through conference calls. Students receive packets for learning and for reinforcement of skills from their teachers, they work in small group instruction similar to what “we consider independent center or literacy center”.

Ms. stated there is also therapy by phone depending upon the student’s needs. There is room access wherein a therapist will participate in various forms of therapy on their individual schedules. She approximated therapists are required to complete at least 50% of their mandate on individual instruction and the other 50% can be completed with reinforcement work sent home.

Lastly, the witness stated unequivocally that in her opinion the student made progress during the 2019/2020 school year both academically and with her anxiety.

THE DOE’S CASE

The DOE failed to offer testimonial evidence; however, maintained that they offered to provide — with a FAPE for the 2019- 2020 school year with an appropriate program to address all areas of deficits.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The purpose behind the Individuals with Disabilities Education Act (IDEA) is to (20 U.S.C. section 1400-1482) ensure that students with disabilities have available to them a FAPE; see Schaffer v. Weast, 126 S. Ct. 528, 531 [2005]; Bd. Of Education v. Rowley 458 S. CT. 176, 179-81 [1982]; Frank G. v. Bd. Of Edu. 459 F. 3d 356 371 92d Cir 2006). A FAPE includes special education and related services designed to meet the student’s unique need provided in conformity with a comprehensive written IEP (20 U.S.C. section 1401 [9] [D] 34 C.F.R. section 300.13 see 210 U.S.C. section 1414 ‘d’; 34 CFR Section 200-347

_; The student’s recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. section 1412 [a][5][A]; CFR section 300.13 [a][2][i], 200.1.116 [a][2]; 8 NYCRR 200.6 [a][1]; see Walczak v. Fla Union Free School Dist. 142 F. 3d 119, 132 [2d cir. 1998].

The legal standard applicable to request for payment for educational services such as in this case is well established. A Department of Education may be required to pay for educational services obtained for a child by the child’s parents if: 1. the services offered by the Department of Education were inadequate or inappropriate, 2. the services selected by the parents were appropriate and 3, equitable considerations support the parent’s claims (Sch. Comm. of Burlington v. Dept. of Educ. 471 U.S. 359 [1985]; Florence County Sch. Dist. Foru v. Carter, 510 U.S. 7 [1993]; Cerra v. Pawling Center, School 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 developed a proper IEP.”

Under the second criteria of the legal standard, the child’s parent bears the burden of proof with regard to appropriateness of the services, which the parents obtained, for the child for the current school year (Application of a Child with a Disability, Appeal No. 94-29; Application of the Bd. Of Education of the Monroe-Woodbury CSE, Appeal No. 93-34; Application of a Child with a Disability, Appeal No. 95-57, in order to meet that burden, the parent must show that the services were “proper under the act”, (IDEA) (Burlington 471 U.S. at 370) i.e. that the private school offered an educational program which met the child’s special educational needs (Application of a Child with a Disability, Appeal No. 94-29). The test for the parent’s private placement is that it is appropriate not that it is perfect (M.S. v Bd. Of Educ, 231 F 3d 96, 105 [2d Cit. 2000] cert. denied 532 U.S. 942 2001. The private school need not employ certified special education teachers, nor have its own IEP for the student. While parents are not held as strictly to the standard of placement in the LR as school districts are restrictiveness of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement (Rafferty v. Cranston Pub. School Comm. 315 F. 3d, 21, 26-17 [1st Cir. 2002].

The final criterion of an award of tuition reimbursement is that the petitioners’ claim is supported by equitable considerations (Carmel Centre Sch. Dist. V.V.P. 373 F Supp. 2d 402, 416 [S.D.N.Y. 2005] aff'd 2006 SL 2334140 (2d cir. 2006); (Frank G. 459 F, 3d at 363-64), Equitable considerations are relevant to fashion relief under the IDEA (Burlington 471 U.S. at 374; Mrs. C. v. Voluntown Bd. Of Edu. 226 F. 3d 60, 68 [2d Cit. 2000]; see Carter, 510 U.S. at 16 (noting that [c]ourts 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 non-compliance with state and federal regulations pending review the reasonableness of the parties’ positions and like matters (Wolfe v. Taconic Hills Cent. Sch. Dist. 167 F. Supp 2d 530, 533 [N.D.N.Y. 2001] citing Town of Burlington v. Dept. of Educ. 736 F. 2ds at 773, 801-02 [1st Cir. 1984] aff'd 471 U.S. 359 [1985]; with respect to equitable considerations, 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 or upon finding of unreasonableness with respect other action taken by the parents 20 U.S.C. section 1412 (a)(10)(C)Gii) Warren G. v. Cumberland Co. Sc. Dist. 190 F 3d 80, 86 (32d Cir. 1999); see Application of the Bd. of Edu. Appeal No. 04-102; Application of the Bd. Of Educ. Appeal No. 04-026). However, reimbursement may not be denied or reduced for failure to provide such notice where compliance with the notice required would likely result in physical or emotional harm 20 U.S.C. 14122 (a)(C)(v)(D (cc) (ID (bb).

