NY IHO #203893: Impartial Hearing...

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10/30/2011FINDINGS OF FACT AND DECISION

CASE NUMBER: NYC: 203893

FINDINGS OF FACT AND DECISION

Case Number: 203893

Student’s Name: [redacted] (“Student”)

Date of Birth: [redacted]

School District: [redacted]

Hearing Requested by: [redacted] (“Parent(s)”)

Request Date/Date Complaint Filed: 11/12/2020

Date(s) of Hearing: 01/27/2022

06/01/2022

06/15/2022

07/19/2022

08/10/2022

10/25/2022

11/30/2222

Actual Record Closed Date: 01/12/2023

Date of Decision: 01/20/2023

Date of Distribution if Different than Decision Date: Same

Hearing Officer: Andrea R. Cohen, Esq.

Evidence

NYC DOE IHO Andrea Cohen

DOE DISCLOSURE

Date

Document Description

Page Count

03/05/2019

Individual Education Plan (IEP)

03/05/2019

IEP Attendance Page

08/07/2019

PWN/School Location Letter

03/05/2019

IEP Meeting Minutes

02/13/2019

Classroom Observation

Feb. 2019

Speech Progress Report

Feb. 2019

Counseling Progress Report

Feb. 2019

OT Progress Report

Feb. 2019

Teacher’s Progress Report

PARENT DISCLOSURE

IHO EXHIBITS

None

NEW YORK CITY DEPARTMENT OF EDUCATION

IMPARTIAL HEARING OFFICE

In the matter of

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

Petitioners,

- against –

New York City Department of Education

Respondent.

IHO

Final Decision and Order

Andrea R. Cohen

Impartial Hearing Officer

Greetings:

JURISDICTION

This Final Decision And Order in the matter of [redacted] (“Student”) by and through his Parents against the New York City Department of Education 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.

• INTRODUCTION AND PROCEDURAL HISTORY
• INTRODUCTION

This matter was commenced on behalf of Student, a student with a disability, by and through his Parents, on 11/12/2020 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.” The New York City Department of Education will be referred to “Respondent,” “District,” or “DOE”.

Petitioner alleges that for the 2019/2020 school year, the DOE failed to provide Student with a FAPE; that because of this failure, Parent enrolled Student in [redacted] (“Private School”) and that Private School provided Student with an appropriate education for Student. Parent seeks an award of reimbursement/direct payment of Student’s tuition and Student’s transportation costs relating to Student’s attendance at Private School.

DOE alleges that it offered a FAPE for Student for the 2019/2020 school year and that Private School did not provide Student with an appropriate education. The DOE seeks an order dismissing Petitioners’ claims and denying Petitioners’ remedy request.

PROCEDURAL HISTORY

Petitioners filed their complaint on 11/12/2020. This Hearing Officer was appointed to preside over this case on 10/22/2021.

The matter was heard on: 01/27/2022; 06/01/2022; 06/15/2022; 07/19/2022; 08/10/2022; 10/25/2022; 11/30/2222. It was a closed hearing.

Petitioners were represented by [redacted]. Petitioners entered exhibits A-S into evidence. Additionally, Petitioner’s produced two witnesses, [redacted] (“Parent”) and [redacted], Special Education Director at Private School, (“Director”).

The DOE was represented by DOE CSE [redacted] Hearing Representative [redacted]. DOE entered Exhibits 1-9. into evidence. Additionally, the DOE produced one witness, [redacted]

, the DOE Special Education Teacher and IEP Representative (“DOE IEP Rep”).

The record was closed on 01/12/2023

• Issues

Whether or not, for the 2019/2020 school year:

• The DOE offered Student a FAPE;
• Private School provided an appropriate education to Student;
• Petitioners are to be granted an award of reimbursement/direct payment of Student’s tuition and Student’s transportation costs relating to Student’s attendance at Private School;
• Equitable considerations support a reduction of any remedy awarded.
• 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]

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).

A procedural violation alone without a showing that the child’s education was substantively affected, does not establish a failure to provide a FAPE. ^[15]

In matters alleging a procedural violation, an IDEA claim is viable only if those procedural violations affected the student's substantive rights.^[16]

A hearing officer may find that a child did not receive a FAPE only if the procedural inadequacies--

(i) Impeded the child’s right to a FAPE;

(ii) Significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provision of a FAPE to the parent’s child; or

(iii)Caused a deprivation of educational benefit. ^[17]

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. ^[18]

• 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.^[19]

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. ^[20] 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. ^[21]

As noted above, 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. ^[22] 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. ^[23]

