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Special Education Law
DECISIONParent PrevailedIHO Case No. 204328

New York City Department of Education, Impartial Hearing Decision

February 2, 2022·Stephanie Seto·New York City Department of Education

NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.

FINDINGS OF FACT AND DECISION

SED ID No. 547833

Student’s Name: REDACTED, (herein “Student”)

Date of Birth: REDACTED

District: REDACTED

Hearing Requested by: REDACTED, (herein “Parent”)

Date of Hearings: December 8, 2020 (Pendency), February 2, 2021, February 25, 2021 (Interim Order IEEs), May 25, 2021 (Status Conference), August 3, 2021 (Status Conference), September 2, 2021 (Status Conference), October 21, 2021 and November 8, 2021

Record Close Date: February 2, 2022

Hearing Officer: Stephanie Seto, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 8, 2020

For Student:

REDACTED, Esq., The Law Offices of REDACTED

For the Department of Education ("District"):

REDACTED, District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 2, 2021

For Student:

REDACTED, Esq., The Law Offices of REDACTED

For the Department of Education ("District"):

REDACTED, District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 25, 2021

For Student:

REDACTED, Esq., The Law Offices of REDACTED

For the Department of Education ("District"):

REDACTED, District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 25, 2021

For Student:

REDACTED, Esq., The Law Offices of REDACTED

For the Department of Education ("District"):

REDACTED, District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 23, 2021

For Student:

REDACTED, Esq., The Law Offices of REDACTED

For the Department of Education ("District"):

REDACTED, District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 2, 2021

For Student:

REDACTED., The Law Offices of REDACTED

REDACTED., Neuropsychologist, REDACTED

REDACTED, MS, CC-SLP, Speech-Pathologist

For the Department of Education ("District"):

REDACTED, District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 8, 2021

For Student:

REDACTED, Esq., The Law Offices REDACTED

REDACTED, Speech-Language Pathologist and Audiologist

For the Department of Education ("District"):

REDACTED, District Representative

INTRODUCTION

On November 23, 2020, Parents of the Student filed a due process complaint (“DPC”) under the Individuals with Disabilities Education Act (the “IDEA”) [20 U.S.C. section 1415(f)], Section 504 of the Rehabilitation Act of 1972 (“Section 504”) and Section 4404(1) of the New York State Education Law and attendant Federal and New York State Regulations against the New York City Department of Education (the “District” or “DOE”) (Parent Ex. A) [1] asserting Student, a six-year-old boy, was deprived a Free and Appropriate Public Education (“FAPE”) for the 2018-2019, 2019-2020 and 2020-2021 school years. Parent sought an interim order for pendency placement and also Independent Educational Evaluations (IEE), an order increasing Student’s services and determining the appropriate special education program for Student or in the alternative the District convene a CSE meeting reviewing the results of said IEEs to be ordered and develop an appropriate IEP and recommend an appropriate placement and various compensatory educational services.

I was appointed as the impartial hearing officer (“IHO”) on January 31, 2021. A pendency hearing was held in this matter on December 8, 2020, before IHO REDACTED before my appointment in which pendency was granted based upon Student’s December 11, 2019 Individual Education Program (“IEP”). See P Ex. C. The case was heard before this IHO on February 2, 2021, February 25, 2021, May 25, 2021 (Status Conference), August 3, 2021 (Status Conference), September 2, 2021 (Status Conference), October 21, 2021 and November 8, 2021.

A list of the documentary evidence submitted is appended to this Order. The compliance date for issuing a decision in this proceeding was extended before this IHO’s assignment and thereafter upon the Parties’ request due to the time necessary to complete the bilingual IEEs and obtain the IEE Reports, allow the parties to prepare fully, witness availability, and submission of closing briefs at Parties’ request.

BACKGROUND & PROCEDURAL HISTORY

Student is a boy born on REDACTED, who attended PS/IS REDACTED School (“PS REDACTED”) in Kindergarten for the 2020-2021 school year in a general education Integrated Co-Teaching classroom (ICT) classroom. P Ex. O-R. Parent asserts that the District failed in its child find obligations for the 2018-2019 school year. Student’s preschool teacher at REDACTED (“REDACTED”) referred Student for evaluations by the Committee on Preschool Education (CPSE). P Ex. A-3; H-M. In December of 2019, Student was initially recommended to receive special education services on a 10-month basis, including five hours per week of Special Education Itinerant Teacher (SEIT) services in a group of two, and speech language therapy once a week for a week sixty minutes in a group of two. P Ex. B-1. Following May 2020 Student’s “Tuning Five” Individualized Educational Program (IEP) meeting, Student was recommended for placement in an ICT Kindergarten class with Speech and Language 1:1 once a week for 30 minutes and in a group of three once a week for thirty minutes ((REDACTED). P Ex. P-10. Student’s SEIT services were terminated, and he was classified with a Speech and Language disability. P Ex. P.

During the 2019-2020 school year, Student attended REDACTED, a full-day preschool program where Student was in a classroom of twenty students and 3 teachers (1 lead and 2 assistants). P Ex. A-3. Student began Kindergarten at PS REDACTED in September 2020 (remotely). P Ex. N-O.

Parent moved for a battery of Interim IEEs to be conducted prior to the substantive hearings in this matter. P Ex. E. Parent asserted that despite documented cognitive difficulties, Student never received a neuropsychological evaluation and the extent of Student’s disabilities remained unknown. Tr. 14-50; P Ex. E. At the hearing regarding the Parent’s requested Interim IEEs, the District did not object to the IEEs but was only concerned as to the cost of the IEEs. Tr. 14-50.

Following the hearing for Parent’s motion for bilingual Interim IEEs, on February 12, 2021, I ordered several Interim IEEs (bilingual REDACTED/English) be conducted, and on February 23, 2021, I issued an Amended Interim Order. P Ex. E and F. The Amended Interim Order directed the District fund the following bilingual REDACTED/English IEES: (i) an Independent Neuropsychological evaluation for the Student, conducted by New York state-licensed psychologist of the Parent’s choosing, at market rate; (ii) an independent Speech-Language (“S/L”) evaluation for the Student, conducted by New York state-licensed Speech Pathologist of the Parent’s choosing, at market rate; (iii) an independent Occupational Therapy (“OT”) evaluation for the Student, conducted by New York state-licensed Occupational therapist of the Parent’s choosing, at market rate; (iv) an independent Auditory Processing evaluation for the Student conducted by provider of the Parent’s choosing, at market rate; (v) an Assistive Technology evaluation, at market rate; and (vi) an Applied Behavioral Analysis (ABA) skills Assessment, Functional Behavioral Observation (“FBA”) and Behavior Intervention Plan (“BIP”) with all such evaluations by a Board Certified Behavior Analyst (“BCBA”) of the Parent’s choosing, at market rate. P Ex. G.

