New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACTS & DECISION

Case Number: 208170

NYS Identifier Number: 551960

Student’s Name: REDACTED

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Requested By: Parent

Dates(s) of Hearing: 09/28/21, 10/28/21, 12/20/21,

02/04/22, 04/07/22, 04/28/22,

06/29/2022 & 08/18/22

Actual Record Close Date: 11/05/2022

Hearing Officer: Sharifa Milena Nasser

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date

[REDACTED] Attorney PARENT 09/28/21 (V)

[REDACTED] DOE Representative DOE 09/28/21 (V)

[REDACTED] Attorney PARENT 10/28/21 (V)

[REDACTED] DOE Representative DOE 10/28/21 (V)

[REDACTED] Attorney PARENT 12/20/21 (V)

[REDACTED] Mother PARENT 12/20/21 (V)

[REDACTED] Father PARENT 12/20/21 (V)

[REDACTED] DOE Representative DOE 12/20/21 (V)

[REDACTED] Attorney PARENT 02/04/22 (V)

[REDACTED] Mother PARENT 02/04/22 (V)

[REDACTED] DOE Representative DOE 02/04/22 (V)

[REDACTED] Attorney PARENT 04/07/22 (V)

[REDACTED] DOE Representative DOE 04/07/22 (V)

[REDACTED] Attorney PARENT 04/28/22 (V)

[REDACTED] Mother PARENT 04/28/22 (V)

[REDACTED] Father PARENT 04/28/22 (V)

[REDACTED] Witness PARENT 04/28/22 (V)

[REDACTED] DOE Representative DOE 04/28/22 (V)

[REDACTED] Witness DOE 04/28/22 (V)

[REDACTED] Attorney PARENT 06/29/22 (V)

[REDACTED] Mother PARENT 06/29/22 (V)

[REDACTED] Witness PARENT 06/29/22 (V)

[REDACTED] DOE Representative DOE 06/29/22 (V)

[REDACTED] Attorney PARENT 08/18/22 (V)

[REDACTED] Mother PARENT 08/18/22 (V)

[REDACTED] Witness PARENT 08/18/22 (V)

[REDACTED] DOE Representative DOE 08/18/22 (V)

DOCUMENTATION ENTERED INTO RECORD

Number/Letter Title Dated For # of Pages

A DPC 04/30/21 PARENT 14

B TDN 08/20/19 PARENT 03

C TDN 08/23/20 PARENT 03

D TDN Response 09/15/20 PARENT 01

E IHO Appointment Notice 09/14/21 PARENT 01

F Literacy Diagnostic Report 11/27/17 PARENT 02

G Psychoeducational Report 06/09/18 PARENT 02

H Neuropsych Evaluation 06/2018 PARENT 18

I Neuropsych Evaluation 06/11/19 PARENT 14

J Program Description 09/2019 PARENT 16

K Remote Learning Program 04/30/20 PARENT 02

L Class Schedule 09/2019 PARENT 02

M Report Card 06/2020 PARENT 01

N Progress Report 02/2020 PARENT 12

O Progress Report 06/2020 PARENT 06

P Enrollment Contract 03/10/19 PARENT 02

Q Tuition Affidavit 03/29/22 PARENT 01

R Program Description 2020/2021 PARENT 02

S Remote Learning Program 10/15/20 PARENT 03

T Reopening Plan 09/2020 PARENT 19

U Class Schedule 02/11/21 PARENT 01

V Report Card 06/2021 PARENT 01

W Progress Report 02/2021 PARENT 05

X Progress Report 06/2021 PARENT 08

Y Enrollment Contract 02/25/20 PARENT 03

Z Tuition Affidavit 03/29/22 PARENT 01

AA Test Grid 09/05/19 PARENT 01

04/27/21

BB Invoice 06/26/20 PARENT 02

CC Affidavit of REDACTED 04/27/22 PARENT 18

DD Affidavit of REDACTED 06/23/22 PARENT 14

EE 2017 to 2018 and N/A PARENT 17

2018 to 2019 Spreadsheet of Proof of Payment for

FF Tuition Statement and 03/15/19- PARENT 10

Proof of Payment of 06/10/20 The REDACTED School

Tuition

GG Tuition Statement and 03/02/20- PARENT 13

Proof of payment for 04/15/21 The REDACTED School

Tuition

HH 7/17/18 Proof of 06/08/18- PARENT 04

Payment for 2018 07/17/18

Evaluation by

REDACTED

II Affidavit of REDACTED 08/11/22 PARENT 09

JJ Affidavit of Direct 08/11/22 PARENT 15

Testimony of

REDACTED

1 Letter 09/13/18 DOE 01

2 Social History Notice 09/17/18 DOE 02

3 Social History Notice 10/15/18 DOE 02

4 Consent for Evaluation 10/22/18 DOE 01

5 Social History 10/22/18 DOE 04

6 Home Language Survey 10/22/18 DOE 02

7 Classroom Observation 12/10/18 DOE 02

8 Teach Report 10/19/18 DOE 04

9 Teacher Report 10/25/18 DOE 04

10 Neuropsych Evaluation 06/2018 DOE 17

11 Meeting Notice 11/30/18 DOE 03

12 IEP 12/13/18 DOE 15

13 Attendance Page 12/13/18 DOE 01

14 PWN 12/20/18 DOE 04

15 Meeting Notice 01/3/19 DOE 03

16 Email 01/8/19 DOE 01

17 IEP 12/13/18 DOE 17

18 Meeting Notice 03/4/20 DOE 03

19 Meeting Notice 03/19/20 DOE 03

20 IEP 04/29/20 DOE 23

21 Attendance Page 04/29/20 DOE 01

22 PWN 06/18/20 DOE 04

23 School Location Letter 06/18/20 DOE 02

24 Affidavit of REDACTED 04/04/22 DOE N/A

On September 14, 2021, I was appointed as the Impartial Hearing Officer (“IHO”) to conduct a hearing pursuant to the Individual with Disabilities in Education Act (“IDEA”), 20 United States Code, Section 1415(f)(1), concerning a dispute involving the special education program of a fourteen (14) year old student attending a private school and the New York City Department of Education (“DOE”) District 02. The Parents allege a denial of FAPE for the 2018-2019, 2019-2020 and 2020-2021 school years The Parents filed a Due Process Complaint (“DPC”) on or about May 03, 2021. The case was then waitlisted due to the unavailability of Hearing Officers until September 14, 2021. Impartial hearings were held on 09/28/21, 10/28/21, 12/20/21, 02/04/22, 04/07/22, 04/28/22, 06/29/2022 & 08/18/22.