A reevaluation must occur at least once every three years, unless the parent and the LEA agree that a reevaluation is unnecessary. ^[24] A reevaluation of a child with a disability must occur when conditions warrant or if the parent or teacher requests a reevaluation. ^[25]

The IDEA mandates that an IEP be based on the results of the most recent evaluation of a student.^[27]

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 LEA 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)

Under federal and state regulations, if a parent requests an IEE at public expense because the parent disagrees with the school district’s evaluation, the school district must, without unnecessary delay, either (1) file a due process complaint to request a hearing to show that its evaluation is appropriate or (2) ensure that the requested IEE is provided at public expense, unless the district demonstrates at an impartial hearing that the evaluation obtained by the Parent did not meet the district’s criteria.^[28] Where the DOE fails to take any action, the parent has the right to seek reimbursement for the requested evaluations. ^[29]

A student is entitled to only one independent educational evaluation at public expense each time the DOE conducts an evaluation with which the family disagrees. ^[30]

• FAPE - RELATED SERVICES

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.” ^[31] The FAPE providing this individualization must also conform to an individualized education program (“IEP”). ^[32]

• RELATED SERVICES: TRANSPORTATION

Appropriate transportation can be an essential element of an IEP. The Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400- 1482, sets forth a broad spectrum of services and as well as a definition of Related Services, specifically including transportation:

• Under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400- 1482, related services are defined as:

20 U.S.C. § 1401(26) Related services (A) In general The term “related services” means transportation, ….

• 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.” ^[33] 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. ^[34]

“In enacting the IDEA, Congress did not intend to create a right without a remedy.” ^[35] “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.’” ^[36]

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.” ^[37] 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. ^[38]

• REMEDIES - 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. ^[39]

Parents seeking reimbursement “bear the burden of demonstrating that their private placement was appropriate.” ^[40]

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,” ^[41] i.e., whether it provides ‘education instruction specifically designed to meet the unique needs of a handicapped child.’” ^[42] 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. ^[43]

• REMEDIES - RELATED SERVICES

The Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400- 1482, sets forth a broad spectrum of services and as well as a definition of Related Services, including transportation:

20 U.S.C. § 1401(26)

Related services (A) In general The term “related services” means transportation, and such developmental, corrective, and other supportive services … as may be required to assist a child with a disability to benefit from special education ….

EQUITABLE CONSIDERATIONS

To prevail on a claim for tuition reimbursement, “equitable considerations [must] support the parents’ claims.” Burlington, 471 U.S. at 370, 374; Carter, 510 U.S. at 16. Tuition reimbursement may be “reduced or denied... upon a judicial finding of unreasonableness with respect to actions taken by the parents.” 20 U.S.C. § 1412(a)(10)(c)(iii)(III).

Case law in New York has applied a balancing of the equities in terms of reducing or eliminating an award in cases of net unreasonable parental conduct.^[44]

The IDEA provides that the private school costs may be reduced or denied if (1) at the most recent IEP meeting, the parents did not inform the District that they rejected the District’s proposed IEP and intended to enroll their child in a private program, (2) did not provide notice to the District at least 10 business days before removing their child from the public school that they disagreed with the IEP and intended to place their child privately, (3) if the District asked the parents to evaluate during the “notice period” and the Parents’ refused or (4) if the Court finds that the parents acted unreasonably in the process. 20 U.S.C. 1412(a)(10)(C)); 34 CFR 300.148[d]. See also Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 246– 47, 129 S. Ct. 2484, 2496, 174 L. Ed. 2d 168 (2009) (finding “[C]ourts retain discretion to reduce the amount of a reimbursement award if the equities so warrant—for instance, if the parents failed to give the school district adequate notice of their intent to enroll the child in private school.”) “Important to the equitable consideration is whether the parents obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA.” C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 840 (2d Cir. 2014). The Second Circuit has also found, “in making that equitable determination, the district court may consider many factors, including, inter alia, whether [parent’s] unilateral withdrawal of her child from the public school was justified, whether [parent’s] provided the [the district] with adequate notice of the withdrawal, whether the amount of private-school tuition was reasonable, whether [parent] should have availed herself of need-based scholarships or other financial aid from the private school, and whether there was any fraud or collusion in generating (or inflating) the tuition to be charged to the [district], or whether the arrangement with the school was fraudulent or collusive in any other respect.” E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014).

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

Background

As noted in the 2019 IEP, (DOE EX. 1), Student was classified with Autism. (Ex. 1, p.1). He was diagnosed by neurologists with an Autism Spectrum Disorder and ADHD. (Ex. 1, p. 4).

This dispute relates to the DOE’s recommended placement for the 2019/2020 school year.

