Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 192232

Student’s Name:

District Number:

Hearing Requested by: Parent

Dates of Hearing: August 19, 2020

December 18, 2019

October 2, 2020

Record Closed Date: December 1, 2020

Hearing Officer: Gary D. Peters, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED August 19, 2020 October 2, 2020

Attorney — Parents

Doe Designee — Parents

Attorney — Parents

Doe Designee — Parents

PARENT’S EVIDENCE

Exh.# Title Date Number of

Pages

Letter Date Name of Document # of Pages

A 1/22/20 DPC 3

B 8/21/19 Parent letter with receipt 3

C 10/15/19 Parent letter with receipt 2

D 9/24/20 Parent Affidavit 4

E 4/2019 Neuro/Psych Educational Evaluation 10

F 2019 Mid Year School Report 16

G 2020 Year End School Report 10

H 19-20 Tuition Contract 7

I 2/11/20 Affidavit of Payment 1

J 19/20 Proof of Payment 16

K 19-20 Daily class schedule 1

L 19-20 Final Attendance 1

M 3/2020 Distance Learning Program 2

N School Affidavit 5

10/1/20

DOE’S EVIDENCE

Exhibit No. Description of Exhibit Pages Date 1 Individualized Education Program (IEP) 27 7/24/19

2 IEP Attendance Page 1 7/24/19

3 Prior Written Notice/School Location Letter 8 8/7/19

4 Social History Update 2 5/21/19

5 Neuropsychological and EducationalEvaluation 18 4/23/19

6 Speech and Language Remediation Report 2 6/2019

7 Occupational Therapy Progress Note 1 6/2019

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 # 192232. The hearings were held Remotely. At the hearing, their Attorney represented the Parents/Student; Dr. represented the Department of Education.

THE DOE’S POSITION

The DOE submitted its evidence and rested.

PARENT’S POSITION

An IEP meeting was conducted on July 24, 2019 for the student, hereinafter referred to The Parents assert that the IEP created at the meeting is both procedurally and substantively invalid including invalid CSE composition and insufficient goals and objectives; as well as goals that could not be reasonably obtained in the DOE proposed program. Moreover, the process by which this meeting was conducted fails to comply with appropriate CSE procedure and the CSE failed to appropriately review theevaluative dataso that the IEP fails to sufficiently describe the student and her level of need. Furthermore, the prior written notice fails to establish the CSE's rationale for their determinations.

The CSE recommended theICT (plusSETSS) program . However, both this program and placement were inappropriate for As was noted at the meeting, she requires asmall, full-time, special education class and school setting; that a general education co-teaching class is too large for her and fails to provide the individualized special education support that is required.

At the time of the IEP meeting was attending in small special education classes. Despite the progress she has been making, continued to struggles in her small classes at . Based upon needs and academic deficits it is unclear as to how the CSE concluded that she would be able to handle a class double thesize, withless individualizedsupportthantheclass she was attending at thetime of the review. Furthermore, the addition of SETSS services in addition to the ICTclass setting is not sufficient to make up for her need for asmall class setting.

The CSE team had a full neuropsychological evaluation and incorporated many recommendations into the IEP; however, they failed to follow the recommendations of this report regarding placement. Moreover, at the IEP meeting it was noted that requires a speech evaluation. The team told the parent that they should wait to get the IEP and then request a speech evaluation. Parent asserts that it was not clear why the team failed to arrange for the speech evaluation as discussed at the meeting. The proposed IEP noted that was receiving speech at the time of the meeting. Thus, upon receiving the proposed IEP, in August 2019 the parent requested a speech evaluation; however, it was not completed when the due process complaint was filed. After the July 2019 meeting a placement was issued for . Upon receiving the placement, the parent promptly contacted the school to arrange for a visit. However, despite numerous calls to the school, no one from the school retuned the parent's calls. The parent went to the school in order to arrange a visit or speak to someone about how the program would work for her daughter. Upon her arrival, she was informed that she needed to speak with . Inexplicably, several weeks into school year, after going to the school, the parent received a response from the school. Furthermore, the parent’s visit to reinforced her feelings that her daughter is not ready for an ICT program. At the visit, she was told that the ICT class has 18 students enrolled; the parent believed that her daughter is not ready for the larger class size. She requires more differentiated instruction than can be provided in this mainstream ICT class. Parents counsel maintained the lack of timely response from the ., undermined the parent’s ability to understand the IEP program and participate in the IEP process.