A Motion to dismiss was filed by the DOE on or about November 8, 2021. The Parent’s responded to the motion on or about November 24, 2021. The Motion to dismiss was denied on December 20, 2021. A list of the documents taken into evidence is annexed to this decision. A written closing statement was submitted by the Parent and the DOE.

At the impartial hearing, the Parent seeks the following relief:

• • A finding that the student was denied a FAPE for the 2018-2019, 2019-2020 and 2020-2021 school years.
• • A finding that the private school was an appropriate placement for the student for the 2019-2020 and 2020-2021 school years.
• • Tuition reimbursement and/or direct payment of the student’s tuition at the private school for the 2019-2020 and 2020-2021 school years; and
• • A finding that the Parents are entitled to compensatory education and entitled to reimbursement for the cost of the private tutoring services in the amount of $10,680.00 and $4,500.00 Independent Neuropsychological assessment of the student conducted in 2018.

THE DOE’S CASE The DOE called one witness to testify on its behalf and submitted (24) documents in evidence. In sum, substance and relevant part, the testamentary and documentary evidence for and against the DOE’s case is incorporated in the decision below. The DOE conceded that there was a FAPE violation for the 2020-2021 school year. (T-45-46)

THE PARENT’S CASE The Parent had (4) witnesses testify on their behalf, who testified on direct testimony via affidavit pursuant to 8 NYCRR 200.5[j][3][xii][f]. On the hearing dates, the DOE crossed all of the affiants. The Parent also submitted (36) documents in evidence. In sum, substance and relevant part, the testamentary and documentary evidence for and against the Parent’s case is incorporated in the decision below.

FINDINGS OF FACTS & DECISION

Two purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected. (See 20 U.S.C. § 1400[d][1][A]-[B] and Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982])

A FAPE is offered to a student when (a) the DOE complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. (See Rowley, 458 U.S. at 206-07 and Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]) While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA. (See A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003] and Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007])

Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits. (See 20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008] and Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007] aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008])

An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs (34 C.F.R. § 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals related to those needs (34 C.F.R. § 300.320[a][2]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services. (See 34 C.F.R. § 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; SRO No. 07-018; 06-059; 06-029; 04-046; 02-014; 01-095 and 93-09) Subsequent to its development, an IEP must be properly implemented. (See 8 NYCRR 200.4[e][7] and SRO No. 08-087)

The DOE may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim. (See Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993] and Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]) In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA. (See Burlington, 471 U.S. at 370-71; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007] and Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]) "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE. (See Burlington, 471 U.S. at 370-71; 20 U.S.C. § 1412[a][10][C][ii] and 34 C.F.R. § 300.148)

The New York State Legislature amended the Education Law to place the burden of production and persuasion upon the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of production and persuasion regarding the appropriateness of such placement. (See Educ. Law § 4404[1][c], as amended by Ch. 583 of the Laws of 2007) The amended law took effect for impartial hearings commenced on or after October 14, 2007; therefore, it applies to the instant case. (See SRO No. 08-016)

A private school placement must be "proper under the Act." (See Carter, 510 U.S. at 12, 15 and Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs. (See Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129 and Matrejek, 471 F. Supp. 2d at 419) 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. (See Carter, 510 U.S. at 14) The private school need not employ certified special education teachers or have its own IEP for the student. (See Carter, 510 U.S. 7; SRO No. 08-085; 08-025; 08-016; 07-097; 07-038; 02-014 and 01-105) Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate." (See Gagliardo, 489 F.3d at 112 and M.S. v. Bd. of Educ., 231 F.3d 96, 104 [2d Cir. 2000]) "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement….'" (See Gagliardo, 489 F.3d at 112; Frank G. v. Bd. of Educ., 459 F.3d at 364 [2d Cir. 2006] [quoting Rowley, 458 U.S. at 207 and identifying exceptions]) Parents need not show that the placement provides every special service necessary to maximize the student's potential. (See Frank G., 459 F.3d at 364-65) 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 benefits." (See Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]]) A "private placement is only appropriate if it provides 'education instruction specifically designed to meet the unique needs of a handicapped child.'" (See Gagliardo, 489 F.3d at 115 [emphasis in original], citing Frank G., 459 F.3d at 365 quoting Rowley, 458 U.S. at 188-89)

The IDEA allows that tuition reimbursement may be reduced or denied if parents do not provide “notice” of the unilateral placement either at the most recent CSE meeting prior to removing the child from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense." (See 20 U.S.C. § 1412[a][10][C][iii][I] and 34 C.F.R. § 300.148[d][1]) This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools." (See Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]) Although a reduction in reimbursement is discretionary, courts have upheld the denial of tuition reimbursement in cases where it was shown that parents failed to comply with this statutory provision. (See Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); SRO No. 07-133; 07-120; 07-115; 07-098; 07-079; 07-075; 07-038; 07-032; 06-122; 06-069; 06-057; 06-042; 06-041; 06-035; 05-092 and 04-022)

The final criterion for a reimbursement award is that the parent's claim be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA. (See Burlington, 471 U.S. at 374; M.C. v. Voluntown, 226 F.3d 60, 68 [2d Cir. 2000] and Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required"]) Such considerations "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters." (See Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff'd, 471 U.S. 359 [1985]) With respect to equitable considerations, the IDEA provides that tuition reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, fail to engage with potential placements offered by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. (See 20 U.S.C. § 1412[a][10][C][iii]; Thies v. New York City Bd. of Educ., 2008 WL 344728 [S.D.N.Y. Feb. 4, 2008]; M.V. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181 at *5 [N.D.N.Y. Jan. 2, 2008]; Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 [S.D.N.Y. Nov. 20, 2007]; Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 [S.D.N.Y. 2005], aff'd, 2006 WL 2335140 [2d Cir. Aug. 9, 2006] and Voluntown, 226 F.3d at n.9)