Student was attending 3rd grade at Private School, when, in March 2019, the DOE developed an IEP for Student, (the “2019 IEP”), to be implemented on 09/04/2019, when Student was to commence 4th grade. (DOE Ex. 1). The DOE recommended placement in. a 4th grade general education ICT class, a placement with which Parent disagreed.

FAPE

To support its IEP, the DOE produced its 2019 IEP and its Classroom Observation Report as well as several evaluations conducted by Private School. It also produced as witness the DOE IEP Rep. who conducted the Classroom Observation and attended the March 2019 IEP meeting. (Ex. 1, p.19). Additionally, the DOE produced a witness, the DOE Special Education Teacher and IEP Representative, to testify on its behalf. (“DOE IEP Rep”).

The DOE’s witness testified on 01/272022. Her testimony was recorded and is set forth in the transcript commencing at TR. 74). Her testimony as to her education and professional experience showed her to have the appropriate expertise and competency for testifying in this matter. DOE IEP Rep testified credibly and knowledgeably as to her familiarity with Student, the program offered at Private School, and the content of the IEP and evaluations. DOE IEP Rep testified that she had conducted the Classroom Observation and participated in Student’s IEP meeting. DOE IEP Rep was responsive to questions and able to provide additional details and clarification when asked.

The IEP, DOE Exhibit 1, provides, in the opening paragraph of the PLOP section, that Student’s level of knowledge in academics, ADL, adaptive behavior, and expected rate of progress are within age and grade level. (Ex. 1, p. 3). However, the information and goals set forth in the rest of the 2019 IEP echo those set forth in the Private School reports, and do not show Student to be functioning within age and grade level. As also set forth in the March 2019 IEP, Student was in 3rd grade and was functioning at a 2nd grade level in reading and at a 3rd grade level in math. (Ex. 1, p. 1, 17). He was able to answer wh-questions on a simple paragraph, could identify the main idea and characters in a very short paragraph, and could create a simple sentence using a given word. He was able to follow single step directions and was working on following two step directions given prompts and a single model. (Ex. 1, p. 3). Student was able to add and subtract multi digit numbers and could complete addition examples with up to three digits. (Id.) Student had difficulty sitting quietly for any period of time, moved constantly, kicking his chair legs, wriggling in his seat, putting his fingers in his mouth, and playing with his fingers or any piece of paper, tape or other object he finds. (Id.) His OT provider reported that Student was “able to initiate and complete tasks with moderate verbal prompts 50% of the time and could dress and undress with moderate verbal cues for redirection. (Ex. 1, p. 4). The OT also noted that Student presents with decreased attention span and focusing to tasks, following 1-2 step directions consistently, transitioning/following routines, poor body awareness/motor planning/hyper-tendencies, and readiness to learn/task participation. (Id.) As to his social/emotional functioning, Student preferred to interact with younger children and did so in a bossy and manipulative fashion. (Ex. 1, p. 4)

The IEP set forth goals for the end of the 2019/2022 school year/4th grade (Ex. 1, p. 7-11), which included:

• Student will follow multistep directions given a model and visual cues 80% of the time;
• Language Arts goals: Student will:

-- answer Wh- and Yes/No questions appropriately and stay on topic during conversations

-- Write a 5-sentence coherent paragraph

-- Recall 3 details of a story read by teacher, recall the main idea of a story, answer wh-questions;

-- Develop phonic/decoding skills and increase his sight vocabulary by 50 words.

• Math goals: Student will:

-- Add 2- and 3-digit numbers; improve math problem solving skills by identifying words that signal addition, subtraction, and multiplication.

In the 2019 IEP, the DOE recommended placement in a general education 4th grade ICT class with several related services. (Ex. 1, p. 11-12). The IEP recommended no testing accommodations. (Ex. 1, p. 14). It also recommended unspecified special transportation accommodations. (Ex. 1, p. 16).

Appropriateness of Private School

Parent of Petitioner appeared and testified on June 1, 2022 (TR 175ff) and on June 15, 2022 (TR 233ff).

Parent also produced Private School Program Director, (“Director”) as a witness. Director appeared and testified on Oct 25, 2022. Her testimony commences on TR 353. Director’s testimony as to her education and professional experience showed her to have the appropriate expertise and competency for testifying in this matter. (TR 353-354). Director testified credibly and knowledgeably as to the educational programs offered at Private School, her familiarity with Student and his records and performance, and her direct contact with his teachers. [redacted] Director was responsive to questions and able to provide additional details and clarification when asked.