Additionally, the Parent opined that the recommended SETSS program could not provide the support that her daughter requires. The SETSS program at places all of the children with special education needs together in a group based upon their grade, rather than their individual needs; that this setting fails to provide the intensive support she requires.

Parent’s counsel maintained that the CSE failed to offer a procedurally valid and substantively appropriate IEP, placement, and service recommendations in a timely manner for the 20 I 9-2020

school year.

The Parents unilaterally enrolled their daughter at ( ) as of the first day of school for the academic year 2019-2020 and seeks funding for this placement from the DOE.

The Parents maintain that their daughter’s placement at was appropriate for the 2019 – 2020 school year, addresses her academic and social/emotional needs and is reasonably calculated to enable her to receive educational benefits.

Notably, 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.

PARENT’S CASE

The Parent a/k/a as , submitted an affidavit in lieu of testimony and stated that her daughter is a years old student and is a kind, loving and happy child. She tries very hard and wants to do well, however, she has had significant learning struggles since an early age. Based upon her last evaluation from the , she was recently diagnosed with a Specific Learning Disorder in math , Developmental Coordination Disorder and Other Specified Neurodevelopmental Disorder with a weakness in nonverbal cognition, has attended

(" ") as she was unable to keep up in a mainstream setting, even with significant special education support.

The affiant noted that an IEP review was held for on July 24, 2019, in anticipation of the 2019-20 school year. She provided the a new neuropsychological evaluation summary to the CSE team. The evaluation reported on need to continue in a full-time special education school. Furthermore, the staff from explained her need to continue in full-time special education setting. Additionally, there was no information to support

“anything other than placement in a special education school”. The Parent maintained that despite this information the CSE recommended an Integrated Co-teaching class (" ICT") with additional Special Education Teacher Support Services ("SETSS") in a community school.

had concerns that an ICT class would not provide enough support for her daughter. It was her opinion that the class was too large and that she would be unable to keep up; she required a much smaller class and school setting . Noteworthy, even at , in small full time special education classes her daughter had struggles.

The Parent maintained that adding additional SETTS would not make the ICT appropriate.

On the contrary, it created more transitions for and that an hour of small group instruction is not sufficient.

The Affiant stated that after the IEP meeting in August 2019 she received a school location letter for . She attempted contact with the school to arrange for a visit; however, despite numerous phone calls, no one from the school returned her calls prior to the start of the school year. She also went to the school in order to try and arrange a visit or to obtain information; however, she was told that she needed to speak with . She was unavailable and didn’t return her calls. She didn’t receive a response from the school and was unable to visit the program until well after the school year began. Her visit to reinforced her belief that her daughter was not ready for an ICT program. At the visit, she learned that that the ICT class had 18 students; although this is a small size for an ICT class, it was still a third larger than her daughter’s program. The Parent opined that the recommended SETSS program could not provide the support that her daughter requires as it simply placed all of the children with special education needs together in a group based upon their grade, rather than their individual needs.

The Parent advised the CSE of her concerns in writing in August 20 l 9 and October 2019 after visiting

.; she received no substantive response. She stated that also requested a speech evaluation for her daughter based upon the suggestion of the July 2019 IEP team; however, a speech evaluation still has not been conducted. Based upon the lack of appropriate IEP and placement remained at for the 2019- 20 school year. The Parent asserted that if the CSE had offered an appropriate program for her daughter that she would have considered same. Additionally, if she signed a contract with she was able to opt out of the contract until September 2019.

stated that provided the small classes and specialized instruction that her daughter required for the 2018- 19 school year. Over the course of the 2019-20 school year she made progress; with 1:1 math support, her daughter’s math skills improved. Additionally, her daughter has become “a stronger reader and could read out loud”. She did not have those skills prior to the 2019-20 school year. The Parent opined that her daughter is a more confident and told her “how proud she is of herself when she does well on a test or a report”. She raises her hand and participates in class discussions, is happier and likes going to school. The affiant attributes the progress to the level of individuated support that received at and the work is tailored to her needs.

The teachers have provided her with strategies and supports that have allowed her to grow.

, submitted an affidavit in lieu of testimony and stated that she is the Upper School Director at (" ") located at . She has worked at since July 2, 2018, has worked in the education field for 22 years and in special education schools for 6 ½ years. The affiant has a Masters in Special Education/Learning Disabilities and Reading, and an advanced degree/certification in Educational Administration. She also has four certifications in New York State: K-12 Special Education , K-12

Reading Specialist, School Building Leader, Superintendent.

