New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 544696 - NYC: 201285

FINDINGS OF FACT AND DECISION

Case Number:

201285

Student’s Name:

[STUDENT]

Date of Birth:

Redacted

District:

REDACTED

Hearing Requested By:

Parent

Date of Hearing:

Hearings: January 4, 2022

Actual Record Closed Date:

January 24, 2022

Hearing Officer:

Andrea Cohen, Esq

EXHIBITS

DOE DISCLOSURE DISCLOSURE

DOE DISCLOSURE DISCLOSURE

redacted

PETITIONER’S DISCLOSURE DISCLOSURE

PETITIONER’S DISCLOSURE DISCLOSURE redacted

NEW YORK CITYL HEARING OFFICE

In the matter of

[Student]. a minor, by and through the Student’s Parents,

Petitioners,

- against –

New York City Department of Education

Respondent.

IHO Case No.: 201285

Final Decision and Order

Andrea R. Cohen

Impartial Hearing Officer

Greetings:

This Final Decision And Order in the matter of [Redacted] (“Student”) by and through his Parents against the New York City Department of Education (“Respondent” or “DOE”) is rendered upon consideration of Petitioner’s Due Process Complaint (“Complaint”); prior proceedings in this matter and the federal Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.

Jurisdiction is based on the state and federal statutes cited above.

• • Procedural History and Background This matter was commenced on behalf of Student, a student with a disability, by and through his Parents, on September 9, 2020 by filing the Compliant against the DOE pursuant to the IDEA and New York Law. Student and his Parents will be referred to collectively as “Petitioners.” This Hearing Officer was appointed to preside over this case a year later, on September 21, 2021.

On September 30, 2021, a Pre-Hearing Conference (“PHC”) was conducted by telephone. The matter was additionally heard on 11/09/2021 and 01/04/2022.

All hearings were conducted remotely pursuant to Covid-19 protocols.

Neither party submitted final briefs.

During the November 9, 2022 hearing, the Parties agreed they would be prepared to present their cases on January 4, 2022 to commence at 11:00am. Notice of the January 4, 2022 hearing was sent to the parties on November 10, 2022, and again, on November 22, 2022. The Parties timely exchanged disclosure.

Hearing commenced at 11:00am on January 4, 2022. The DOE advised its witnesses were not available and requested an adjournment. Petitioners objected to an adjournment, noting, inter alia, that the matter had been filed over a year ago, that the school year at issue 2020/2021 had long ended, that the DOE had paid the tuition under pendency except for a remaining tuition balance of slightly over $550 and that by this action, Petitioners sought payment of that remaining balance. Additionally, Petitioners advised that they had ensured that Petitioners’ two witnesses had made themselves available to testify were ready to do so (TR. 35-38). In light of these objections, I denied the DOE’s request for an adjournment (TR. 38).

• • Petitioners’ Position and Relief Sought Parent asserts that, for the 2020/2021 school year, parent never received an IEP or location letter, that she unilaterally re-enrolled student at [redacted] (“Private School”) and that she filed this complaint seeking tuition reimbursement. Parent asserts that that all but approximately $566 of the tuition for the 2020/2021 school year had been paid by the DOE under pendency, pursuant to a 2018 FOFD.

Petitioners seek a finding that for the 2020/2021 the DOE failed to provide Student with a FAPE for the 2020/2021 school year, and that Private School provided Student with an appropriate education Private School. Petitioners seek an Order directing the DOE to pay the remaining tuition balance to Private School.

• • The Doe’s Position and Relief Sought The District asserted that, for the 2020/2021 school year, it issued and sent to parent an IEP and a school location letter; that the IEP recommended student be placed in an ICT class; that ICT placement was appropriate; and that the school location letter identified a school that could deliver the ICT services to Petitioner.

The DOE seeks an Order denying Petitioners’ request for reimbursement.

• • Issues

Whether or not, for the 2020/2021 school year:

• • Petitioner received an IEP and school location letter for the 2020/2021 school year;
• • The DOE IEP provided Student with a FAPE;
• • Private School provided Student with an appropriate education
• • Equitable considerations support a reduction of any remedy awarded.
• • Witnesses

DOE

None

PETITIONER

[Name redacted], “Head/Director”, M.Ed. - Head of School at Private School and the Director of its [Special Ed. Program] (“Head/Director”) since 2007. Head/Director testified by affidavit dated January 3, 2022 (Ex. L), affirmed to be true during her telephone testimony of January 4, 2022. Her telephone testimony was recorded and is set forth in the transcript commencing on page 77 (“TR 77”). [Redacted] testimony as to her education and professional experience showed her to have the appropriate expertise and competency for testifying in this matter (Ex. L, para’s. 5-7). She testified credibly and knowledgeably as to Private School’s programs ( Ex. L, para’s. 8-15) and as to Student, his particular school program and performance, and his records. (Ex. L, para’s. 16-34). Additionally, Head/Director was responsive to questions and able to provide additional details and clarification when asked.