In the absence of evidence demonstrating that petitioners failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, or failed to give proper notice, equitable considerations generally support a claim of tuition reimbursement. (SRO No. 04-049) In sum, substance and relevant part, the testamentary and documentary evidence in this case is as follows:

The Parents allege a denial of FAPE for the 2018-2019, 2019-2020 and 2020-2021 school years. The Parents became concerned with their child’s performance as early as kindergarten and enrolled her in private tutoring since the first grade. (JJ) The Parents provided the school with a literacy assessment conducted in 2017. (F & JJ) On about June 2018 the Parents had the child privately evaluated by a neuropsychologist. After the neuropsychological was completed, the Parents provided the school with a copy of the report and requested a meeting with the school on or about September 13, 2018. The Parents allege that the DOE delayed the evaluation process, classroom observation, etc and an IEP meeting was not held until December 13, 2018. The school did not conduct their own neuropsychological and relied solely on parent’s private report. (H). On December 13, 2018, an Individualized Education Program (IEP) meeting was held, three months after the Parent’s request. After the meeting the DOE issued the student an IEP. The Parent alleges that the DOE failed to complete their own IEP for the 218-2019 school year. The IEP included a recommendation for SETTS services, 3 weekly sessions in ELA and 2 weekly sessions in Math, testing accommodations and an implementation date of 2/01/2019. The Parents expressed their concerns with the recommendations.

It is the Parent’s position that the program developed during the December 13, 2018 IEP meeting (“IEP 1”), was for the remainder of the 2018-19 school year, and that the CSE should have reconvened at/towards the end of the 2018-19 school year to determine if the program recommendations were appropriate and/or produced any progress and/ or were appropriate to carry over into the 2019-20 school year, especially as the student transitioned to middle school and allege that the DOE’s actions and inactions constituted a denial of FAPE for the 2019-20 school year. (DPC pg 5)

The Parent never received a Prior Written Notice Letter from the DOE for the 2018-2019 or the 2019-2020 school year. The Parent also never received a school location letter for the 2019-2020 school year. The Parents allege that the student’s Individualized Education Program (“IEP”), is procedurally and substantively flawed and woefully inadequate. (A-DPC) Accordingly, the Parents further allege that the student was denied a “free and appropriate public education” (“FAPE”) for the 2018-2019, 2019-2020 and 2020-2021 school years. (Id.) The Parents allege that the CSE failed to conduct a proper review for the student and make appropriate recommendations for her educational planning. The Parent states that they served the DOE with notice of the student’s unilateral placement at a private school on August 21, 2019 for the 2019-2020 school years and on August 23, 2020 for the 2020-2021 school year. (B &C) The DOE never responded to the parents’ letters.

DOE Witness The DOE’s witness testified via affidavit on direct. Dr. REDACTED, is the school psychologist for P.S. REDACTED. The witness testified as follows:

• • As a School Psychologist, my duties include leading IEP meetings, including initial referrals, re-evaluations, and triennial reviews. I develop IEPs alongside the staff members who work with the particular student. For students who are facing learning disabilities, I help assess their abilities and devise the best instructional strategies for optimal learning. I frequently collaborate with teachers, parents, administrators, and other professionals to strengthen connections between home and school for all students. In my role as a School Psychologist, I frequently make IEP recommendations based upon review of documents. I also occasionally provide crisis counseling for students.
• • I participated in REDACTED’s IEP meeting on December 13, 2018. I participated as school psychologist and district representative. The IEP team reviewed the following documents: the student’s social history; the classroom observation, which was conducted by me; two teacher reports from the student’s teachers; and a neuropsychological from 2018 that the parent had provided. I understand these have been submitted into evidence as DOE exhibits. The team also spoke with REDACTED teachers prior to the IEP meeting.
• • It is my opinion that the IEP team had sufficient evaluative date to make a recommendation for REDACTED. The reports the IEP team had access to provided sufficient information regarding REDACTED cognitive capabilities and areas of challenge.
• • Based on the data the team had available, the student was performing on grade level, but struggled with some reading and math skills, particularly around phonological awareness.
• • In my view, the annual goals are responsive to REDACTED needs and were designed to address her challenges with phonological awareness and decoding. Everyone present at the meeting- including the parent- had the opportunity to participate in creating the goals and had the opportunity to voice their opinions.
• • Similarly, the management needs are responsive to REDACTED particular challenges with reading comprehension and writing. It is my opinion these management needs could be implemented by the recommended program.
• • The team had a conversation during the meeting about recommending SETTS or an ICT classroom. Ultimately, the team decided to recommend REDACTED receive SETTS three times/week in a separate classroom for ELA, and two times/week in the general education classroom for math. The team determined that the SETTS instructor would be able to provide more targeted instruction that could more directly address REDACTED areas of need.
• • REDACTED challenges in math were less significant than her reading challenges, and the team subsequently determined after the December 13, 2018 meeting that those supports could be delivered within the general education classroom. The parent consented to this amendment of the IEP.
• • The SETTS classes in our school for the 2018-19 school year contained a maximum of 8 students; however, I believe the SETTS classes all contained fewer than 8 students that school year.
• • I also recall explaining to the parent during the meeting that the SETTS provider for ELA was trained in the SPIRE program, which is a program based on the Orton Gillingham approach for reading instruction.
• • I do not recall the parent objecting to the program recommendations during the IEP meeting.
• • In DOE Exhibit 17-16 and 17-17, the IEP team recorded the other program recommendations and the reasons the team rejected those particular programs as inappropriate for REDACTED It is noted that the Parent did not wish for REDACTED to be placed in an ICT classroom as a special education student, as she was concerned REDACTED would be too easily distracted. The parent thought SETTS would be more appropriate to REDACTED needs.
• • In my clinical opinion, the IEP created on December 13, 2018, was appropriate for REDACTED as it would enable the Student to make meaningful progress in the least restrictive environment.
• • (DOE -24)