As Director of the Upper Division, the affiant is responsible for: the daily running of the division which includes the supervision of students and teachers, scheduling, hiring, instructional needs, etc. is an independent, nonprofit school for students ages three to fourteen with learning differences who require an individualized, remedial curriculum to reach their full academic potential.

Approximately 393 students attend the school; 119 are in the Upper Division (approximately ages 11.6 to 14). The students have a range of learning disabilities such as dyslexia, receptive and expressive language, auditory processing, executive functioning, ADHD, and co-morbid anxiety. utilizes a collaborative educational team that includes: teachers, reading and math specialists, psychologists, speech therapists, occupational therapists and administrators who meet regularly to discuss each student's progress and review classroom dynamics. The teachers and assistant teachers have teaching responsibilities, to different degrees, including lesson planning, classroom management, problem solving, communicating with parents, collaborating with the educational team and individualizing programming based on the needs of the student.

noted that at , that a student’s progress is measured through formal and informal observations and assessments. In order to assess progress, teachers engage in classroom discussions and provide projects, worksheets, homework, informal assessments and content area tests. As the Upper School Director, she observe students formally and informally. She has regular weekly meetings with individual faculty and weekly divisional faculty meetings to discuss students’ needs

The Affiant is familiar with and described her as “a very sweet and hardworking student” and eager to please both teachers and peers. Additionally, is a passive learner and needs to be “pushed in her learning and is very reliant on others”. She has significant gaps in academic skills in both English Language Arts and math. However, with support her teachers have worked towards closing the gaps and pushing her to learn and master higher level skills.

The affiant noted that in the Upper School Division, had a different teacher for each of her classes. Her 2019-20 schedule included Literature/Writing, Math, History, Science, Advisory Technology, Gym and Visual/Performing

Arts; the class size ranged from 5-11 students. was grouped with students who had similar academic and social needs. 's Literature and Writing class was a 5:1 ratio taught by . She has a BA in English

Literature. a MAT in English Language Arts Education Gr 7-12 and a New York State Certification in English Language Arts Education Gr 7-12. received training in Orton-Gillingham and utilized it to support vocabulary development and comprehension of texts read through the study of morphology, Greek and Latin Roots and prefixes and suffixes. Additionally, received training in and utilized Notice and Note: Strategies for

Close Reading. Lastly, she was trained in The Writing Revolution, a program by Judith Hochman used for students with learning disabilities. In Literature, class focused on developing critical comprehension skills as well as increasing reading fluency.

Using novels selected by teachers, the class focused on understanding higher level character and plot development, as well as drawing inferences and making predictions about the stories they are reading. Over the course of the year, “ made strong progress in literature especially in her ability to draw inferences and predictions and make character connections. shared insightful comments during literature class and helped to spark classroom discussion.

In writing, class focused on the writing process with an emphasis on the revision and editing process ; her goals included learning how to write a multi-paragraph essay and a research paper. This included practicing the prewriting organizational skills that are necessary for research papers such as notetaking and outlining, better understanding the concepts of fractions and decimals; she became more accurate in her multiplication and division skills.

history class was taught by in an 8:1 class setting; he has a Bachelor 's degree in Communication

Arts from and a Master's degree in Special Education from . He is certified in New York State to teach Special Education, grades K-12.In History. was an active participant in class discussion and had concerns between events of the past and the present day. Goals for in history included working on notetaking, learning how to apply strategies and skills in writing. Throughout the entire 2019-20 school year remained engaged in her history class and completed all homework assignments.

had science in a group of 11 taught by ; he has an BS in Mechanical Engineering, specific training in curriculum development and multiple intelligences. In addition to , Speech Therapist-

, pushed in the class 50% of the class time. science class covered basic concepts related to chemistry and energy. Over the course of the 2019-20 school year, became more independent in her science classwork.

She was able to complete assignments with less teacher intervention and better understand the instructions and expectations of assignments. She produced higher quality written work in science lab reports.

participated in “Advisory” taught by ; she has a BS in Kinesiology and is finishing her Masters in Education in Literacy in November 2020. “Advisory” meets twice a day and focuses on social emotional learning, student advocacy and student/academic skills. The advisory program provides students with social-emotional, academic instruction and support. Character education is the keystone of the advisory program. Advisory classes utilize RULER (Recognizing, Understanding, Labeling, Expressing, Regulating) from to help students manage their emotions throughout the school day to support their academic success. Vocabulary development is an essential part of the RULER program; the speech and language pathologist pushes in once a week to focus on targeted emotional and academic language during the entire advisory vocabulary lessons. Student advocacy focuses on individual learning profiles, understanding and recognizing accommodations and strategies for success. Study skills in an advisory class focus on organization for short and long-term assignments, how to complete homework assignments, and how to prepare for exams. As tends to rely on her peers both academically and socially, advisory helped to teach how to advocate for herself and be more independent.