[Name redacted], “Parent.” Parent testified by telephone on January 4, 2022. Her testimony was recorded and is set forth in the transcript commencing on TR 99. Ms. Parent testified credibly and knowledgeably as to her familiarity with Petitioner and his performance in school; her participation in his education; and her familiarity with the education provided by Private School.

• • exhibits

DOE

Exhibits 1-6, entered into evidence on January 4, 2022.

Petitioner

Exhibits A-N, entered into evidence on January 4, 2022.

• • Statement of Law
• • FAPE
• • FAPE - GENERALLY

The Individuals with Disabilities Education Act (“IDEA”) provides that a child with a disability is entitled to a free and appropriate public education (“FAPE”), and ensures that included special education and related services are designed to meet “their unique needs to prepare the child for further education, employment, and independent living.” ^[1] The FAPE providing this individualization must also conform to an individualized education program (“IEP”). ^[2]

The DOE bore the burden of production and persuasion to establish that it provided the Student with a FAPE for all of the school years at issue, as well as all other issues alleged in the DPC, except for the appropriateness of the private school, to which the Parent bore the burden of proof. ^[3]

A student is provided a FAPE when (a) the board of education complies with the IDEA’s procedural requirements, and (b) provides an IEP that is: “’likely to produce progress, not regression’ and if the IEP affords the student with an opportunity greater than ‘mere trivial advancement.’” ^[4]; is substantively appropriate – i.e., it is reasonably calculated to enable the child to receive educational benefits.^[5]

A district court in evaluating whether a district has met its obligation, must examine the record for “objective evidence” of whether a child is likely to progress or regress under a proposed plan. ^[6]

Under the IDEA, a district may be required to consider special factors in the development of a student’s IEP, including whether behavior impedes his learning or that of others. ^[7] Where such behavior may impede learning, the district may consider having a functional behavior assessment (“FBA”) conducted and a behavioral intervention plan (“BIP”) developed for a student. ^[8]

The IEP must be reviewed periodically, but not less than annually, to determine whether the annual goals for the child are being achieved. ^[9] The IEP must be revised to address: 1) any lack of expected progress toward the annual goals and in the general education curriculum, if appropriate; 2) the results of any reevaluation; 3) information about the child provided to, or by, the parents; the child’s anticipated needs; or other matters. ^[10]

It is the DOE’s statutory obligation to provide appropriate placement and services recommendations in the IEP. Moreover, it is the DOE’s responsibility to procure the recommended services for the student and offer an actual spot in a specified classroom. ^[11]

The Supreme Court has found that, while deference is due to decisions of school authorities, “A reviewing court may fairly expect those authorities to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.” ^[12]

An IEP, on its own, does not establish that a FAPE has been offered to a student; instead, “testimony may be received that explains or justifies the services listed in the IEP.” ^[13] A district does not meet its burden of proof to demonstrate that sufficient evaluative material was relied upon in creating the student’s educational program without testimony presented to that effect. ^[14]

Reliance on the views of DOE witness, which were against the clear consensus of the substance of the evaluative materials present at the CSE meeting and the views of student’s evaluators and educational instructors, was error. See A.M. v. New York City Department of Education, 845 F.3d 523 (2d Cir. 2017). Similarly, reliance upon testimony of one DOE representative, who never met student, over evidence by student’s teachers and therapists, “flies in the face of reason” and did not result in a well-reasoned decision by SRO. S.B. v. New York City Department of Education, 117 F. Supp. 3d 355 (S.D.N.Y. 2015). See, also: W.S., individually and on behalf of A.S., v. New York City Dep’t of Educ., 188 F. Supp.3d 293 (S.D.N.Y. 2016) (placement offered by the DOE did not bear a reasonable relation to the needs of student where placement was based on opinion of a DOE representative who had no firsthand knowledge of the student).

The LEA must ensure that the IEP team revises the IEP, as appropriate, to address any lack of expected progress toward the annual goals and to address the results of any reevaluation or information about the child provided to, or by, the parents. ^[15]

• • FAPE - EVALUATIONS

An evaluation means procedures used in accordance with 34 C.F.R. §§ 300.304 through 300.311 to determine whether a child has a disability and the nature and extent of the special education and related services that the child needs.^[16]

In conducting the evaluation, the district must use a variety of tools and strategies to gather relevant functional, developmental, and academic information about the child, including information provided by the parent, to determine whether the child is eligible and, if so, the content of the child’s IEP. ^[17] The evaluation must be sufficiently comprehensive to identify all of the child’s special education and related services needs, whether or not commonly linked to the disability category. ^[18]

The IDEA mandates that an IEP be based on the results of the most recent evaluation of a student.^[19]