At the May 25, 2021 status conference, it was determined that the IEEs in OT, Assistive Technology, ABA Skills assessment and FBA would be put aside for the time being due to the amount of time to complete the evaluations and the Parent’s concern about in-person evaluations during the COVID -19 pandemic. Tr. 69-75. At that point, the Auditory Processing Evaluation had been completed, and it was determined that the Neuropsychological and S/L Evaluations were necessary and had to be conducted in person. Tr. 69-75. Further, it was discussed that the need for any other interim IEE would be determined by the recommendations in the Neuropsychological Evaluation. Tr. 69-74.

Substantive hearings commenced on October 21, 2021 and continued on November 8, 2021. Tr. 96-176. The Parent entered several documents into evidence without any objections by District (list appended the end of this Finding of Facts and Decision). Tr. 101-104. The District offered no exhibits.

The District did not make an opening statement, put on a case or argue that it offered FAPE for any of the school years Parent alleged a denial of FAPE (2018-2019, 2019-2020, 2020-2021). Tr. 104,120. District only sought to reserve its right to a closing statement and to cross Parent’s witnesses regarding the relief requested by the Parent. Tr. 105-120.

The Parent presented its position: (i) no FAPE for the relevant years, (ii) Student did not receive his mandated services under the pre-school IEP (P Ex. B and V), (iii) Student was not properly evaluated, (iv) Student’s SEIT services (which Parent asserts were inadequate as not 1:1 ) were wrongly removed, (v) Student requires a 12-month school year due to known regression issues, (v) compensatory relief was sought in the form of SEIT hours, tutoring and Speech and Language therapy, (vi) a request that the IHO determine Student’s appropriate program going forward or an order directing the CSE create a new appropriate program pursuant to the IEE findings and recommendations, (vii) an FM system and assistive technology be ordered provided and (viii) an auditory processing, speech-language and neuropsychological evaluation within a year to explore Student’s growth and the effects of the interventions. Tr. 120-132.

District offered no direct testimony. Parent offered the testimony of the three Independent Evaluators, Dr. REDACTED (“REDACTED”) (Bilingual Pediatric Neuropsychologist), REDACTED (“REDACTED”), Bilingual Speech Pathologist, and Dr. REDACTED (“REDACTED”), Speech Pathologist and Audiologist via affidavit and direct testimony on the record. The District conducted limited cross-examination of REDACTED and REDACTED. Parent did not testify.

Parent submitted a closing brief, and the District did not submit a closing brief or make a closing statement. See IHO Ex. I, Parent Closing Brief.

Parent seeks the following findings and relief: (i) a finding District denied Student FAPE for the 2018-2019, 2019-2020 and 2020-2021 school years (“SY”); (ii) a finding the District subjected Student to discrimination based on his disability; (iii) District fund a bank of compensatory and makeup services at enhanced/reasonable market rates with providers chosen by Parent, as follows: a. 2,760 hours of Compensatory 1:1 special education instruction services minus the SEIT instruction Student received from District during the three SY at issue and/or tutoring after-school; and b. 144 hours of Compensatory SL/T services; (iv) a determination that an appropriate special education program for Student includes: (a) 20 hours of individual (1:1) special education teacher services, (b) a 12-month school year, (c) S/L T services 2x30 (1:1) and 1x30 (2:1), (d) counseling 1x30 (1:1) and 1x30 (small group), (e) an FM System and other AT equipment recommended in the Independent Evaluations (f) the accommodations as outlined in #5 of REDACTED’s Speech Language Evaluation report (“Ind. S/L Eval Report”); and (v) the DOE fund a neuropsychological re-evaluation and auditory processing reevaluation in 12-months after implementation of the compensatory services and any new program.

ISSUES PRESENTED

  • • Did District deny Student a FAPE during the 2018-2019, 2019-2020 and 2020-2021 school years?
  • • If so, what is the appropriate relief to provide a remedy for the District’ denial of FAPE (if any)?

FINDINGS OF FACT

As a preliminary issue, the facts stated above in “Background and Procedural History” shall be considered Findings of Fact herein.

2018-2019 School Year

Student turned three years old on REDACTED and was eligible to receive services from CPSE. P Ex. A. Student was never referred to the District’s CPSE for services at that time, and no further information is in the record regarding Parent’s complaint of the District’s failure of “child find” obligations as to Student.

2019-2020 School Year and 2019 Evaluations and Pre-School IEP

As discussed in Background Procedural History, Student became known to the CPSE after enrolled in pre-school. P Ex. A-3; H-M. Due to his speech delays, Student’s classroom teacher referred him for evaluations with the CPSE. P Exs. A-3; H-M.

The evaluations conducted in REDACTED when Student was four years and four months, included a social history, bilingual Psychological Evaluation, bilingual S/L Evaluation, Educational Evaluation and Classroom Evaluation. P Exs. I-M. Student’s Full-Scale IQ was found to be in the Deficient range. P Ex. B, J and S. His IQ subtests were as follows: Verbal Comprehension and Working Memory, Deficient; Fluid Reasoning and Processing Speed Borderline Visual, Spatial Low Average. Some of Student’s noted problems were he did not demonstrate an understanding of “more” or less”, the concept of “three,” could not sort objects into categories or identify objects that did not belong, could not draw, name and describe recognizable pictures, retell a story or build a pyramid of six blocks. P Ex. B, J and S-9-10.

Student’s motor development evaluated per a DAYC-2 assessment evidenced Student’s gross motor and fine motor skills were functioning below average. P Ex. B, J-L, S-10.

Student’s bilingual S/L evaluation found student had severe expressive, receptive speech and language delays. P Ex. B, K, L S-10. His functional linguistic skills were below age expectancy and receptive and expressive language were rated “very poor.” P Ex. B, K, L S-10-11 Some of Student’s noted Speech and Language problems were as follows: he could not give his full name on request; he did not understand negatives in sentences and could not make inferences; he had trouble processing what was said to him and required repetition of directives to attend; he did not use 4-5 words when speaking; he could not point to five or more common objects and describe by use (an age-appropriate skill); he did not make sentences of three or more words and could not use five or more regular plurals (boys, toys). P Ex. B, K, L S-10-11. Also, besides limited vocabulary and reliance on single words, Student had reduced intelligibility and poor topic maintenance. P Ex. B, K, L S-11. Student’s preferred language was found to be REDACTED. P Ex. K and S-10-11.

Student’s adaptive skills were also found to be functioning below average. P Ex. B, K, L S-11. He could not use language to facilitate social interactions and needed constant repetition for directives for understanding of tasks. P Ex. B, H-M.