On cross-examination the school psychologist testified as follows:

The witness confirmed that the student’s initial IEP came about at the parents request for an evaluation. (T-62) The witness further confirmed that it was not the school, public school personnel, teachers, or anyone else at the school that referred the student for an evaluation. The witness testified that she did not conduct a psycho educational evaluation of the student. (T-63) The witness also confirmed that she reviewed the students independent neuropsychological prior to the December 13, 2018 IEP meeting. and confirmed that it was a comprehensive evaluation. (T-63)

The witness also testified that they did not ask the parent whether they can do their own evaluation after reviewing the independent evaluation because we felt we had evidence from this to make a decision. (T-64) The witness further confirmed that the parent was sent initial request for evaluation forms, she was asked to sign consent forms, consenting to start the process for evaluation, observation, and whether her child need an IEP, correct?

“The witness confirmed that the parent cooperated by signing the consent forms and cooperated by providing the evaluation to the district and cooperated and any other way she can recall that she cooperated with herself and the team.” (T-65)The witness testified that she observed the student in reading and writing in her classroom and that the amount of students was somewhere between 20 to 30. (T-69) The witness was asked if there’s something that prevented you from observing her more than one time or more than one subject, the witness answered, “I was doing other assessments at the time and other observations.” Question, so is your answer based on the fact that you didn’t have enough time to do more than one observation, is that your testimony? The witness answered no, I felt this was a good snapshot of where she was at. When the doctor was asked if there were times where you do more than one observation of a student? “The witness testified that she felt this was a good snapshot of where she was at. We also had extensive testing material.” (T-73)

The witness was asked at the end of the IEP meeting was the student going to remain in her general education classroom and then have a pull-out service of ELA and math. The witness testified that it was correct. And the group would be of eight students, but it never gets to that it’s usually much smaller. (T- 76). The witness was asked the following how about after the meeting?” Do you have any information from the time of the meeting through the end of the 2018 to 2019 school year about what if any progress REDACTED made and reading, writing, math, or any aspect of her academics? The witness testified she doesn’t know, I don’t remember. (T-82)

On redirect the witness was asked the following, why did the team determine it was appropriate to use the neuropsychological? “This is what the mother wanted to use.” Did the team feel like they needed additional information answer the any additional information. “we thought we needed was not through a direct assessment it was through teacher reports and observation.” The witness was asked in her professional opinion would there have been any additional value here in doing a psychoeducational for the student. The witness responded after the neuropsychological. No, I don’t think so” The witness was asked why not? “Because the neuropsychological had a lot of information and that some of the testing, is testing that I would have used. (T-87-88)

Parent’s private tutor REDACTED, testified as follows via affidavit on direct examination:

• • I first met REDACTED on or about December 2017. At the time, REDACTED was a fourth-grade student of the New York City Department of Education, attending REDACTED.
• • Due to concerns about educational performance and concerns about REDACTED lack of appropriate academic progress, REDACTED parents arranged for her to meet with my colleague, REDACTED, for an assessment in the fall of 2017, during REDACTED fourth grade school year.
• • REDACTED evaluated REDACTED reading and writing skills and found that REDACTED instructional reading level was below grade level, and that she also needed assistance with basic writing conventions. Ex. F. I reviewed a battery of assessments done by REDACTED, including assessments of REDACTED decoding phonological awareness, phonemic awareness structural analysis and comprehension. The battery of assessment was a combination of standardized tests and informal assessments. For example, assessment included were Words their Way, a writing sample, Burns & Roe reading inventory to assess word recognition and reading comprehension, and Scott & McClearly Diagnostic Assessment to assess phonetic and structural analysis, and Botel Word opposite test. These assessments revealed that there was a significant discrepancy between REDACTED verbal intelligence and her academic performance. She displayed phonological processing deficits. Her writing skills were also below grade level. The assessments were consistent with the deficits that I saw when I began working with REDACTED.
• • Based on the results of the evaluation, REDACTED recommended that REDACTED receive training in the Orton Gillingham multi-sensory language learning program at least three times per week. Ex. F. Orton Gillingham is a highly structured approach that breaks reading and spelling down into smaller skills involving letters and sounds and then builds on these skills over time. It was the first approach to use explicit, direct, sequential, systematic, multi-sensory instruction to teach reading, which is effective for all students and essential for teaching students with dyslexia.
• • REDACTED referred the family to me given my expertise in literacy and reading and the Orton Gillingham approach.
• • I began working directly with REDACTED during REDACTED fourth grade school year and continued through the end of REDACTED fifth grade school year (2018-19).
• • I met with REDACTED 2 to 3 times for one hour per week depending on need and availability. The fee was $120 per session.
• • Sessions addressed REDACTED specific language learning needs and goals including the development of phonological awareness (phonemic awareness, syllabication, rhyming skills), spelling patterns, working auditory memory, writing (word, sentence, and short answers). Organization and study skills (including time management) and endurance with difficult tasks.
• • Approximately three weeks into tutoring, I informed REDACTED parents that, based on my professional knowledge and experience in reading and literacy, I believed that REDACTED would meet diagnostic criteria for dyslexia. REDACTED had deficits in spelling and reading consistent with this diagnosis. I was concerned with the discrepancy between her verbal intelligence and academic performance and phonological processing difficulties. Her foundational skills for reading and writing were not intact. I also found her lack of self-esteem as a student concerning. For example, during each of our sessions when I would ask her about school. REDACTED would share that she is frustrated at not being able to keep up, and at the faster speed with which her classmates could complete tasks at school. REDACTED would say something like “I am working and trying to remember all things, but it's not working”. Her inability to keep up in her class was a source of stress and frustration to her and impacting her self-esteem.
• • I was aware that the parents contacted REDACTED public school to request that they provide additional support to REDACTED and to collaborate with me on techniques to support her during the school day. I also reached out to her public-school teachers on multiple occasions, but they did not respond to me. It was my professional recommendation that REDACTED team would benefit from collaboration with me in the form of reinforcement of effective strategies. It is in a student’s best interest when successful learning strategies are reinforced in school and home environments.
• • While the school promised to provide additional supports, none were implemented through the end of the 2017-18 school year.
• • Based on my knowledge of REDACTED, professional background, and experience, I believe that REDACTED would have met eligibility criteria for an IEP during the 2017-18 school year as she transitioned into the 2018-19 school year. This is because the discrepancy between her verbal skills and literacy skills was an indicator that there was an underlying learning disability. In addition, REDACTED had phonological deficits that negatively impacted her reading fluency, comprehension of texts, and writing. However, no one from REDACTED public-school referred her for a special education eligibility determination.
• • Absent special education services from her public school, the family continued to have me work 1:1 with REDACTED through the 2018-19 school year, 2 to 3 times per week.
• • Because supports were not put into place, the Parents sought a private neuropsychological evaluation. REDACTED was evaluated by REDACTED in June of 2018. The parents also enrolled REDACTED in a summer program at the REDACTED School.
• • I reviewed REDACTED evaluation and I agreed with his findings, diagnoses, and recommendations. Ex. G, H. In particular, I agreed that REDACTED had not made appropriate progress academically and that she required intensive, multisensory reading instruction to address her reading and spelling deficits, in a small, special education school with teachers who could provide intensive multisensory reading instruction, such as Orton Gillingham. I also agreed that REDACTED required a highly structured and systematic writing program.
• • In the fall of REDACTED fifth grade (2018-19 school year), REDACTED was finally referred for an IEP eligibility determination following the parents’ request. However, the school did not convene for an eligibility IEP meeting until December 13, 2018. Almost a year after I began working with REDACTED, the DOE finally provided REDACTED with an IEP. She was determined eligible under a primary disability classification of Learning Disability.
• • Despite REDACTED IEP and the additional services outside of school, REDACTED was not making appropriate progress. Ex. 17. In my opinion, the December 13, 2018 IEP was not appropriate and not enabling her to make appropriate progress. The IEP goals were not adequate and did not address all of REDACTED reading and writing deficits. The IEP also was not appropriate because the special education services provided (SETSS) in reading 3 times per week were inadequate to meet her needs and allow her to progress. REDACTED needs were not being met across all of her core academics; she did not have appropriate, specialized instruction and support in subject areas in which reading, writing and spelling demands were placed on her, including Social Studies and Science. She was not able to access her education in the large, general education classroom setting. The 3 times per week pull out SETSS in ELA was inadequate.
• • The reading program at REDACTED public school also was not appropriate for her. Her school used the Wilson program, which was not appropriate for her needs. This is because the Wilson program moves on to new skills whenever a skill is deemed to have been learned; there is no spiraling back to sustain acquired knowledge, which was something REDACTED required. Given REDACTED deficits, this was necessary and therefore the Orton Gillingham approach was appropriate. Additionally, implementing the Wilson program with fidelity requires that each session convene for a minimum period of 60 minutes. REDACTED IEP states that each ELA session was schedule for a “period” and therefore an undesignated amount of time. It was unclear, particularly because REDACTED school team would not communicate with me, how much of her ELA instruction was dedicated to Wilson, and in my professional opinion what was being provided was not appropriate because she was not making adequate progress.
• • REDACTED continued to talk to me about her feelings and experience in public school during our work together. She often expressed frustration because she was not receiving the appropriate support and could not access learning appropriately. She expressed that she found it challenging to learn in her classroom because there were kids who misbehaved and took up much of her teacher’s attention and distracted her from her own learning. She was unhappy at her public school because the team was not meeting her needs.
• • I also reviewed REDACTED reevaluation of REDACTED in June 2019 and agreed with his findings that REDACTED had made little-to-no progress and required a full-time program where she could receive specialized, multisensory reading and writing instruction. Ex. I. I never received any reports, assessments or other data to support that REDACTED was making appropriate progress on her IEP goals for the 2018-19 school year. Parents regularly shared with me report cards and I saw REDACTED schoolwork. Her schoolwork demonstrated how much she struggled with the lack of daily support in school. (II)

On cross examination, the witness was asked the following, despite [REDACTED]’s IEP, and additional services outside of school, [REDACTED] was not making appropriate progress. Is that a fair and accurate depiction of your testimony? “Yes” Question OK and just to be clear, the additional services outside school that’s reference in that sentence that refers to the tutoring you provided [REDACTED], is that right? “Yes.” (T 151-152)

The Parents witness, REDACTED conducted the students neuropsychological and testified on direct via affidavit to the following:

• • I conducted two evaluations of REDACTED, one occurring in June 2018, and a reevaluation in June 2019.
• • The cost of each evaluation is as follows:
• • June 2018: $4500
• • June 2019: $2000
• • The respective costs are in line with the New York market rate for such evaluations. The parents have paid for each evaluation in full.
• • The conclusions of each evaluation are based upon testing, interviews, observations and/or review of records, as set forth in each report. For a detailed recitation of my findings, please refer to the detailed evaluations in evidence.
• • At the time of the June 2018 evaluation, REDACTED was a [REDACTED]-year old, fourth grade student, attending REDACTED a New York City public school. She was initially evaluated by me in order to provide information for the implementation of interventions during the summer of 2018 due to longstanding concerns about academic skill development. Parents had provided her with private tutoring due to concerns that she was not keeping up with grade level expectations, and she had undergone a literacy evaluation that indicated concerns. REDACTED also would resist doing homework and appeared discouraged whenever she had to read. I provided the family with a short, preliminary report, but immediately thereafter conducted additional testing and completed a comprehensive neuropsychological and educational evaluation, with a final report being provided on or about September 13, 2018.
• • Based on the results of the preliminary evaluation, REDACTED met diagnostic criteria for a Specific Learning Disorder with impairment in reading, also known as dyslexia. At that time, I recommended a summer reading program for students with dyslexia that was offered by the REDACTED, which accepted her based on the preliminary report I had prepared.
• • I continued my assessment of REDACTED on June 8, 12, and 20, 2018. The results demonstrated that although REDACTED has overall cognitive abilities within the average range, her academic skills were not appropriately developed at that time. She performed just marginally average with her sight word vocabulary and below average in her ability to decode words and with the speed and efficiency with which she could decode, also referred to as fluency. She had an associated deficit in phonological awareness that contributed to reading and spelling challenges. Written language findings were significant for below average spelling skills. She was unable to complete writing tasks within a normal time frame for her age. She was below expectations with the organization of her writing, as well as with her ability to write sentences correctly and with her use of punctuation. She was also below average in math concepts, math problem solving, and in mastery of basic math facts. Her expressive and receptive language abilities and auditory working memory were low average. Her visual spatial analysis and construction and visual motor integration were also within the low average range. She measured as below average in some areas of processing speed, revealing vulnerability in her ability to complete tasks within the same span of time as her peers. She was particularly slow at task completion requiring her to divide and shift attention to more complex tasks. Writing would be an example of that. REDACTED issues with academics were contributing to a high level of stress and anxiety.
• • In addition to her learning disability in reading, REDACTED also met diagnostic criteria for a specific learning disorder with impairments in written language and mathematics. Based on the results of this evaluation, it was my professional opinion at that time that REDACTED was not making appropriate progress in key aspects of academic skill development, with some skills (including decoding, phonological processing, and spelling) being equivalent to those of the average second grader.
• • The results of my evaluation indicated that REDACTED should have been referred for a determination of eligibility for an IEP as a student with a learning disability.
• • I recommended intensive, multisensory reading instruction and placement in a special education school that could provide small classes with teachers trained in facilitating literacy and learning development in children with learning disabilities. This included intensive, individualized 1:1 and small group multisensory reading instruction, such as Orton-Gillingham.
• • As part of the June 2018 neuropsychological and educational evaluation, I gathered information about the program REDACTED received for fourth grade at REDACTED. Based on the information reviewed and the results of the evaluation, it was apparent that the public-school program in place was not appropriate and was not meeting her needs. Due to her lagging academic skills, parents had been providing support outside of school in the form of tutoring, while her identified challenges should have been being addressed within the context of her school day.
• • In June of 2019, I was asked to reevaluate REDACTED to assess her progress. At the time, REDACTED was completing her fifth-grade school year at REDACTED.
• • The evaluation was based on information obtained from interviews with her parents, teacher questionnaires, review of records, a classroom observation and educational testing.
• • As part of my reevaluation, I reviewed the IEP the DOE was supposed to implement, beginning January 2, 2019, after finding REDACTED eligible for an IEP as a student with a learning disability. Although the IEP provided special education teacher support services for reading three times per week, small group, in a separate location, and twice per week in math in a small group (whether in the classroom or separate location), these services were inadequate and did not meet the recommendations set forth in my June 2018 evaluation. As detailed below and in my report, REDACTED did not make appropriate progress under the January 2019 IEP and therefore the IEP was not appropriate for her.
• • The June 2019 reevaluation included a classroom observation. The observation revealed that the ICT classroom environment REDACTED was placed in for fifth grade was not conducive to her needs. It was quite noisy, with the teacher shouting just to be heard. Groups of students within the classroom were loud, disruptive, and distracting. The teacher noted that the classroom process was often derailed by disruptive behaviors. The teacher also noted that REDACTED often had trouble completing her work on time. On teacher questionnaires about REDACTED, teachers pointed out issues with attention, anxiety, learning issues, study skills and work habits.
• • The results of the 2019 reevaluation indicate that, despite the IEP, REDACTED had made little to no academic progress in a year’s time. Though she had completed the fifth grade, her reading skills in relation to decoding, fluency, and comprehension remained below grade level (mid-second to mid-third grade); her writing in areas of spelling and fluency were a mid-third to mid-fourth grade level; and in math, she remained below average for math concepts and problem solving with skills equivalent to those of the average late third grader. She continued to meet diagnostic criteria for a learning disability in reading, math, and written language.
• • It was my professional opinion that, based on the results of my evaluation, REDACTED continued to require intensive, multisensory reading instruction in order to address her reading and spelling deficits; specialized instruction in math; and placement in a special education school that could provide small class sizes with teachers well-trained in facilitating learning development in children with learning disabilities. REDACTED demonstrated a critical need for individualized and intensive multisensory reading instruction, such as Orton-Gillingham, on a consistent daily basis individually or in a small group.
• • I have reviewed the IEP developed for implementation beginning May 11, 2020, where the CSE recommended Integrated Coteaching Services, or “ICT”. However, this recommendation was not appropriate for REDACTED. She required intensive support to build specific academic skills that continued to lag behind expectations. This would require consistent, specialized instruction and a higher frequency of teacher support than could be provided within an ICT classroom. She also presented with weaknesses in listening comprehension and auditory working memory, as well as challenges managing classroom tasks, all of which would require more intensive and frequent teacher support. These challenges would also require a calm and quiet learning environment, which would not be the case in a large ICT classroom.
• • This IEP is inconsistent with my recommendations and was not designed to allow [REDACTED] to receive educational benefit. (CC)

There was limited cross examination for this witness by the DOE with respect to who conducted the classroom observation and the description of other children’s behavior in the classroom. (T – 107-109)

The Parent’s witness from the private school, REDACTED, testified via affidavit on direct as follows:

• • In connection with my work as the CSE Liaison for REDACTED, I am familiar with the student, REDACTED. REDACTED completed sixth and seventh grade at the REDACTED during the 2019-2020 and 2020-2021 school years.