If the parent obtains an independent educational evaluation (“IEE”) at public expense, or shares with the public agency an evaluation obtained at private expense, the evaluation (1) must be considered by the public agency, if it meets agency criteria, in any decision made with respect to the provision of FAPE to the child; and (2) may be presented by any party as evidence at a hearing on a due process complaint under subpart E of this part regarding that child. 34 C.F.R. § 300.502(c)

A reevaluation must occur at least once every three years, unless the parent and the LEA agree that a reevaluation is unnecessary. ^[20] A reevaluation of a child with a disability must occur when conditions warrant or if the parent or teacher requests a reevaluation. ^[21]

The LEA must ensure that the IEP team revises the IEP, as appropriate, to address any lack of expected progress toward the annual goals and to address the results of any reevaluation or information about the child provided to, or by, the parents. (See footnote 14, above)

• • RELATED SERVICES - TRANSPORTATION

Appropriate transportation can be an essential element of an IEP. ^[22] J.L. v. New York City Department of Education, 324 F. Supp. 3d 455, 72 IDELR 237 (S.D.N.Y. Aug. 28, 2018), is an opinion in the combined cases of three unrelated children with severe disabilities who alleged a systemic breakdown in the defendant’s provision of services to medically fragile children. The parents maintained that they could not obtain nursing services on the school bus and in school, and that they could not obtain wheelchair-accommodating bus transportation for the children, nor porter services to get the children up and down the stairs of their walk-up apartment buildings to and from the bus, causing the children to miss significant amounts of school. The parents said that in other situations, the services were on the IEPs but were not provided;, that the provision of services depended on efforts by the parents to coordinate the arrangements; and that personnel and services frequently failed to materialize. The court denied a DOE motion to dismiss the claims, holding that the allegations, if proven, would establish a denial of appropriate education due to failure to implement substantial or significant portions of IEPs.

In J.L. on behalf of J.P., et al v. New York City Department of Education, 17-cv-1750, the Court noted that the DOE’s failure to implement IEP sanctioned transportation services “prevented Plaintiff’s children from attending school for several years, essentially rendering the IEP useless (emphasis added).” In Ross v. Disare, 500 F. Supp. 928, 934 (S.D.N.Y. 1977), the Court noted that “interruption of a child’s schooling causing a hiatus not only in the student’s education but also in other social and psychological developmental processes that take place during the child’s schooling, raises a strong possibility of irreparable injury ….”

• • PENDENCY

Under the provisions of 20 U.S.C. § 1415(j), “during the pendency of any proceedings conducted pursuant to this section, unless the agency and the parents otherwise agree, the child shall remain in the then-current educational placement of such child.” 34 C.F.R. §300.518(a). In addition, New York State Regulations at 8 NYCRR 200.5 (m) provides that: (1) Except as otherwise provided in paragraph (2) of this subdivision and section 200.16 of this Part and Part 201 of this Title, during the pendency of any proceedings conducted pursuant to subdivision (j) or (k) of this section, unless the local board of education and the parents otherwise agree, the student shall remain in the then current placement of such student.

Additionally, as per the New York State Review Officer in an Application of a Child with a Disability, Appeal No. 02-068: Pendency has the effect of an automatic injunction, which is imposed without regard to such factors as irreparable harm, likelihood of success on the merits, and a balancing of the hardships (Zvi D. v. Ambach, 694 F.2d 904 [2d Cir. 1982]; Drinker v. Colonial School Dist., 78 F.3d 859 [3d Cir. 1996]). The purpose of the pendency provision is to provide stability and consistency in the education of a child with a disability (Honig v. Doe, 484 U.S. 305 [1987]).

The Second Circuit has held in Zvi v. Ambach, 694 F.2d 904, 906 (2d Cir. 1982) that "the stay-put provision imposes an absolute rule in favor of the status quo.” This rule applies from the time that the dispute arises until the dispute is resolved. Thus, the Act ensures that a school district cannot unilaterally decide to change a child’s IEP during a dispute under the IDEA. Although the term “current educational placement” is not defined in the IDEA statute or regulations, the Supreme Court has described the language of section 1415(e) (3) as “unequivocal,” in that it states plainly that “the child shall remain in the then current educational placement.” Honig v. Doe, 484 U.S. 305, 323, 108 s. Ct 592, 604 (1988).

Other federal courts have ruled that for purposes of stay-put a child’s “current educational placement” is generally “the placement to which the agency and parents consented before the parents requested a due process hearing.” Warton v. New Fairfield School district, 33 IDELR 269 (D.Conn. 2000), citing Zvi E. v. Ambach, 694 F.2d at 906. The relevant inquiry thus becomes the identification of the term "current educational placement,” of the handicapped student. As the Court of Appeals for the Second Circuit explained: I]mplicit in the maintenance of the status quo is the requirement that a school district continue to finance an educational placement made by the agency and consented to by the parent before the parent requested a due process hearing. To cut off public funds would amount to a unilateral change in placement, prohibited by the Act. “Zvi v. Ambach,” 694 F.2d at 906.