An IEP meeting was held by the CSE in December 2019. P Ex. B. As stated above, at that time, Student was in a pre-school class with typically developing peers, 20 students, one headteacher and two teaching assistants. P Ex. A. The District recommended the following services for Student on a 10-month basis: (i) SEIT services of 5 hours per week in a group of 2 and (ii) S/L T once a week for 60 minutes in a group of 2. P Ex. B-1, 14. The IEP did not recommend a bilingual program. P Ex. B.

When the COVID-19 Pandemic started in March of 2020 Student’s school closed, and Student did not receive remote instruction from REDACTED or his mandated S/L Therapy. P Exs. A-5, T-2-3, AA-3. The only instruction that Student received remotely from March 2020 through June 2020 was from his SEIT provider, REDACTED, for five hours per week. P Exs. A-5, T-2-3, AA-3. However, because Student was not provided with the appropriate technology (an IPAD), Student received the remote SEIT instruction remotely via the family’s cell phone, and Student could not maintain his attention to the remote instruction. P Exs. A-5, T-3.

Turning Five Evaluations and May 2020 Kindergarten IEP In May of 2020 the District Committee on Special Education (CSE) held a “Turning Five” IEP meeting to determine Student’s Special Education program for the upcoming 2020-2021 school year (entrance to Kindergarten). P Ex. P.

The District conducted two new evaluations for the Turning Five: a classroom observation and a psychoeducational evaluation (neither contain substantive recommendations.) P Ex. N-O. The Classroom Observation dated February 28, 2020, describes the Student repeatedly failing to follow teacher instructions and or his peers in the class. P Ex. O. Student was watched during circle time and bilingual “Alphabet Yoga.” P Ex. O-1. Student did not sing along with rest of the class, did not do the yoga poses or say letter sounds that corresponded with the animal yoga pose as his classmates did, instead he sat on the floor. P Ex. O-1. Student was encouraged by teacher but did not participate or respond appropriately. P Ex. O-1. Student had trouble following directions to line up with the rest of the class and wash up for lunch. P Ex. O-1. Teacher informed the observer that Student did not usually participate in circle time but played with peers during center time and understood rules and routine. P Ex. O-1.

The Psychoeducational Evaluation conducted March 7, 2020 for the Turning Five included the Weschler Individual Achievement Test- 3 (WIAT -III) and Wechsler Intelligence Scale for Children Fifth Edition (WISC-IV). P Ex. N. The results from the WISC-IV in the Turning Five Psychoeducational Evaluation are similar to what was found in the November Pre-school Psychological evaluation. Compare P Ex. J and N. Student’s Full-Scale IQ was found to be in the Borderline range (between 70 to 79). P Ex. N. On the WIAT-III, Student’s Early reading skills were below average and Math problem solving was low.

In the Turning Five or Kindergarten IEP, the District recommended Kindergarten placement for a 10-month school year commencing September 2020 in a general education ICT classroom for Kindergarten with S/L Therapy (REDACTED) 1:1 once a week for 30 minutes and in a group of 3 once a week for thirty minutes. P Ex. P. The IEP categorizes Student with a Speech/Language Impairment. P Ex. P-1. The Present Levels of Performance (PLPs) in the Kindergarten IEP state Student struggles to access the general education curriculum without special education supports due to his extreme receptive and expressive delays, difficulty processing language and answering questions, following directions, expressing ideas or organizing academic materials and struggles with retention of information. P Ex. P-4.

2020-2021 School Year

Student had no Pre-school or Kindergarten placement for the summer of 2020. P Ex. A.

Student was enrolled in the ICT Kindergarten class at the District’s proffered placement at PS REDACTED, a dual-language magnet school. P Ex. A-6; T-3. Student’s schooling was completely remote from September 2020 until May 2021, when Student began attending a hybrid of in-person two days a week and remote the reminder of the week for the remainder of the 2020-2021 school year. P Exs. A-6;T-3.

An April 26, 2021 Student’s Teacher’s Report (REDACTED, one of Student’s Kindergarten Teacher at PS REDACTED reported Student was significantly below his peers in every realm, had not shown progress in any academic areas in English or REDACTED, requires a lot of 1:1 support to stay on task, lacks adequate physical and foundational skills to access the curriculum and has poor retention, recalling, vocabulary and comprehension and requires a lot of support. P Ex. Q-1-2, 17-19. His teacher states that he needs extra support – “SETSS” (Special Education Teacher Support Services) or a smaller class setting and at the time of the report he was identified as “promotion in doubt.” P Ex. Q-17.

Student’s estimated independent grade level for decoding and reading comprehension was pre-Kindergarten. P Ex. Q-10. It was reported Student did not recognize any letter, sounds or sight words when tested and has difficulty beginning print concepts (reading from left to right, beginning letter versus ending letter.) P Ex. Q-11. Student always needed support with reading and math. P Ex. Q-11-12. Student’s math calculation and estimated applied math skills were Pre-Kindergarten. P Ex. Q – 11 -12. The student’s teacher reported that Student cannot utilize strategies that he has been taught. P Ex. Q-13. His functional writing level is pre-kindergarten, he has a hard time writing his name and letters, requires a lot of 1:1 to complete work in class and fails to complete work in class P Ex. Q-13-14. The April 2021 Teacher’s Reports indicates Student had not received any “At-Risk Services” such as reading, math, writing or organization support. P Ex. Q-15.

IEE Examinations and Evaluators’ Recommendations

REDACTED and June 2021 Neuropsychological Evaluation

REDACTED collected teacher reports from Student’s other classroom teacher, REDACTED (REDACTED) (Special Education Teacher) and Student’s SEIT Teacher and reviewed all of Student’s IEPS, including the latest IEP for the 2021-2022 school year (in evidence) and prior evaluations and reports. P Ex. S-1-5. REDACTED also conducted a day of bilingual in-person testing of Student. Tr. 144. REDACTED reported Student was far below grade level and estimated to be at PreK level in Reading, Math, Written Language in June of 2021. P Ex. S-2-3. She reported Student struggles to hold writing implements effectively and only draws stick figures, even though given examples of drawings and he cannot write his name. P Ex. S-2-3. The classroom teacher reported student’s lack of progress is cause for concern and she believes he would benefit from “SETSS” and speech therapy. P Ex. S-3.

Student’s SEIT reported Student cannot identify the letters of his name or many other letters and associated sounds, cannot match upper- and lower-case letters or recognize sight words. P Ex. S-3-4. She also reported his math skills and writing were below grade level. P Ex. S-4. She reported Student could not attend to the iPad during remote instruction, has a short attention span, requires prompts and redirections, and has difficulty retaining information although targeted for a while. P Ex. S-4.