Due to COVID 19, in March 2020, program turned to virtual instruction; the program was a robust plan that mirrored her daily schedule prior to COVID. The affiant stated that based upon how presented in the small self-contained classrooms at and the level of support that she required, that would have been unable to handle the academic and social demands of a general education ICT class as offered in the IEP. JCT is not sufficient support for as she requires intensive small group instruction all day. As a passive learner, she requires a level direct teacher support and intervention which was unable to be provided in a general education environment. At the start of the 2019 school year, needed explicit, sequential instruction in all areas of the curriculum. She benefited from repeated exposure to new concepts and repeated practice of new skills to reinforce learning.

In “Addition”. needed daily encouragement to work on her independence in the classroom, relying less on her peers and more on her knowledge and learning. By June 2020, the school reported progress in all areas of content and noted that she was more comfortable in participating in each class. Lastly, the Affiant stated that this progress can be attributed to the staff and environment at . The school provides the intensive support that she receives and the material and curriculum is based upon unique needs. The small classes and individualized approach has helped grow as an academic and social student.

DOE’S EVIDENCE

None

THE DOE’S CASE

None

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)(iii) 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)(iv)(I) (cc)(II)(bb).

This hearing was requested pursuant to the Individuals with Disabilities Education Improvement Act of 2004, 20 U.S.C. §1404 et seq. (“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.’ ” M.H. 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., 137 S. Ct. at 999. To meet the IDEA’s requirements, a school district’s program must provide special education and related services that is “ʻspecifically designed’ to meet a child’s ‘unique needs’ ” and is reasonably calculated to enable the child to receive educational benefits. Endrew F., 137 S.Ct. at 999 (emphasis in original); M.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)(ii); 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.” Rowley, 458 U.S. at 188–89 (internal quotation marks omitted). More recently, in T.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, i.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)(iii)(I)(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 I.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.

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 needs, she requires a more supportive educational setting that can provide him with individualized support within a small and structured school program.

The DOE failed to provide testimony to substantiate the recommendations that were recommended. It’s the Parent's position that the recommendation was insufficient to meet needs as she is a student who requires a full-time special education placement. The simple admission of documents on its face does not sustain their burden of demonstrating that they have offered a FAPE

At the time of the IEP meeting, was attending the , she was in small self-contained class and school environment that was providing her sufficient and necessary support. The evidence has established that the student was making progress at ; however, at that IEP meeting there was a discussion about her need to continue with that level of support. Additionally, the CSE had a neuropsychological evaluation, which recommended that required a placement such as that which offered at . The DOE failed to establish valid reasons to recommend a large ICT program and support services, when all information demonstrated that she needed ICT. Accordingly, the program recommendation of the CSE for the 2019/2020 school year is unsupported and unable to meet her needs as set forth in the affidavits of the witnesses.

Regarding Prong II the affidavit from demonstrates the appropriateness of and the reasons that required a small self-contained environment, the progress she made over the school year, and how provided a tailored program to meet her individual learning needs as a student with significant learning disabilities.

Regarding Prong III, I find that the Parents have cooperated, participated in good faith in all parts of the process and that equitable consideration favor their position.

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. The preponderance of the evidence in the record supports a finding that the program was reasonably calculated to enable to receive meaningful educational benefits for the 2019-2020 school year, rendering it an appropriate placement.

The uncontroverted testimony from the Student’s teachers and evidence offered demonstrated that provides an education with supports attuned to the Student’s particular strengths, deficits, and abilities with respect to his academic needs. Additionally, 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.

The record establishes that:

(1) the DOE failed to offer a FAPE to

(2) the unilateral placement by the Parent was appropriate; wherein was making progress and that

(3) the equities weigh in favor the Parent

ORDER

I order that the DOE:

1. Reimburse the sum of $68,550.00 to the Parent for payments made to for the 2019-2020 school year to the School.

That payment shall made within 30 days of receipt of a paid invoice in a form satisfactory to the DOE. Dated: December 11, 2020

Gary D. Peters, Esq.

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.