The purpose of stay-put is to prevent school officials from unilaterally trying to change a child’s placement, so the “current placement” must be the one that was previously implemented in the last agreed upon IEP. The Court held that placement does not refer to an unimplemented IEP, and had congress intended a prospective IEP to govern stay-put, it could have employed the term “IEP” instead of “placement.” Since it did not, the term “placement” must be given its plain meaning: it refers to the operative placement actually functioning at the time the dispute first arises. Thomas v. Cincinnati Board of Education, 918 F.2d 618 (6th Cir. 1990).

The Second Circuit has recently stated that: Although the IDEA does not define, and our Circuit has not previously considered the meaning of, the term "then-current educational placement," our sister circuits have interpreted the term to mean: (1) "typically the placement described in the child's most recently implemented IEP," (Johnson v. Special Educ. Hearing Office, 287 F.3d 1176, 1180 [9th Cir. 2002]); (2) "the operative placement actually functioning at the time... when the stay put provision of the IDEA was invoked," (Drinker v. Colonial Sch. Dist., 78 F.3d 859, 867 [3d Cir. 1996]); and (3) "[the placement at the time of] the previously implemented IEP," (Thomas v. Cincinnati Bd. of Educ., 918 F.2d 618, 625 [6th Cir. 1990]). (Mackey, 386 F.3d at 163; see O'Shea, 2005 WL 154201 at n.10).

Furthermore, in an Application of the Bd. of Educ., Appeal No. 05-006 held that: As far as the child's pendency placement is concerned, however, the inquiry rests largely on what was the last mutually agreed upon placement that the child had been in at the time of the due process request (Letter to Baugh, 211 IDELR 481 [OSEP 1987]; Letter to Winston, 213 IDELR 102 [OSEP 1987]; see Johnson, 287 F.3d at 1180; Thomas, 918 F.2d at 625; Susquenita, 96 F.3d at 83 ["last functioning IEP"]; Drinker, 78 F.3d at 867 [same]; Cosgrove, 175 F.Supp.2d at 384; Binghamton City Sch. Dist. v. Borgna, 1991 WL 29985 at n.6 [N.D.N.Y. 1991]; see, e.g., Application of a Child with a Disability, Appeal No. 00-019; Application of a Child with a Disability, Appeal No. 99-30; see also Mackey, 386 F.3d at 163.

• • RELIEF/REMEDIES
• • REMEDIES - GENERALLY

In any action brought under the IDEA, the trier of fact “shall grant such relief as the court determines is appropriate.” ^[23] The relief must be appropriate in light of the purpose of the Act. A court may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies. ^[24]

“In enacting the IDEA, Congress did not intend to create a right without a remedy.” ^[25] “Courts retain broad discretion in fashioning an award, restrained only by the Supreme Court’s directive that ‘the relief is to be “appropriate” in light of the purpose of the Act.’” ^[26]

OSEP advises that, “based upon the facts and circumstances of each individual case, an impartial hearing officer has the authority to grant any relief he/she deems necessary, inclusive of compensatory education, to ensure that a child receives the FAPE to which he/she is entitled.” ^[27] New York law provides that a state-approved nonpublic school is a permissible placement for a school district to make on a student’s IEP upon a showing of, inter alia, detailed evidence of the student's lack of progress in previous less restrictive programs and placements. ^[28]

• • TUITION REIMBURSEMENT

The United States Supreme Court established a three pronged test to determine whether school district may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parent: (1) were the services offered by the board of education inadequate or inappropriate, (2) are the services selected by the parent appropriate, and (3) do equitable considerations support the parent's claim. ^[29]

Parents seeking reimbursement “bear the burden of demonstrating that their private placement was appropriate.” ^[30]

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 (Carter, 510 U.S. at 14). Parents “are not barred from reimbursement where a private school they choose does not meet the IDEA definition of a free appropriate public education.” Frank G., 459 F.3d at 364 (citing 20 U.S.C. § 1401(9)); see also Carter, 510 U.S. at 12-14. An appropriate private placement need not meet state education standards or provide certified special education teachers or prepare its own IEP for the student. (see Frank G., 459 F.3d at 364; Carter, 510 U.S. at 13 (Carter, 510 U.S. 7; Application of the Bd. of Educ., Appeal No. 08-085; Application of the Dep't of Educ., Appeal No. 08-025; Application of the Bd. of Educ., Appeal No. 08-016; Application of the Bd. of Educ., Appeal No. 07-097; Application of a Child with a Disability, Appeal No. 07-038; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-105). See Application of a Student with a Disability, Appeal No. 11-041).

In order to meet this burden, parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G. v. Bd. of Educ., 459 F.3d 356,364 [2d Cir. 2006]).