The Neuropsychological Report states and REDACTED testified that Student was significantly behind his peers in Kindergarten, struggled to retain information and seemingly had progressed little from Pre-K from educational standpoint. Tr. 144-151;P Ex. S-5, Z. Student’s Cognitive Assessments in the Neuropsychological Report are similar to what had been reported in the past and Student’s full-scale IQ was found to be a 73 or in the “Very Low” Level. P Ex. S-12-13, Z-4.

REDACTED testified that Student’s Fluid Reasoning is in the average level, and this indicates greater potential if his problematic areas were addressed. P Ex. Z-4, 8. Student’s weakest skills are verbal abstraction, visual motor speed, word knowledge, general knowledge and knowledge of social norms. P Ex. S, Z-5. REDACTED testified and noted in the Neuropsychological Report that Student had issues with visual motor precision, very low attentional capacity with severe speech and language issues. P Ex. S and Z. Student’s performance was very low on tasks such as copying geometric forms, completing a pegboard with his dominant hand, scanning or other tasks involving visual motor precision. P Ex. S-15, 21. Student’s levels of achievement in reading, writing and math skills were all measured at Pre-Kindergarten levels and the reports of his functioning levels was consistent with the SEIT and Kindergarten Teacher’s reports and similar to the findings in the District’s Educational Testing from 2019. TR. 137-140; P Ex. S and Z. Student’s speech and language issues is also noted in the Neuropsychological Report and by REDACTED as “markedly problematic” and notes his multiple difficulties in speech and language. P S-25, Z.

REDACTED diagnosed Student with a Language Disorder – Receptive and Expressive Language Delays; Specific Learning Disorder with Impairment in Reading – Decoding, Word Attack (Dyslexia); Reading Comprehension -Severe; Specific Learning Disorder with Impairment in Written Expression (Dysgraphia)-Severe; Specific Learning Disorder with Impairment in Math -Severe; and Developmental Coordination Disorder. P Ex. S-20-24, Z-7.

The Neuropsychological Report states that a review of Student’s records, including his March 2020 Psychoeducational evaluation and his most recent IEP describe severe difficulties and indicate marked delays in many areas, and it is not clear to the evaluator (REDACTED) why a large classroom setting was recommended. P Ex. S-24. The Neuropsychological Report states and REDACTED testified that the ICT classroom without any 1:1 instruction, or other marked levels of additional support cannot address Student’s difficulties. P Ex. S-24, Z-8.

The Neuropsychological Report stated, and REDACTED testified Student’s current educational program is inadequate and gave extensive and detailed recommendations. P Ex. S-25, Z.

The Neuropsychological Evaluation Report notes that Student presents with a “combination of difficulties that markedly interfere with his ability to function in an academic setting without marked additional supports and needs a specialized classroom and school setting that has the resources and expertise to address the combination of these difficulties.” P Ex. S-25. A small classroom setting with individual special education for both academic and behavioral needs and individual instruction of twenty hours a week is recommended. P Ex. S-26.

Recommendations were made for compensatory services by REDACTED in his testimony and the Neuropsychological Report based on the current needs of the Student due to the fact Student did not receive appropriate services related to his disabilities (for example, lack of evidence-based reading program for dyslexia) when needed. Tr. 147-151; P Ex. S-25-26. Twenty hours a week of push-in Special Education instruction 1:1 in the classroom for both academic and behavioral needs. P Ex. S-25; Z-8. REDACTED testified he supported the Parent’s request for 1:1 Special Education instruction to make up for the fact that Student received no special education services in 2018-2019 and only five hours per week of 1:1 SEIT beginning in approximately January of 2020. Tr. 148-151; P Ex. Z-9.

The Neuropsychological Evaluation Report states and REDACTED testified Student requires tutoring outside of the classroom setting after-school in a tutoring center that employs an evidence-based reading program with instruction by reading specialists or under the direct supervision of a reading specialist due to the fact that instruction was not provided previously in a timely manner. P Ex. S-26, Z-9. Neither the Neuropsychological Evaluation Report nor REDACTED sets a specific number of hours recommended, but the Neuropsychological Evaluation Report states given the extent and nature of his dyslexia, Student needs the maximum number of sessions that can be given as well as reinforcement with pull out”SETSS” (Special Education Teacher Support Services.) P Ex. S-26.

The Neuropsychological Report states and REDACTED testified that the following evaluations are needed: an updated Speech and Language Evaluation, Auditory Processing Evaluation, an Assistive Technology Evaluation and an Occupational Therapy evaluation. P Ex. S-25-26; Z-8-9. In the Neuropsychological Evaluation Report, it is stressed the Occupational Therapy Evaluations should use standardized testing of Student to assess whether motor weakness and coordination and also the evaluator should be appropriately trained and certified to conduct a sensory integration assessment. P Ex. S-25.

The Neuropsychological Evaluation Report states and REDACTED testified Student needs counseling in the school setting to develop strategies to address the nature and extent of his attention and internalization issues and self-esteem and recommends 1:1 counseling once a week to express personal difficulties and group (3:1) to address social functioning. P Ex. S-25, Z-8.

The Neuropsychological Report states and REDACTED testified Student requires an extended 12-month school year given his memory retention and regression difficulties. P Ex. S-25; Z-8.

The Neuropsychological Evaluation Report concludes that the compensatory services recommended may not be sufficient to address the nature and extent of Student’s difficulties and Student should be reevaluated “next year” in “sufficient time” to allow placement in a nonpublic school setting that has the resources, personnel and technology to address the severity of Student’s difficulties. P Ex. S-26.

REDACTED Testimony and Bilingual Speech/Language Evaluation

As recounted in procedural background, REDACTED testified she conducted a bilingual Independent Speech-Language Evaluation (“S/L IEE”) over two different days in June of 2021 while Student was attending Kindergarten. Tr. 154; P Ex. AA 1- 3.

The findings in the S/L IEE and REDACTED’s testimony are consistent with prior findings. The S/L IEE Report details Student’s S/L problems, described as severe expressive language and moderate phonological and receptive delays. P Ex. T-1-11, AA-2-7. Student’s speech intelligibility is reduced to 60% when context is unknown and significantly impacts his ability to communicate. P Ex. T- 11, AA-6. Student again is found REDACTED dominant, and the report states he has limited English skills. P Ex. T-11; AA-5.

REDACTED sets forth in her S/L IEE Report and testimony that Student had articulation/phonology problems such as initial consonant deletion (not typical), weak syllable deletion, gliding assimilation, fronting, and it is noted that these weaknesses in the phonological process were greatly reduced or eliminated with modelling. P Ex. T -1-11. Student’s more severe issues with receptive language were demonstrated by Student’s significant difficulty with most listening tasks, including limited comprehension and deficits in auditory working memory. P Ex. T-1-11; AA-5-6. Student’s expressive language in REDACTED is characterized by morphosyntactic errors, short sentences of one-to-four-word, limited vocabulary and very limited sequencing and narrative skills. P Ex. T-1-11; AA-6-7. It was noted in English he only produced four words in labeling assessments. P Ex. T-11, AA-7.