2019-2020 School Year

• • Over the course of these two school years, I have observed REDACTED, gathered information from and had conversations with her teachers, reviewed her file in its entirety, including information from the admissions file, reviewed quarterly progress reports and the test grid, and reviewed a neuropsychological evaluation completed by REDACTED in 2018 and 2019. In addition, I participated in a CSE-9 IEP team annual review meetings on April 29, 2020, reviewed materials gathered by my colleague for a CSE-9 annual review meeting on April 22, 2021, and participated in a CSE meeting on September 21, 2021 meeting.
• • When considered for admission to REDACTED, REDACTED presented as a student with gaps in her decoding skills, difficulties with oral reading accuracy and fluency as text increased in length and complexity, variable reading comprehension skills, weak written expression, good vocabulary but word retrieval difficulties. A review of her school history indicated weakness in some of the foundational skills for reading, early difficulty with skill development in reading, and limited response to school-based and private support services.
• • Based on the aforementioned presentation, REDACTED was seen as a student who required direct, sequential, skill-based instruction in a language-based small class setting and was subsequently offered placement at REDACTED for the 2019-2020 school year. The family accepted placement, and REDACTED began attending REDACTED.
• • REDACTED entered the sixth grade at the REDACTED located at REDACTED in September 2019.
• • From September 2019 through Friday, March 13, 2020, REDACTED started her day at REDACTED in homeroom and ended her day with a fifteen-minute focus period with her homeroom cohort. Her schedule included English language arts instruction three periods daily, math, social studies, science, library, physical education, art, and a computer class.
• • At REDACTED, REDACTED had access to direct, sequential, multisensory, language-based instruction in the skills required for reading and spelling. Her classes were small, and the instructional program, Preventing Academic Failure, was research-based. REDACTED was grouped with students of at least average intelligence with similar skill development needs. Small classes allowed teachers to monitor REDACTED engagement and her progress in skill development, and allowed her to practice, with the support of a teacher or an assistant teacher, the reading, spelling and writing skills she was learning. Small classes allowed for extensive oral reading and for modeling of fluent reading, and for guided practice in using strategies to write more effective sentences. Remote instruction was provided beginning on April 2, 2020, and continued through the end of the school year.
• • Modifications to instruction in the classroom provided by REDACTED teachers included: structure and predictable routines, an organizational system for assignments, a planner for recording assignments, direct small class instruction and one-to-one support, extensive wait time to process information, support for organizing oral language, visual charts and supports in the classroom, graphic organizers for reading, direction instruction in new vocabulary, teacher modeling of new skills, charts with step by step procedures for math review and repetition, guided practice in applying new skills, vowel sound charts, transition word charts, question words for expanding sentences, sentence starters, graphic organizers for paragraphs and essays, additional time to copy notes and copies of class notes as needed, and a number of others.
• • Accommodations included extra time for testing as needed, specially lined paper, administration in a small class setting, directions read orally and questions read as needed, a multiplication chart as needed.
• • REDACTED was the lead teacher in REDACTED English language arts classes, and REDACTED was the assistant teacher. REDACTED has an undergraduate degree and a graduate degree in Elementary/Special Education Grades 1-6, with a minor in mathematics. She has NYS Elementary/Special Education certification. She has taken the required courses through the [REDACTED] as well as several others, the 2019-20 school year was her third year at REDACTED.
• • REDACTED was the lead teacher in REDACTED math class. REDACTED has an undergraduate degree and a graduate degree in Special Education with a focus on Learning Disabilities. REDACTED is currently NYS certification in Students with Disabilities Grades 1-6.. She has taken the required courses through the [REDACTED] as well as several others, and the 2019-20 school year was her fifth year at REDACTED.
• • REDACTED was the lead teacher in REDACTED social studies class. REDACTED has an undergraduate degree and a graduate degree in Cognitive Studies in Education with a concentration in Literacy and Language Development. She has taken the required courses through the [REDACTED] as well as a number of others, the 2019-20 school year was her fourth year at REDACTED.
• • REDACTED was the lead teacher in REDACTED science class. REDACTED has an undergraduate degree and a graduate degree (MA-T). His NYS provisional certification has lapsed as it is not required for employment at REDACTED, an independent school. He has taken the required courses through the [REDACTED] as well as a number of others, and the 2019-20 school year was his seventh year at REDACTED.
• • REDACTED areas of weakness in English language arts skills were identified based on the neuropsychological evaluation completed, assessments and observations of her performance during admissions screening, and assessments completed at the beginning of the 2019-20 school year, and teacher observations of her work. At the start of the school year, REDACTED presented with difficulties with decoding, oral reading accuracy and fluency, higher-level reading comprehension, spelling, grammar and punctuation, written expression (sentences, paragraphs and essays).
• • To address these English language arts deficits, REDACTED had access to direct, sequential, multisensory language-based instruction in a small class setting three periods daily. In the reading period, REDACTED read from carefully selected trade books, working on oral reading accuracy and fluency, and on reading comprehension and vocabulary development. In the writing class, REDACTED learned strategies she could use to write more effective sentences and paragraphs. In the skills class, REDACTED learned strategies to improve her decoding, spelling, and grammar skills. In addition, all of her teachers are trained to address reading, writing and language needs, so REDACTED reading, writing and language needs are addressed throughout the school day.
• • REDACTED reported that REDACTED was good with routines, attentive and engaged in class, and she improved her level of comfort and her confidence throughout the 2019-20 school year. REDACTED learned rules and strategies to improve decoding and spelling, including learning to recognize syllables and use syllabication strategies to improve decoding and spelling. She still needed occasional reminders to use learned strategies when decoding and spelling more challenging multisyllable words. REDACTED responded well to supports for comprehension including a story grammar frame, and guided questioning and scaffolding, that helped her to respond more effectively to higher level comprehension questions. In writing, REDACTED learned cursive writing quickly and used it effectively for written expression. Cursive writing is emphasized at REDACTED because research suggests that it supports skill development in reading and spelling. REDACTED also learned to recognize and correct run-ons and fragments in her writing, and she used learned strategies, including expanding her sentences using question words, combining thoughts using conjunctions, to write more effective sentences. At the paragraph level, REDACTED learned to organize information for a paragraph using a quick outline (QO), the graphic organizer used at REDACTED, and worked on writing more effective topic sentences and concluding sentence. REDACTED reported that REDACTED improved her ability to improve her grammar and syntax, but still needed some support for identifying relevant supporting details. REDACTED was exposed to information on the structure of an essay and use of a multi-paragraph outline (MPO) to organize information for an essay, but most activities were teacher directed and independent essay writing is still a goal. She also used a check list for revising and editing. REDACTED reported that REDACTED internalized all sentence activities, and the use of a quick outline and the MPO. She made tremendous growth in her ability to use REDACTED writing strategies to write more effective sentences and organize her ideas for paragraphs and essays.
• • In math, at the start of the 2019-2020 school year, REDACTED presented as a student with weaknesses in fact automaticity, computational accuracy, and math word problems.
• • To address these math deficits, REDACTED had access to direct, specialized instruction in math concepts and skills in a small class setting. The focus was on helping her to learn grade level concepts and skills but also to strengthen her fact automaticity and fill in gaps in her understanding of procedures for computation. In a small class setting, REDACTED had access to direct instruction in concepts and skills, repetition, guided practice, and reteaching. Her instructional program included work with integers, exponents and equations, word problem strategies, operations with decimals and fractions, geometry and pre-algebra skills.
• • REDACTED responded well to the supports for skill development in math that were available to her at REDACTED. Her attention was good, and her participation improved as she got more comfortable and confident. She was always prepared, her work was neat and organized on paper, and she improved her self-advocacy skills. She made progress in fact automaticity but still had difficulty with some of her facts, and those difficulties compromised her computational accuracy. Teachers supported this by instructing her in step-by-step procedures which helped her with more challenging computation. She required multiple exposures, and from review and guided practice before fully internalizing new concepts and skills.
• • In science, REDACTED studied Earth Science and space science. She was described as a model science student and a good role model for her peers. She was a neat and careful worker who worked hard. Attentive and engaged, she grasped new concepts and skills quickly and did well on assessments. She handled the transition to remote learning well.
• • In social studies, REDACTED studied ancient civilizations, world religions, and the Middle Ages. Quiet at the start of the year, her participation increased as she became more comfortable. She had some difficulty with comprehension of historical concepts, especially cause/effect relationships, but responded well to the supports that were available to her. She was well-organized, followed class routines pretty independently, and typically participated to my expectations. She needed encouragement and scaffolding to support with document analysis. She especially enjoyed the units on ancient Greece because she is Greek and contributed great background knowledge.
• • All of REDACTED teachers reported she made significant progress over the course of the 2019-2020 school year. Progress is measured though direct observation of student work, school-based and standardized measures, and program-based proficiency measures, and is documented in quarterly progress reports. Both the final progress report and REDACTED performance on standardized measures suggest growth in skills that were explicitly taught in her program REDACTED.
• • Based on my knowledge of the program at REDACTED, my knowledge of REDACTED as a student, and my review of all the evaluative material discussed herein, it is my professional opinion that REDACTED was an appropriate placement for REDACTED for the 2019-20 and 2020-21 school years. The REDACTED program is evidence-based, and the teachers are highly trained in working with students who are dyslexic and have language-based learning disabilities. REDACTED worked hard, benefitted from skill-based instruction in a small class setting, recognized her progress and took pride in her accomplishments. She received significant educational benefit from the specialized instruction and individualized supports provided in a small class setting. At REDACTED, she learned the reading, writing and math skills that are necessary to be successful in a general education school setting. She was able to transition to a general education school for the 2021-22 school year. (DD)