When determining whether the parents’ unilateral placement is appropriate, “[u]ltimately, the issue turns on” whether that placement is “reasonably calculated to enable the child to receive educational benefit,” ^[31] i.e., whether it provides ‘education instruction specifically designed to meet the unique needs of a handicapped child.’” ^[32] In the Second Circuit, no single factor is dispositive in determining whether parents’ unilateral placement is reasonably calculated to enable the child to receive educational benefits. Rather, the totality of circumstances must be reviewed and assessed in determining whether a placement reasonably serves a child’s individual needs. ^[33]

• • Findings of Facts, Conclusions of law and Discussion The findings and conclusions set forth below are based upon my review and analysis of the testimony and exhibits presented and the relevant law.
• • Background Student is a student who has been determined to be eligible for special education services. For kindergarten (2017/2018) school year), the DOE initially placed Student in an ICT class. In November 2017, the DOE conducted a Psychoeducational Evaluation (DOE Ex.3) at the request of his mother who, along with his ICT teacher, noted Student was having difficulties functioning in a general education class. (Ex.3, p.1). The evaluation included the administration of the Gilliam Autism Rating Scale (GARS-3). The evaluator determined Student to have obtained an Autism index of 89, indicating that it was “Very Likely” Student had an Autism spectrum disorder, that he required “Substantial Support (Severity Level 2) due to a significant amount of autistic traits,” and that he had significant impairment in Social Interaction and Social Communication skills. (Ex 3, p.3). Subsequently, during his kindergarten year, DOE itself transferred Student out of the ICT class and into a special education 12:1:1 class. (Exh. K-1).

For the 2018/ 2019 school year, first grade, Parent unilaterally enrolled student in Private School and sought reimbursement from the DOE, filing Case No.177704. In an Order dated April 3, 2019 (Ex. L), the IHO in Case No.177704 determined that, for the 2018/2019 school year, the DOE had failed to provide Student with a FAPE and that Private School provided an appropriate education to Student, and directed the DOE to cover the tuition costs at Private School. This decision was not appealed.

The Student was re-enrolled at Private School for the 2019/2020 school year, second grade.

The DOE asserts that, for the 2020/2021 school year, third grade, it conducted an IEP meeting and determined an ICT class to be an appropriate placement for Student, and that it timely sent to the Parent an IEP dated 3/19/2020 (Ex. 1); Prior Written Notice, dated 8/24/2020 (Ex. 5); and a School Location Letter dated 8/24/2020 (Ex. 6). The DOE also produced a Psychoeducational Evaluation dated 11/10/2017 (Ex. 3) and a Classroom Observation dated 11/13/2017 (Ex. 4).

Parent asserts that she received none of the above-mentioned documents for the 2020/2021 school year, that she therefore again enrolled Student for third grade at Private School and commenced this action for tuition reimbursement. TR 99-100

This matter was filed in September 2020 and relates to the 2020/2021 school year. The school year at issue ended in June 2021. Another two months passed before it was first was assigned to a Hearing Officer. During the pendency of this action, the DOE continued to pay tuition for Student’s education at Private School pursuant to the 2019 Order. By the end of the school year the DOE had paid all tuition fees but for $566.26 (EX G, Tuition Affidavit). The DOE made no challenge to this remaining balance. Additionally it produced no evidence, testimony or argument to explain why there remains an outstanding balance of tuition.

• • Findings and Discussion The findings and conclusions set forth below are based upon my review and analysis of the testimony and exhibits presented and the relevant law.

I) - I Find the DOE to have failed to provide any defense for its failure to pay the remining tuition balance under pendency.

The purpose of the pendency provision is to provide stability and consistency in the education of a child with a disability (Honig v. Doe, 484 U.S. 305 [1987]). The Second Circuit has held in Zvi v. Ambach, 694 F.2d 904, 906 (2d Cir. 1982) that "the stay-put provision imposes an absolute rule in favor of the status quo.” The DOE accepted this obligation and paid tuition for the 2020/2021 school year except for a small, outstanding balance.

I would have considered any defense the DOE might have presented, but it offered nothing. Accordingly, I find the DOE liable for the remaining outstanding balance of $566.26 under pendency.

II) - I Find the Evidence Insufficient to Show that Petitioner Did Receive an IEP or School Location Letter for the 2019 2020 School Year.

Petitioner testified credibly and knowledgably that, although the DOE had successfully previously communicated with her at her home address and e-mail address, she never received these 2020 placement documents; that she checked her e-mail records and there is no record of receiving these documents from the DOE; and that such communications were disrupted at the time because of the Covid Pandemic. (TR 99-100).

During the hearing, the DOE Representative asserted that she was, at that moment, logged into the DOE’s computer records and that such records showed that the IEP and school location letter had been sent. (TR 47 - 51).

I find the DOE’s argument to be unpersuasive. The DOE failed to include these computer records in its disclosure. Moreover, such records may have shown, at best, that documents had been sent, but provided no information as to whether or not they had been received by Petitioners.