REDACTED testified and stated in the S/L IEE Report Student needs intensive bilingual English-REDACTED S/L therapy at school, and the current mandate is insufficient to meet to student’s needs. An increase to 2x30 (1:1) /L therapy and a group therapy session of a dyad for thirty minutes, 1x30 (2:1) with a bilingual English-REDACTED Speech Language Pathologist (SLP) weekly is recommended to target Student’s REDACTED and support acquisition of English. P Ex. T-12; AA-7. REDACTED recommends Push-in Therapy during ELA instruction at least once per week with the SLP, including ELA materials in pull-out sessions to target language and literacy goals. P Ex. T-12; AA-7. It is recommended pull-out sessions should only occur during an elective and not core academics. P Ex. T-12; AA-7. It is also recommended Student receive the recommended therapy over an extended school year (12 months) due to his moderate to severe S/L delays. P Ex. T-12; AA-7.

REDACTED testified and put in the S/L IEE that Student requires a bank of 144 hours of home-based 1:1 compensatory bilingual English-REDACTED S/L therapy as he did not receive services during the 2018-2019 year, only group services from December 2019-March 2020 and no services during the COVID-19 shutdown from March-August 2020. P Ex. T-12, AA- 7-8. The S/L IEE Report contains a chart of REDACTED’s calculated hours as follows: 2018-2019 SY 69 hours recommended, 0 received and 69 compensatory recommended; 2019-2020 SY 69 hours recommended, 12 received, 57 compensatory hours recommended; and 2020-2021 69 hours total recommended, 46 received (estimated) and 23 compensatory recommended. P Ex. T-13. REDACTED testified the bank of 144 hours was calculated based on three 46-week school years with subtraction of the estimated S/L Therapy provided. P Ex. T-12, AA-8-9.

REDACTED testified the “Turning Five” IEP did not adequately address Student’s S/L issues. P Ex. AA-9. REDACTED testified Student needed two individual sessions to effectively target Student’s articulation and phonological delays in addition to his expressive and receptive delays, and he need a combination of push-in and pull-out sessions. P Ex. AA-9.

REDACTED also recommends the Turning Five IEP recommended an inadequate amount of SEIT hours and should have recommended an extended year – 12-month program. P Ex. AA-9. She recommends increasing his “SEIT” services with a REDACTED-English bilingual teacher to 1:1 service for 20 hours a week to assist him in an ICT classroom where academic demands will increase as he needs prompting and redirection, is easily distracted and needs frequent review and monitoring. P Ex. AA-7; T-13.

Based on her findings, REDACTED also recommended the following accommodations: English to REDACTED translation, extra time to process, simplified directions, directions on writing assignments, frequent monitoring, 1:1 academic guidance, movement breaks and digitally provided instructional materials for school and home through web-based service (Read-Write; Google Docs, Google Slides), a website (BookShare, EpicBooks) and iPad App (Read2Go, Voice Dream); text to speech to replace reading as primary means of accessing information to access written texts independently. See P Ex. T-13, AA-8 and SS- 3-4.

IEE Auditory Processing Evaluation and Testimony of REDACTED REDACTED, an audiologist, SLP and NYS certified Teacher of Speech and Hearing Handicapped, conducted an auditory processing evaluation of Student in person on March 12, 2021 (and prior to the hearing had intake and interviews with Mother and SEIT Teacher). P Ex. U-1, BB-1-3. A REDACTED Interpreter was used. P Ex. U-1, BB-1-3. Due to Student’s limited attention and responsiveness, only a few short assessments were administered. P Ex. BB-4. REDACTED testified two tests are typical for the SCAN-3, Screener of Auditory Processing Disorders in Children conducted and if a child fails one test, he is considered to be “High Risk” for an auditory processing disorder. P Ex. BB-4.

Student’s collective scores on the SCAN-3C were below criterion. P Ex. BB-4. His age equivalent was less than three years old. P Ex. BB-5.

REDACTED’s Auditory IEE Evaluation found Student “at -risk” for auditory processing disorders (i.e., “what the brain does with what the ear hears”), in the areas of speech discrimination (performed below expected levels in both ears), figure-ground listening (listening in a background of noise) and auditory integration (dichotic words). P Exs. U and BB-4-6. REDACTED testified it was noteworthy that Student could not repeat several words presented and misheard words and that the same happened with REDACTED words when the REDACTED interpreter presented words. P Ex.U-4-5 and BB-5.

REDACTED trialed using a personal FM unit with Students and testified Student liked listening under headphones and indicated that speech sounded better this way. P Ex. BB-5. REDACTED recommended the following: (i) use of the FM System (personal binaural unit – Phonak Roger Focus) with microphone clip for teachers/instructors/therapists to address his poor discrimination in both quiet and noise to reduce the stress of listening and reduce the effects of background noise in the classroom (an alternative would be a sound enhanced classroom); ii) S/L Therapy increased to three times a week (1x1:1 and 2x3:1) in a 12 month extended SY; iv) another formal comprehensive processing evaluation in twelve months to rule in or out auditory processing disorder diagnosis; v) reading instruction with specific multisensory multi-modality phonological awareness approach (ex. Lindamood Bell, Orton-Gillingham, Wilson) by trained provider; vi) HearBuilder CD or iPad app for Auditory Memory with directives; vii) improve comprehension of literate language, active listening and engagement with audiobooks; viii) further evaluation for diagnosis of ADHD and/or ASD as other disabilities; and ix) recommended Student be provided with a note taker and/or note-taking assistance. P Ex. P Ex. U, B-7.

I found all of Parent’s witnesses credible and no basis to find their testimony or evaluations unreliable.

CONCLUSIONS OF LAW AND DISCUSSION

Law Regarding Burden of Proof Regarding Denial of FAPE The IDEA provides children with disabilities are entitled to a Free Appropriate Public Education ("FAPE") (20 USC § 1400 (d)(1)(A). FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written IEP (34 CFR § 300.13). A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP is developed through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). An IEP is designed as a “written statement” that addresses the educational needs of a child with a disability. 20 USC § 1401(14); 34 CFR § 300.323 (a); see also, Cerra v. Pawling Cent. Sch. Dist., 427 F. 3d 186 194 (2d Cir. 2005).

To meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S. Ct. 988, 999, 69 IDELR 174 (2017). A focus on the particular child is at the core of the IDEA. The instruction offered must be “specially designed’ to meet a child’s ‘unique needs.’” Id.