Private School was established in 1996 to serve the academic, social, emotional and physical needs of students with special needs from childhood to adolescence. (Ex. B.) Private School provided their staff during the 2019-2020 school year with in-house and off-site workshops. Parent and the teachers and related service providers communicated with each other by phone; Parents are provided with phone numbers for administrator, teachers, and related service providers. They can contact each other as needed and during twice-yearly parent-teacher conferences. (TR 362).

Director provided details to how children are assessed and placed within Private School. TR 376-378). Student presented several behaviors that interfered with his ability to access his education make progress. He had a great deal of difficulty sitting still and focusing, and required prompting to follow one-step directions. He had very weak organizational skills; his belongings would be scattered about, and he was constantly losing things. (TR 357-358).

Student was reading words with short vowels and was starting to master some blends, but not many and not consistently. He was able to answer very simple Wh-questions on maximum one to two sentences that were read to him and, as to those same one to two sentences, he was able to identify a very simple main idea and simple characters. (TR 358).

In math, Student was able to do simple addition and simple subtraction examples. He could tell time in an analog clock to the hour. Student was able to identify all coins, but he only knew the value of a penny and the quarter. (TR 359).

Director testified that Student was a friendly, happy child. However, his friendliness and his social interaction were directed towards children who were younger than himself who he could boss around and manipulate. (TR 356).

For the 2019-2020 school year, Student was placed in an ungraded class with of a total of 6 students within a two-year chronological age span, one teacher and two assistant teachers. His head teacher has a master’s degree in special education and has a New York State license in special education. (TR 355-356, 358).

Director testified as to the progress Student made during the 2019/2020 school year. (TR 360- 362). She testified that Student had made improvements in appropriately interacting with peers of his own age. Additionally, Student was able to focus for longer periods of time which improved his ability to go from following one-step directions to being able to follow two-step directions. This improved his ability to access and benefit from his education. In ESL, Student had mastered long vowels and about 12 to 15 blends and diagraphs. In reading and listening comprehension, he had gained the ability to sequence about three events in a storyline. He had gone from being able to write just letters and words to being able to create simple sentences. In Math, Student learned to complete addition examples with regrouping. He gained the ability to tell time on an analog clock to the half-hour and he learned the value of all coins. (Id.).

Student received speech therapy, occupational therapy, and counseling. (TR 362).

Director testified that she did not believe it appropriate to place Student in a 4th grade general education ICT class because, inter alia, of its size and staff to student ratio and because this Student’s required a BIP to address the behaviors that were interfering with his education.^[45] Director testified that Student was not ready for mainstreaming because he did not have the skills to interact with peers; that he needed much instruction in peer interaction before he would benefit from full mainstream interaction. (TR 382).

Parent testified that she believed Student’s reading level had been lower than 2nd grade since he could not read his sister’s 1st grade reading material. (TR 261, 262). Parent testified that at Private School, Student was making progress, which had not been the case in prior placements. (TR 241). She could see improvements in his handwriting, in his reading, and the way he approached other children. (TR 242).

Equitable Considerations

There are no allegations and no evidence suggesting that Parent was anything other than cooperative.

• CONCLUSIONS of law and Discussion
• For the 2019/2020 school year, DOE failed to provide Petitioner with a FAPE in that the DOE failed to provide an appropriate placement and appropriate services to Petitioner.

As noted above, the DOE bore the burden of production and persuasion to establish that it provided the Student with a FAPE for the school year at issue. ^[46] A student is provided a FAPE when the board of education provides an IEP that is: inter alia, “reasonably calculated to enable the child to receive educational benefits.^[47] 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 under a proposed plan. ^[48]

The objective evidence here does not show the 2019 IEP to be reasonably calculated to enable this Student to access his education and make progress appropriate in light of his circumstances. Specifically, the evidence describes Student as one who is still developing the academic, behavioral, and social emotional skills required to access the 2nd - 3rd grade curriculum. He struggles in all areas and needs support to learn to become a learner.

The DOE recommended Student be placed in a 4th grade ICT general education class. Such a class has 25-30 students, up to 12 of whom have IEP’s, with a general education and a special education teacher. The 4th grade common core curriculum is presented at general education pace. The Students with IEP’s are expected to be able to access and benefit from that education with the assistance of the special education teacher. The DOE was to show it to be likely Student will be able to access and benefit from a fourth grade curriculum presented at a general education pace, and, by the end of the 2019/2020 school year be ready for 5th grade. However, the DOE’s own evidence shows that Student has not yet mastered 3rd grade skills. Student struggled with following 2-step instructions; he required prompting to get dressed; and had difficulty in math word problems. He was at least a grade behind in reading skills: he struggled with Wh-questions, sight vocabulary, and discerning the main idea from a story of more than one short paragraph.