III - I Find The DOE Did Not Provide Support for Its Argument That the IEP It Issued for the 2020/2021 School Year Would Have Provided Student With a FAPE:

To support its argument, the DOE submitted the 2020 IEP at issue, developed during a March 3, 2020 IEP meeting, to be implemented September, 2020 (Ex. 1), and two exhibits, both from November 2017, early in Student’s kindergarten year: a DOE conducted Psychoeducational Evaluation (Ex. 3), and a DOE conducted Classroom Observation (Ex. 4). Exhibits 3, and 4 were prepared two months after the commencement of Student’s placement an ICT General Education kindergarten class (“ICT-Kg”). It is therefore unlikely that these documents were used to support that initial ICT placement. Significantly, sometime after these evaluations were conducted, the DOE itself determined its initial placement of Student in an ICT-Kg was inappropriate and transferred Student into a 12:1:1 special education kindergarten class.

In the 2020 IEP, the CSE identified the evaluation results it reviewed as follows: “According to the last IEP dated 9/5/2019.” (Ex. 1, p. 2). The CSE then set forth information that seems to track the language and results of the 2017 Psychoeducational Evaluation. (Ex. 1, p. 2). I do not see a clear explanation of the CSE’s use of, or disagreement with, this evaluative material, which did not support an ICT placement in Kindergarten, in developing the recommendations set forth in the 2020 IEP for third grade.

The IEP also includes information obtained from his then current, second grade teacher regarding his present levels of performance in the spring of his second grade school year.

There is nothing in any of these documents that supports the recommendation that this Student would be able to access or take advantage of his education in a general education ICT third grade class of 20-30 students. The documents do show Student to exhibit the same behaviors and cognitive challenges noted in the DOE’s 2017 documents that should have alerted the DOE that ICT remained an inappropriate recommendation.

New York law provides that a CSE may consider whether there is a severe discrepancy between achievement and intellectual ability in oral expression, listening comprehension, written expression, basic reading skill, reading fluency skills, reading comprehension, mathematical calculation and/or mathematical problem solving.^[34] The DOE Psychoeducational Evaluation (Ex. 3) shows Student to be in the 90th percentile in letter-word identification; the 70th percentile in passage comprehension; and in the 10th-11th percentile in math skills. Although his test scores suggest he has ELS strengths, his second grade teacher reports in detail that Student is functioning at a low second grade level in multiple ELA skills and that he struggles with a wide variety of language tasks. (Ex. 1, p. 2-4). I find there to be severe discrepancies among Student’s cognitive abilities, his achievements his school performance and behavior.

Under the IDEA, a district may be required to consider special factors in the development of a student’s IEP, including whether behavior impedes his learning or that of others. ^[35] The Class Observation shows Student to have very limited capacity to stay on task and a propensity for leaving his seat and wandering around the classroom. (DOE Ex. 4). This was also reported to the CSE in 2020 by Student’s second grade teacher (IEP Ex. 1, p. 2-6). Moreover, during cross-examination of Private School Head, she characterized this behavior as generally disruptive (TR 87). Student’s second grade teacher reported in detail that Student “frequently gets distracted by his thoughts and requires consistent redirection to complete tasks and engage in activities both individually and in groups” (Ex. 1, p. 3); and that “[h]e has difficulties staying on task and requires constant one to one attention and redirection” (Ex. 1, p.5). His teacher also noted that on a social emotional level, Student was just beginning to control his crying in response to frustration. (Ex. 1, p.5). I find these behaviors to impede Student’s learning and that of others.

“A reviewing court may fairly expect those authorities to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.” ^[36] There is nothing in the record to support the DOE recommendation to move Student from a small integrated class of under ten students, to a general education, third grade ICT class. The DOE here presented no objective evidence to support its assertion that Student was likely to progress under the proposed plan. Indeed, the DOE’s own exhibits showed the placement offered by the DOE did not bear a reasonable relation to the needs of student and therefore failed to provide a FAPE.^[37] I find the facts in this case similar to cases where the court found that such a recommendation “flies in the face of reason.” ^[38]

IV - I Find That Private School is an Appropriate Placement for Petitioner.

I find the program provided by Private School strongly matches Student’s unique needs as shown through the testimony of Head/Director and of Parent, and through documents provided by both parties.

Petitioner’s first witness is the Head of School at Private School and Director of its special education program, [Special Ed. Program] (“Special Ed Program”).

In her Affidavit, Exhibit L, Head/Director provided a general description of the school’s programs as follows:

Approximately 20% of [Private School] students present with learning disabilities, speech and language impairments, school-related and social anxiety disorders, mild developmental delays associated with Autistic Spectrum Disorders and neurological disorders such as ADD or ADHD. One of the primary means through which [Private School] addresses students’ learning differences is [Special Ed. Program] – a fully integrated program providing students with necessary special education and related services within [Private School’s] mainstream environment.