“A focus on the particular child is at the core of the IDEA.” Id. “[C]rafting an appropriate program of education requires a prospective judgment by school officials.” Id. at 992. “The Act contemplates that this fact-intensive exercise will be informed not only by the expertise of school officials, but also by the input of the child’s parents or guardians.” Id. at 999.

If a procedural violation has occurred, relief is warranted only if the procedural violation affected the student's right to a FAPE. 8 NYCRR § 200.5[4]; J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 (2d Cir. 2000). Adequate compliance with procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in the IEP.” Walczak v. Fla Free Sch. Dist., 142 F. 3d 119, 129 (2d Cir. 1998); Rowley, 458 U.S. at 206. “Multiple procedural violations may cumulatively result in the denial of FAPE even if the violations individually did not.” R.E. v. N.Y. City Dept. of Ed., 694 F.3d 167, 190-91 (2d Cir. 2012). The failure of a school district to provide a FAPE for a disabled student may arise out of substantively inadequate or inappropriate IEP and/or placement (Rowley, 458 U.S. at 192) and/or procedural inadequacies that (i) "impeded the student's right to a free and appropriate education," (ii) "significantly impeded parent's opportunity to participate in the decision-making process regarding a free and appropriate public education to parent's child" or (iii) "caused a deprivation of educational benefits." 20 USC § 1415(f)(3)(E)(ii); 34 CFR 200.513 (a)(2);8 NYCRR § 200.5(j)(4)(ii); R.E., 694 F.3d at 190.

FAPE is offered when a school district provides “personalized instruction with sufficient services to permit the child to benefit educationally from that instruction.” Rowley, 485 U.S. at 203. The IDEA does not articulate a specific level of educational benefits, and the adequacy of an IEP “turns on the unique circumstances of the child for whom it was created.” Endrew F., 137 S. Ct. at 1001; Walczak, 142 F.3d at 130; Rowley, 458 U.S. at 189. The IDEA ensures “an appropriate” education, “not one that provides everything that might be thought desirable by loving parents.” Walczak, 142 F.3d at 132; quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989)(citations omitted). Additionally, school districts are not required to “maximize” the potential of students with disabilities. Rowley, 458 U.S. at 189, 199. Yet, an IEP must be “reasonably calculated to provide some ‘meaningful’ benefit.” Mrs. B. v. Milford Bs. Of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see also, Endrew F., 137 S. Ct. at 999. The “IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement.” Id. at 1001. The Student’s recommended program must also be provided in the least restrictive environment. Gagliardo v. Arlington, 489 F.3d 105, 108 (2d Cir. 2007).

An appropriate educational program begins with an IEP that accurately reflects the student’s present level of academic achievement and functional performance, results of the most recent evaluations to identify the student's needs, establishes annual goals to meet to those needs, and enable progress in the general education curriculum or provides for the use of appropriate special education services. 34 CFR. 300.320(a)(1); 8 NYCRR 200.4(d)(2).

In an impartial hearing, the burden of proof is on the school district. NY Education Law § 4404(c)(1); R.E., 694 F. 3d at 184-85. This includes the burden of persuasion and production in a due process hearing, except that a parent seeking unilateral placement has the burden of persuasion and burden of production on the appropriateness of such placement. NY Education Law § 4404(c); see, Hardison v. Bd. of Education of Oneonta City School Dist., 773 F.3d 372, 386 (2d Cir. 2014); R.E., 694 F.3d at 184-85.

As the case at hand does not address a unilateral placement and tuition reimbursement or funding is not sought, the District bears the burden of proof that it offered Student a FAPE for the 2018-2019, 2019-2020 and 2020-2021 school years.

Law Regarding Compensatory Education

Compensatory education is an equitable remedy tailored to meet each case's unique circumstances. Wenger v. Canastota, 979 F. Supp. 147 (N.D.N.Y. 1997). A hearing officer may award compensatory education relief in the form of supplemental special education or related services when there has been a denial of FAPE or equitable services. P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008); E.M v. New York City Dep’t of Educ., 758 F. 3d 442, 451 (2d Cir. 2014)(compensatory education is a remedy designed to “make up” for a denial of FAPE). An award of compensatory education is an equitable remedy that "should aim to place disabled children in the same position they would have occupied but for the school district's violation of the IDEA." Reid v. District of Columbia, 401 F.3d 516, 523 (D.C. Cir. 2005). Compensatory education is "replacement of educational services the child should have received in the first place." Id. at 518; see also, Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 456 (2d Cir. 2015).

An award of compensatory services may be appropriate if a student has been denied appropriate services for an extended period and if such deprivation of instruction can be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation. Compensatory education may be awarded to students under the age of twenty-one. Student X. v. New York City Dep't of Educ., 2008 WL 4890440 (E.D.N.Y. Oct. 30, 2008). Compensatory Education awards should be designed to "appropriately address the problems with the IEP." P. v. Newington, 546 F.3d at 123.

There are two approaches to fashioning a compensatory education award, a "quantitative approach" or "qualitative approach," i.e., "a flexible approach, rather than a rote hour-by-hour compensation award.” See M.C. v. Cent. Reg' l Sch Dist., 81 F.3d 389 (3d Cir. 1996); Bd. of Educ of Fayette County v. L.M., 478 F.3d 307, 316 (6th Cir. 2007); see also, Reid, 401 F.3d at 518. An IHO may order an escrow account or “trust fund”, commonly referenced as a “bank” of compensatory hours/funding for compensatory education and services. Doe v. E. Lyme Bd. of Educ., 962 F. 3d 649 (2d Cir. 2020); Doe v. E. Lyme Bd. of Educ., 790 F. 3d 440 (2d Cir 2015); Streck v Bd. of Educ. Of E. Greenbush Cent. Sch. Dist., 408 F. App’x 411 (2d. Cir. 2010). An IHO can award compensatory services to a student denied FAPE if such deprivation “can be remedied through the provision of additional services.” Bd. of Educ. V. Munoz, 16 A.D.3d 1142 (4th Dept. 2005).

The District bears the burden of production and persuasion with respect to an appropriate compensatory award for denial of FAPE. NY Education Law § 4404.

The District Denied Student a FAPE for the 2018-2019, 2019-2020 and 2020 -2021 Years.

The District failed to carry its burden that it offered Student a FAPE for the time period in question. There was no testimony or evidence presented by the District. For all intents and purposes, the District conceded that a FAPE was not provided for the years asserted in Parent’s DPC by its failure to put on an affirmative case and resting without an opening or closing statement.

The party with the burden of proof has the duty and the obligation to prove or disprove a disputed fact. By failing to present any witnesses or evidence in this matter, the District has failed to meet their burden and conceded every point alleged with regard to the issue of whether Student received a FAPE for the 2018-2019, 2019-2020 or 2020-2021 school years. Therefore, District failed to offer an appropriate program and placement and denied student FAPE for all three school years 2018-2019, 2019-2020 and 2020-2021.