This hearing was requested pursuant to the Individuals with Disabilities Education Improvement Act of 2004, 20 U.S.C. $1404 et seg. (“IDEA”). “Congress enacted the IDEA ‘to ensure that all children with disabilities have available to them a free appropriate public education...designed to meet their unique needs... [and] to ensure that the rights of children with disabilities and parents of such children are protected.’” MH. v. N.Y.C. Dep’t. of Educ., 685 F.3d 217m 223 (2d Cir. 2012) (quoting 20 U.S.C. §1400(d)(1)(A)-(B)). The IDEA mandates that students with disabilities must be provided with a FAPE tailored to meet their unique needs and one that is reasonably calculated to “enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas Cty. Sch. Dist., — U.S.___, 137 S.Ct. 988,999 (2017); Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176 (1982); SRO 17-007, p. 10. A focus on the particular child is at the core of the IDEA. Endrew F., 1378S. Ct. at 999. To meet the IDEA’s requirements, a school district’s program must provide special education and related services that is “‘specifically designed’ to meet a 6 child’s ‘unique needs’” and is reasonably calculated to enable the child to receive educational benefits. Endrew

999

F., 137 S.Ct. at 999 (emphasis in original); .H., supra, 685 F.3d at 224 (quoting Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 107 (2d Cir. 2007)).

A denial of FAPE can be one that is substantive or results from violations of the procedural protections of the IDEA and its implementing regulations. Procedural violations result in the denial of FAPE “if they ‘impeded the child’s right to a [FAPE},’ ‘significantly impeded the parents’ opportunity to participate in the decision-making process,’ or ‘caused a deprivation of educational benefits.’” 20 U.S.C. §1415(f)(3)(C)(i); A.C. ex rel. M.C. v. Bd. of Educ. of Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 (2d Cir. 2009); see also Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 659 (S.D.N.Y. 2005) (“Multiple procedural violations may cumulatively result in the denial of FAPE even if the violations considered individually do not.”) In sum, Rowley stands for a two-part entitlement: eligible families are entitled to an IEP that both (a) affords a placement that, substantively, is “reasonably calculated” to afford meaningful educational benefit to the child, and (b) is developed in procedural accordance with the requirements of federal law.

In this jurisdiction, the standard by which the appropriateness of a private placement is measured was articulated by the Second Circuit in the case of Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364-65 (2d Cir. 2006). In Frank G., the Court recognized that parents seeking reimbursement for a private placement bear the burden of demonstrating that the private placement is appropriate, even if the proposal in the IEP is inappropriate (citing M_S., 231 F.3d at 104). The Court stated that a request for reimbursement will not be barred even though the private school the parents choose does not meet the IDEA definition of a FAPE (see 20 U.S.C. § 1401(9) or state education requirements (see Carter, 510 U.S. at 14).

No one factor is necessarily dispositive in determining whether parents’ unilateral placement is appropriate and “reasonably calculated to enable the child to receive educational benefits.” Rowley, 458 U.S. at 207. 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. See Knable ex rel. Knable v. Bexley City Sch. Dist., 238 F.3d 755 (6th Cir.2001). 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. See M.S., 231 F.3d at 105. 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.” Row/ey, 458 U.S. at 188—89 (internal quotation marks omitted).

More recently, in 7.K. v. New York City Dep’t of Educ., 810 F.3d 869, 877-78 (2d Cir. 2016), the Second Circuit reaffirmed that parents “bear a lower burden” of demonstrating the appropriateness of a private placement than school districts do in establishing the provision of a FAPE. Indeed, parents are not barred from reimbursement simply because the private school they choose does not meet the IDEA definition of a FAPE. Once again, parents are only required to demonstrate that the private placement was appropriate, 1.e., reasonably calculated to provide educational benefit, as evidenced by the progress made at the private school. The private school does not have to provide every related service on site, nor hire certified special education teachers, or even provide an IEP for the disabled student. Additionally, parents “may not be subject to the same mainstreaming requirements as a school board.” M.S., 231 F.3d at 105 (citing Warren G. v. Cumberland County Sch. Dist., 190 F.3d 80, 84 (3d Cir.1999).

In sum, the test for the private placement “is that it is appropriate, and not that it is perfect.” C.L., 744 F.3d at 837 (quotation marks omitted); see also I.B. v. New York City Dep't of Educ., 2016 WL 1069679, at *17-18 (S.D.N.Y. Mar. 17, 2016).

Parents put the DOE on notice of his placement and intent to seek reimbursement (See, 20 U.S.C. §1414(a)(10)(C)(ii1)(D(bb); In response, the DOE did nothing to address the Parents’ concerns or to develop alternative program or placement recommendations. Ms. M. ex rel. K.M. v. Portland Sch. Comm., 360 F.3d 267 (1st Cir. 2004) (parents are required to provide a school district with notice of their intent to unilaterally place their child and seek reimbursement to allow the district an opportunity to address the parents’ concerns). “[E]quitable considerations are relevant in fashioning relief, and the court enjoys broad discretion in so doing. Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required.” Carter, 510 U.S. at 16, 114 S.Ct. 361 (citation omitted); see also A.C., 553 F.3d at 171 (“In fashioning relief, equitable considerations relating to the reasonableness of the action taken by the parents are relevant.” (citation omitted)). Statutory language in the IDEA specifically contemplates that a reimbursement award may be reduced or denied if the parents, inter alia, fail to timely notify the school district of their intent to enroll their child in a private school at public expense; fail to make their child available for an evaluation; or otherwise act unreasonably. See 20 U.S.C. §1412(a)(10)(C)(iii).A.D., 690 F. Supp. 2d at 215.