[Special Ed Program] offers daily 1:1 or small group academic remediation where a student is paired with a specialist based upon their personal learning profile. These instructions are provided through a multi-sensory approach, within a structured learning environment in regular classes. In addition to daily academic remediation sessions, all [Special Ed. Program] students receive daily 1:1 or small group tutorials the purpose of which is to assist with homework assignments and preparing for next day classes. [Special Ed. Program] also provides related services of speech and language therapy, school-based counseling, and individual and group social skills training. Testing accommodations such as extended time or separate location, organizational and planning meetings are readily available as well. The principal goal of [Special Ed. Program] is to equip disadvantaged students with skills necessary to access general education curriculum along with their typically developing peers.

Affidavit, Ex. L, para 10, 11.

Head/Director further detailed the school’s individualized reading programs and the multi-sensory approaches it uses to help students with ELA deficits make academic gains and diminish the frequency and negative impact of their behavioral/emotional difficulties. (Ex. L, para.’s 12, 13, 14).

Head/Director knows Student’s prior records through her review of, inter alia, the 2017 Psychoeducational Evaluation Report (Ex. 3); a 2018 Psychoeducational Assessment performed by an independent psychologist, (Pet. Ex. K), his Individualized Education Programs (“IEP”) from the previous school years and his annual progress reports, (Petitioners’ Exhibits H and I). (Aff., Ex. L, Para.17).

Head/Director knows Student through direct contact with him and knows his Private School program and performance upon her reviews of his records and discussions with staff and his with peers. (Ex. L, Para. 16-21).

Head/Director testified that Student’s records showed he had attended kindergarten at a NYC Public School and that, during that school year, the DOE had transferred him out of an ICT kindergarten class into a self-contained special education 12:1:1class. Head/Director testified that the transfer occurred following the 2017 evaluations. (Para 22). She testified that Parent rejected this placement as overly restrictive and, for first grade, unilaterally placed him in Private School in September 2018. (Ex. L. Para. 22). He has attended Private School every subsequent school year and completed third grade in June, 2021 (Ex. L, Para 21).

Head/Director testified that for third grade, Student was enrolled in an integrated class of 7 students with an academic and age range within 18-24 months (Ex. L, Para. 26); that he and one other student were eligible for special education services; and that the other five students were typically developing peers. (Ex. L, Para 26). She testified that Student also participates in mainstreaming when attending classes and activities with up to 15 students, such as Art, Gym, concerts and school trips (if scheduled), other activities and Lunch. (Ex. L, Para 27).

Head/Director described Student’s two daily periods of individualized, 1:1 and small group services Student received through Private School’s Special Ed Program in academic areas and in organization/executive functioning skills (TR 84; Ex. L,, para 28), and in counseling and intensive social skills training (Ex. L,. Para’s. 29, 30). Additionally, Student receives speech and language therapy four times a week, (3X/week individually; 1X/week in a group of 3) (Ex. L, Para. 31).

Head/Director testified that she agreed with the 2018 Psycho Educational Evaluation, Exhibit K, findings that Student is diagnosed with autism spectrum disorder as well as attention deficit and that he demonstrated average level of cognitive ability. (TR 92-93). Further, she agreed with the recommendations in Exhibit K that student be "placed in an inclusion environment with availability of special education teachers who are able to address these social communication difficulties along with ADH symptoms." (TR 92-93). Additionally, this witness agreed that the programs provided by Private School provided exactly the type of education called for (TR. 92-93. Ex. L, Para’s. 32-34)

This witness testified that Student remains a very vulnerable young boy on the autism spectrum who needed and benefited from the small, structured, individualized, integrated learning environment and social environment provided at Private School; that Private School provided Student with a FAPE in the Least Restrictive Environment (Ex. L, Para’s. 32-34). I agree.

I find transportation to and from Private School to be an integral related service to his education plan and, as such, a part of Student’s free and appropriate public education.

IV - I Find the Equities to Favor Petitioner

I find the Petitioners to have acted reasonably and cooperatively and are entitled to the full remedy sought.

ORDER:

In consideration of the FINDINGS above:

The DOE is Ordered to reimburse Parent for all tuition costs incurred, and directly pay Private School any outstanding balances associated with Petitioner’s placement in Private School for the 2020/2021 school year, including, but not limited to the outstanding balance of $566.26.

The DOE is Ordered to reimburse Parent for all costs of student transportation services incurred relating to Student’s attendance at Private School.

The DOE is Ordered, upon receipt of billing statements from Private School and Transportation Providers, or upon receipt of proof of payment by petitioner, to rapidly complete all administrative/bookkeeping procedures and issue such payment and/or reimbursement check.

This is a FINAL ORDER; this matter is resolved and is to be closed.

Dated this 31st day of January 2022

By: Hearing Officer Andrea R. Cohen,

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.

(NYSED 07/09/2020)

Footnotes

[1] U.S.C. § 1400(d)(1)(A).

[2] C.F.R. § 300.320.