Parent requested the IHO determine the appropriate program for Student going forward is: 1) 20 hours of individual (1:1) special education teacher services to provide both academic and behavioral support; (ii) a 12 month school year; (iii) S/L Therapy services of 2x30 (1:1) and 1x30 (2:1), (iv) counseling 1x30(1:1) and 1x30 (small group), (v) an FM system and (vi) the accommodations as outlined in recommendations in the S/L IEE Evaluation Report #5 (English to REDACTED translation, extra time to process, simplified directions, directions on writing assignments, frequent monitoring, 1:1 academic guidance, movement breaks and digitally provided instructional materials for school and home through ha web-based service (Read-Write; Google Docs, Google Slides), a website (BookShare, EpicBooks) or through and iPad App (Read2Go, Voice Dream); Text to speech to replace reading as primary means of accessing information to access written texts independently. Tr. 107-109; IHO Ex. I-9.

The District objected to such relief and concerning an appropriate program going forward requested this IHO limit such an order that the District review the data in the Independent IEEs and allow the District to decide regarding a change to Student’s program going forward. Tr. 109-110.

I decline to award the prospective placement sought by the Parent, while I note prospective relief is appropriate in rare cases. See Connors v. Mills, 34 F. Supp. 2d 795, 799, 804-806 (N.D.N.Y. 1998). I do not believe that this case warrants such a finding. I note that REDACTED states in the Independent Neuropsychological Evaluation that a different environment – a specialized smaller classroom and different environment should be considered for Student. I am not convinced that the appropriate relief for Student going forward is solely the supports listed above while remaining in the ICT classroom.

Parents could have filed or may still file a DPC if displeased with the program and/or placement for the ongoing 2021-2022 school year. If they had filed a DPC with regard to that school year, prospective relief could be addressed. Eley v. District of Columbia, 2012 WL 3656471, *11 (D.D.C. 2012). The last school covered by the DPC herein is over. It is noted that an IEP that commenced in May 2021 is in evidence and covered much of the 2021-2022 school year, and it shows no change to Student’s program. P Ex. R-11. Student’s current placement and program is unknown to the IHO as there was no testimony regarding the 2021-2022 school year. Parent did not challenge that IEP or the 2021-2022 school placement in this DPC. Therefore, an award that is prospective in nature at this juncture is inappropriate.

I do find that the evidence offered by the Parent including the District’s prior evaluations, observations and the Independent Neurological Report evidence that District was aware or should have been aware of Student’s low cognitive functioning and other severe problems with speech and language, regression issues and attention through evaluations and observations since at least the time of the formation of the Turning 5 IEP. The evidence provided by Parent clearly evidences that Student was not appropriately placed in the 2020-2021 school year or given an appropriate program. Student should at the very least have been given greater individualized supports to function in the ICT classroom and also more Speech and Language Therapy from his known deficiencies as well as a 12-month school year due to known regression.

The Parent offered uncontradicted evidence and testimony from REDACTED that when Student is placed in the ICT classroom setting he requires a great deal of individualized instruction and supports and also a 12-month school year due to regression. P Ex. S- 24-27. This finding that Student needed greater support in the ICT classroom during the 2020-2021 school year is also supported by REDACTED and REDACTED.

Therefore, I find that for the 2020-2021 school year while placed in the ICT classroom Student should have also received on his IEP, at minimum, the following service as part of his program: 1) 20 hours of individual (1:1) bilingual REDACTED -English special education teacher services to provide both academic and behavioral support push-in/pull-out; (ii) a 12 month extended school year; (iii) bilingual REDACTED-English S/L Therapy services of 2x30 (1:1) and 1x30 (2:1) (iv) counseling 1x30(1:1) and 1x30 (small group) and (v) an FM system.

. B. Compensatory Relief

Regarding the compensatory educational services requested for the Department’s denial of FAPE in the past, the Parent presented uncontradicted expert testimony from several well-credentialed experts in the relevant fields that detailed the specifics of compensatory education services required to remedy the student’s many deficits due to his speech and language disorder, severe learning disabilities in reading, math and writing (dyslexia and dysgraphia) and developmental coordination disorder. Due to the District’s failure to address these disabilities appropriately in a timely manner, Student is grossly behind where he should be.

In light of the denial of FAPE that resulted in the Student’s current educational deficits, the Parent’s request for remediation services is appropriate. This remediation is specifically designed to remediate Student’s educational deficits and afford Student the opportunity to attain the academic level that Student should have attained had a FAPE been provided during the relevant school years. The District failed to meet its burden of proof, since there is no way to go back in time and undo the District’s failures, the appropriate mechanism to make this Student whole is to provide them with educational benefits and services that would have likely accrued but for District’s failure to provide FAPE during the time in dispute.

I credit the underlying concepts behind the method that Parent’s evaluators and Parents calculated the request for 2,760 hours of 1:1 special education instruction (less any hours of SEIT services Student received during the relevant time period) and 144 hours of compensatory speech-language therapy. But I note Parent and REDACTED used 46 weeks to calculate services on an extended school year, and an extended school year is 42 weeks (36-week school year plus six weeks).

Therefore, I calculated the appropriate amount of compensatory education 1:1 bilingual REDACTED -English Special Education Teacher Services to provide both academic and behavioral support push-in/pull-out in the classroom as follows: 20 hours per week x 126 weeks (3 Extended SYs) – 230 (50 hours received for 10 weeks from January -March of 2020 + 180 hours for the 2020-2021 school 36-week school year ) equals an award of a bank of 2,290 hours. Note I did not reduce the 2019-2020 school year for the months of March through June that Student received SEIT hours as the uncontroverted evidence was Student could not attend to the SEIT as appropriate equipment was not provided and SEIT hours were attempted unsuccessfully through the Parent’s cell phone.

Using the chart in the S/L IEE Report and adjusting the recommended 69 hours of Speech and Language Therapy each year for 63 hours and then adjusting for S/L Therapy received I award 131 hours of home-based bilingual REDACTED -English S/L therapy.

Further, I award a bank of tutoring hours for Student of outside of school tutoring in a tutoring center that employs evidence-based reading program using a specific, multisensory, multi-modality, phonological awareness approach with instruction provided by reading specialists or under the direct supervision of a reading specialist and also math tutoring with a math specialist in the amount of the equivalent of a year and a half of an extended school years’ worth of 8 hours of tutoring a week, a bank of 504 hours of tutoring (63 weeks x 8= 504).