The Parent never engaged in any manner so as to impede the process. See [.B. v. New York City Dep't of Educ., 2016 WL 1069679, at *17-18 (S.D.N.Y. Mar. 17, 2016) (parent's claim for reimbursement may be denied upon a finding of a failure to cooperate with the CSE in the development of an IEP, or if the parent's conduct precluded the CSE's ability to develop an appropriate IEP, however, in the absence of evidence demonstrating obstructive conduct on the part of parents, equitable considerations militate in favor of an award of relief to parents who have been denied their rights under the IDEA); see also C.F. ex rel. R.F. v. Dep't of Educ., 746 F.3d 68 (2d Cir. 2014). Here, there is no evidence that the parents obstructed the DOE's proceedings and the DOE has pointed to no inequitable conduct on the part of the parents. Accordingly, under governing legal standards, Prong III equitable factors do not preclude reimbursement.

While “[t]he Establishment Clause prevents a State from enacting laws that have the purpose or effect of advancing or inhibiting religion,” the Supreme Court of the United States “draw[s] a consistent distinction between government programs that provide aid directly to religious schools and programs or true private choice, in which government aid reaches religious schools only as a result of the genuine and independent choices of private individuals.” Ze/man v. Simmons-Harris, 536 U.S. 639, 649 (2002); see also Widmar v. Vincent, 454 U.S. 263, 399-400 (1981). Funding for the sectarian components of — ’s school day is thus permissible, as the IDEA provisions that allow for funding for a private school placement pass the “Endorsement Test” proffered in Ze/man, as the IDEA itself has a secular purpose. L.M. v. Evesham Township Bad. if Educ., 256 F. Supp.2d 290 (D.N.J. 2003).

“The endorsement test instructs the courts to consider two factors.” Jd. at 303. The first is “whether the program administers aid in a neutral fashion, without differentiation based on the religious status of beneficiaries or providers of services." /d. The second factor, which the L.M. court found to be more important, is "whether beneficiaries of indirect aid have a genuine choice among religious and nonreligious organizations when determining the organization to which they will direct that aid." Jd.

The instant case meets both criteria. With regards to the first, the IDEA primarily anticipates that public funds will go to public schools, allowing for private school reimbursement only when a school district fails to meet its obligation to provide a FAPE. /d., 20 U.S.C. § 1412(a)(10)(c)(i1). Secondly, the Parents could have chosen any private school program —sectarian or not for — . Therefore, that the had some

I will not repeat the details of evidence which support and basis for my findings of fact; my decision is grounded in the testimony and the reasoning as set forth above. As per the due process complaint, given _’s needs, he requires a more supportive educational setting that can provide him with individualized support within a smalsl and structured school program.

I find that the evidence established that was making “meaningful educational progress” for a child with a disability and that equitable concerns favor the Parent and that there is no bar to recovery. The preponderance of the evidence in the record supports a finding that is reasonably calculated to enable the to receive meaningful educational benefits for the 2019-2020 school year, rendering it an appropriate placement.

I agree with Parent’s counsel that has made progress within the special education program at , not only in her social emotional development but also in academics. The school as has a unique program in that it is embedded within a general education school. Additionally, the evidence indicated that the student was progressing in terms of her ability to be around typically developing peers, which is the goal of IDEA. The uncontroverted testimony and evidence demonstrated that provides an education with supports attuned to the Student’s particular strengths, deficits, and abilities with respect to her academic needs.

Additionally, a remote learning program is in place and has been a participant. Lastly, the DOE has not presented any proof that the parent’s in any way acted inequitably with respect to the process.

In summation, the record established that: (1) that the DOE failed to offera FAPE to __, that the unilateral placement by the Parent was appropriate; wherein she was making progress and that the equities weigh in favor of reimbursement. I find that the aforementioned failings and violations deprived of a FAPE under the IDEA for the 2019-2020 school year, significantly impeded the Parent's opportunity to participate in the decision-making process regarding the provision of a FAPE and caused a deprivation of educational benefits.

ORDER

I order that the DOE pay:

1. the sum of $56,000.00 for the 2019-2020 school year for tuition and related services to for the 2019-2020 school year; That payment shall made within 30 days of receipt of an invoice in a form satisfactory to the DOE.

Dated: September 15, 2020

Gary D. Peters, Esq.

Impartial Hearing Officer

PLEASE TAKE NOTICE

Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.

“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.” (8NYCRR279.2 [b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.

Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.