[3] N.Y. Educ. Law §4404(1)(c). M.H. v. New York City Dept. of Educ., 685 F.3d 217, 225 (2d. Cir. 2012).

[4] Walczak, 142 F.3d at 130 (quotations omitted). Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 195 (2d Cir. 2005)

[5] Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 (1982); Cerra v. Pawling Cent. Sch. Dist., 427 F.3f 186, 192 (2d Cir. 2005); Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 122 (2d Cir. 1998) (quoting Rowley, 458 U.S. 176, 207).

[6] Cerra v. Pawling, 427 F.3d 186 (2005) at 195, the Second Circuit, citing Walczak, 142 F.3d at 130 and Mrs. B., 103 F.3d at 1121.

[7] See 20 U.S.C. 1414(d)(3)(B)(i).

[8] See 8 NYCRR 200.4(d)(3)(i).

[9] C.F.R. § 300.324(b)(1)(i); 8 NYCRR § 200.4(f).

[10] C.F.R. § 300.324(b)(1)(ii); 8 NYCRR § 200.4(f)(2).

[11] see Educ. Law 3602-c[2][a]). NYSED; State Review Office; March 31, 2014 No. 14-022; Justyn P. Bates, S.R.O.

[12] Endrew F., 137 S. Ct. at 1002.

[13] R.E., 694 F.3d at 185Id. at 185-86.

[14] See L.O. v. New York City Dep’t of Educ., No. 15-1019, 2016 WL 2942301, at *9 (2d Cir. 2016).

[15] C.F.R. § 300.324 (b)(1).

[16] C.F.R. § 300.15; see also 8 NYCRR § 200.1(aa).

[17] C.F.R. §300.304(b)(1); 8 NYCRR §200.4(b)(1).

[18] C.F.R. § 300.304© (6); 8 NYCRR § 200.4(b)(6)(ix).

[19] C.F.R. §§ 300.324(a)(1) and (2); see also 8 NYCRR §§ 200.4(d)(2) and (3).

[20] 34 C.F.R. § 300.303(b)(2); 8 NYCRR §200.4(b)(4).

[21] C.F.R. §300.303(a); 8 NYCRR §200.4(b)(4).

[22] J.L. v. New York City Department of Education, 324 F. Supp. 3d 455, 72 IDELR 237 (S.D.N.Y. Aug. 28, 2018); Ross v. Disare, 500 F. Supp. 928, 934 (S.D.N.Y. 1977),

[23] U.S.C. § 1415(i)(2)(C)(iii).

[24] Doe v. E. Lyme Bd. of Educ., 790 F.3d 440 (2d Cir. 2015) (internal citations omitted).

[25] Streck v. Bd. of Educ. of the E. Greenbush Cent. Sch. Dist., 408 F. App’x 411, 415 (2d Cir. 2010).

[26] L.O. v. New York City Dep’t of Educ., 822 F.3d 95, 125 (2d Cir. 2016).

[27] (Letter to Kohn, 17 IDELR 522 (OSEP 1991). See also Letter to Riffel, 34 IDELR 292 (OSEP 2000) (discussing a hearing officer’s authority to grant compensatory education services).

[28] N.Y.C.R.R. § 200.6(j)(iii)(c).

[29] (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 [1985]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. Sept. 28, 2005]).

[30] (Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105 at 112 [2d Cir. 2007]).

[31] (Frank G., 459 F.3d at 364; see also Gagliardo, 489 F.3d at 112),

[32] (Gagliardo, 489 F.3d at 365).

[33] (Gagliardo, 489 F.3d at 112; Frank G., 459 F.3d at 364-65).

[34] See 8 NYCRR 200.4(j)(4)

[35] See 20 U.S.C. 1414(d)(3)(B)(i).

[36] Endrew F., 137 S. Ct. at 1002.

[37] W.S., individually and on behalf of A.S., v. New York City Dep’t of Educ., 188 F. Supp.3d 293 (S.D.N.Y. 2016)

[38] S.B. v. New York City Department of Education, 117 F. Supp. 3d 355 (S.D.N.Y. 2015). See A.M. v. New York City Department of Education, 845 F.3d 523 (2d Cir. 2017). (For example, I cannot find a logical connection between the two sentences set forth in the 2020 IEP at the bottom of page 7: “Given [Student’s] current academic performance and progress, he is unable to participate in a full-time general education classroom at this time. His learning differences can be best addressed in an Integrated Co-Teaching setting that provides a more specific learning environment, … and more individualized attention and related services.” The DOE first concludes that this Student, who the IEP describes as a student who cannot independently sit still, has achieved low second grade skills and is likely to cry at frustration, cannot function in a full-time general education third grade class of 25 students. I see no logical, consistent or reasonable relationship between this conclusion the DOE’s second conclusion: that the needs of this same Student can be best addressed in a full-time general education third grade ICT class of approximately 25 Students, 8 of whom may have special needs, even with an extra teacher and para.)