I also find Student should be provided with the FM system as recommended by REDACTED and the technology recommended by REDACTED digitally provided instructional materials for school and home through web-based service (Read-Write; Google Docs, Google Slides), a website (BookShare, EpicBooks) or through and iPad App (Read2Go, Voice Dream); Text to speech to replace reading as primary means of accessing information to independently access written texts.

Student shall undergo a full Independent Occupational Therapy Evaluation in-person based upon tests and assessments and including sensory integration assessment done by an OT Therapist appropriately credentialed in sensory integration assessment such as PRAXIS. Student should also undergo follow-up Independent Neuropsychological and Auditory Processing reevaluations in 12-months.

Following the Occupational Therapy Evaluation, I order that this matter be referred backed to the CSE for consideration of all of the Independent Evaluations conducted to consider the diagnoses in in the Independent Neuropsychological Evaluation of REDACTED (Ex. S) and findings in the other IEEs; and there should be an immediate referral to CBST if placement in non-public school (NPS) is determined to be appropriate to be considered and identified.

ORDER

Based upon the findings of fact and conclusions of law herein, IT IS HEREBY ORDERED that the following relief be GRANTED to Parent:

ORDERED, the New York City Department of Education failed to offer and provide Student with an appropriate program for the 2018-2019, 2019-2020 and 2020-2021 school years and therefore, denied Student a FAPE;

ORDERED, that the appropriate program for Student for the 2020-2021 school year should have included the following additional supports and services in Student’s IEP: 1) 20 hours of individual (1:1) bilingual REDACTED -English special education teacher services to provide both academic and behavioral support push-in/pull-out; (ii) a 12 month extended school year; (iii) bilingual REDACTED-English S/L Therapy services of 2x30 (1:1) and 1x30 (2:1) (iv) counseling 1x30(1:1) and 1x30 (small group) and (v) an FM system (personal binaural unit – Phonak Roger Focus) with microphone clip;

ORDERED: The District shall fund an Independent Occupational Therapy (“OT”) Evaluation conducted in-person based upon tests and assessments and including sensory integration assessment done by an OT Therapist appropriately credentialed in sensory integration assessment such as PRAXIS with a provider of Parent’s choosing at Provider’s prevailing market rate;

ORDERED: Committee on Special Education (CSE) shall meet within fifteen (15) days of receipt of the Occupational Therapy Evaluation Report in the preceding ordering paragraph and consider all of the Independent Evaluations conducted according to my prior Interim Order in this matter, and the CSE shall consider referral of this Student to the CBST so the Student can be placed in a 12-month non-public school (NPS) placement;

IT IS FURTHER ORDERED, the Department of Education (“District”) shall immediately provide the Student with a compensatory service as follows, all to be provided by an independent provider of the Parent’s choosing at market rate to be used up within four years from this decision:

  • • a bank of 504 hours of academic tutoring at a tutoring center that employs an evidence-based reading program using a specific, multisensory, multi-modality, phonological awareness approach with instruction provided by reading specialists or under the direct supervision of a reading specialist and also math tutoring with a math specialist;
  • • a bank of 2,290 hours of 1:1 bilingual REDACTED-English Special Education Teacher Services to provide both academic and behavioral support push-in/pull-out in the classroom; and
  • • a bank of 131 hours of 1:1 home-based bilingual REDACTED -English Speech-Language therapy;

IT IS FURTHER ORDERED that the District provide an FM system (personal binaural unit – Phonak Roger Focus) with microphone clip and instructional materials for school and home through web-based service (Read-Write; Google Docs, Google Slides), a website (BookShare, EpicBooks) and iPad App (Read2Go, Voice Dream); Text to speech to replace reading as primary means of accessing information to independently access written texts;

IT IS FURTHER ORDERED, in the event the District fails to provide the assistive devices in the preceding paragraph and other assistive technology within thirty days, the Parent shall be able to purchase the device and be reimbursed for the payment as well as any necessary installation or setup fees in the event a third party sets up the device;

IT IS FURTHER ORDERED, Student should undergo follow up Independent Neuropsychological and Auditory Processing Reevaluations in 12-months with the same Providers that conducted the Interim Independent Evaluations herein if possible, and if not, with similarly credentialed evaluators of Parent’s choosing at the evaluators’ prevailing rate;

IT IS HEREBY ORDERED that the New York City Department of Education shall immediately comply in all respects with this Decision and Order, including provision to Parents of any Agency or Provider of services of any required documentation and forms necessary to facilitate payment/and or reimbursement within ten days of this order; and

IT IS HEREBY FURTHER ORDERED that any remaining issue, claim or contention not expressly addressed in this Decision, is hereby denied.

Dated: February 2, 2022

STEPHANIE SETO, Esq.

Impartial Hearing Officer

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.

DOCUMENTS ENTERED INTO THE RECORD

LIST OF PARENT EXHIBITS

Exhibit

Description

Date

Pages

A Impartial Hearing Request 11/23/2020 17

B CPSE IEP 12/11/2019 17

C Order on Pendency 12/12/2020 9

D SRO No. 19-094 11/20/2019 9

E Parent Motion for Interim Order for IEEs 02/01/2021 9

F Interim Order for IEEs 02/12/2021 6

G Amended Interim Order for IEEs 02/23/2021 6

H CPSE Evaluation Summary Report 11/15/2019 4

I CPSE Social History 11/15/2019 3

J CPSE Bilingual Psychological Evaluation 11/15/2019 7

K CPSE Bilingual Speech and Language Evaluation 11/22/2019 8

L CPSE Educational Evaluation 11/20/2019 8

M CPSE Bilingual Educational Evaluation – Classroom Observation 11/20/2019 2

N DOE Psychoeducational Evaluation 03/07/2020 5

O DOE Classroom Observation 02/28/2020 1

P DOE Turning Five IEP 05/06/2020 16

Q Student Pre-Assessment Teacher Form 04/26/2021 19

R DOE IEP 04/28/2021 17

S Independent Neuropsychological Evaluation 08/06/2021 36

T Independent Speech Language Evaluation 07/10/2021 13

U Independent Auditory Processing Evaluation 03/12/2021 7

V Related Service Attendance Records Various 27

W Records Subpoena for Case No. 204328 02/02/2021 2

X

Resume of REDACTED, M.S. CCC-SLP

Undated

2

Y Resume of REDACTED, Ph.D. Undated 4

Z Affidavit of REDACTED, Ph.D. 10/19/2021 9

AA

Affidavit of REDACTED, M.S. CCC-SLP

10/19/2021

9

BB

Affidavit of REDACTED, Ph.D. CCC-SLP/A

Undated

7

IHO EXHIBIT

  • • Parent’s Closing Brief, 11 p.

Footnotes

[1] Exhibits shall be referred to as follows: “P” for Parent Exhibit; “D” for District; “IHO” for Impartial Hearing Exhibit