Additionally, and as noted in the IEP, Student has difficulty sitting quietly for any period of time, is constantly in motion and is easily distracted. Accordingly, as also noted in the IEP, Student requires moderate to maximum assistance (prompting, scaffolding, repetition) in maintaining attention and following directions in social/emotional and ADL skills as well as in academic areas. It is unlikely that this Student’s needs would be appropriately addressed in a 4th grade general education class of 25-30 children, even with the additional teacher.

Finally, while the annual goals set forth in the 2019 IEP are reasonable goals for this Student, they fall short of the skill level Student must achieve by the end of 4th grade to be able to access and benefit from a 5th grade curriculum.

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.” ^[49] The DOE’s evidence does not satisfy its burden to show this Student would be able to access and benefit from the 4th grade general education provided in an ICT class.

• Private School is an appropriate placement for Petitioner.

I find the program developed by Private School for Student and provided to Student to be appropriate: the program has enabled this Student with a disability to access and benefit from his education.

I find transportation to and from Private School to be a related service necessary to enable student to access and take advantage of his education at Private School.

The recommendations made by the DOE mirror the education provided by Private School. There seems to be no real dispute as to the education and services needed and the goals to be obtained, but for Student’s need of a BIP. These needs would not be met in a 4th grade ICT class. Petitioners have shown that the accommodations, adaptations, and goals needed were provided by Private School and that Student was thereby enabled to access and benefit from his education.

• Equitable considerations support a full award of remedies sought.

Parent has been cooperative in all dealings with the DOE. There is nothing in the record that calls for a reduction of any remedy awarded. Accordingly, Parent is entitled to a full award of remedies sought.

• FINAL ORDER:

Upon consideration of the Findings noted above:

The DOE is Ordered to reimburse Parent for all tuition costs incurred in association with Student’s placement in Private School 2019/2020 school year and/or to make direct payment to Private School for any such tuition costs that remain outstanding or are incurred for the 2019/2020 school year.

The DOE is Ordered to reimburse Parent for all Student’s transportation costs incurred in association with Student’s transportation to and from Private School for the 2019/2020 school year and/or to make direct payment to transportation provider for any such costs that remain outstanding or are incurred for the 2020/2021 school year.

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

SO ORDERED

This 20th day of January 2023

By: ____________________________________

Impartial 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

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] See, e.g., A.C. v. Bd. of Educ., 553 F.3d 165 (2d Cir. 2009) (the failure to complete an evaluation in a timely manner did not result in substantive harm to the child).

[16] Lesesne v. District of Columbia, 447 F.3d 828, 834 (D.C. Cir. 2006) (emphasis in original; internal citations omitted).

[17] C.F.R. § 300.513 (a)(2).

[18] C.F.R. § 300.324 (b)(1).

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

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

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

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

[24] 34 C.F.R. § 300.303(b)(2); 8 NYCRR §200.4(b)(4).

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

[26] C.F.R. § 300.324(b)(1)(i); 8 NYCRR § 200.4(f); 34 C.F.R. § 300.324(b)(1)(ii); 8 NYCRR § 200.4(f)(2).

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

[28] NYCRR 200.5(g); see also 34 C.F.R. § 300.502; 20 U.S. C. § 1415 (b)(1) and (d)(2)(A).

[29] See Evans v. Dist. No. 17 of Douglas County, 841 F.2d 824, 830 (8th Cir. 1988); Bd. of Educ. of Murphysboro Cmty. Unit Sch. Dist. v. Ill. St. Bd. of Educ., 41 F.3d 1162 (7th Cir. 1994); Breanne C. v. Southern York C’nty. Sch. Dist., 732 F.Supp.2d 474, 489 (M.D. Pa. 2010).

[30] C.F.R. § 300.502(b)(5)

[31] U.S.C. § 1400(d)(1)(A).

[32] C.F.R. § 300.320.

[33] U.S.C. § 1415(i)(2)(C)(iii).

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

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

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

[37] (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).

[38] N.Y.C.R.R. § 200.6(j)(iii)(c).

[39] (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]).

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

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

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

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

[44] See, e.g., French v. New York State Educ. Dep’t, 476 F. App’x 468 (2d Cir. 2011); J.G. v. Kiryas Joel Sch. Dist., 777 F. Supp. 2d 606 (S.D.N.Y. 2011); N.Y. SRO Decision No. 11-027 (Apr. 29, 2011).

[45] As noted above, 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. 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.

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

[47] 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).

[48] 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.

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

Impartial Hearing Decision

JURISDICTION

PROCEDURAL HISTORY

Background