On cross examination, the was witnesses asked, “so it’s your testimony just to clarify, it’s your testimony that REDACTED was prepared to return to the general education setting at the conclusion of the 2021 school year, is that right? “Answer, “that’s a hard question to answer yes or no. That’s all I can say. With your permission, I will provide details.” Question, well sorry just to clarify, you testified in the affidavit that she was able to transition to a general at school. So, are we to take that to mean that she was ready she could have moved onto a general education classroom at the end of the 2021 school year? Answer, “what I will say in response to that is that we anticipated that REDACTED will continue at the REDACTED school for the 8th grade. Due to the circumstances beyond our control, she was not able to return to REDACTED for eighth grade and we did work with the family to identify a general education school that she could attend during the 21-22 school year, and I participated in the IEP meeting that documented her progress and provided for her and the family to access support services while enrolled in a general education school during the 21-22 school year.” Question, OK thank you in general though, REDACTED would provide transition supports for students who are moving into a general education environment? Answer, “we work with our families through the outplacement process. The work we do with our families involves helping them identify a school that is appropriate for the replacement, following the completion of the time at REDACTED, and we also work with families to ensure that the necessary supports, the special education services and accommodations are provided.”( T-126-128.)

GROSS VIOLATION

A gross violation of the IDEA may result from the denial of, or exclusion from, educational services for a substantial period of time. (See SRO No. 04-074, citing Mrs. C. v. Wheaton, 916 F.2d 69 (2d Cir. 1990), Burr v. Ambach, 863 F.2d 1071 (2d Cir. 1988) and SRO No. 02-047. In Burr, exclusion from educational services for a substantial period of time was defined as “almost two years.” (See SRO No. 02-033 citing Burr “…after a severely disabled student's school was closed, prolonged delays in the administrative proceedings in obtaining a new placement resulted in a complete exclusion from any educational placement for the student for almost two years.”

Here, the DOE’s failed to provide the student a FAPE for the 2018-2019, 2019-2020 and 2020-2021 school years. As such, I find that the DOE’s failure to afford the student a FAPE constitutes a gross violation of IDEA.

APPROPRIATENESS OF THE RELIEF SOUGHT

I now turn to the question of whether the DOE should be required to reimburse and/or pay for the private educational services and relief requested for the student, because the services offered by the DOE were inadequate or inappropriate, and the relief sought and services selected by the Parents are appropriate and equitable considerations support the Parent’s claim. (Burlington, Florence and Cerra, Supra) The Parent need only demonstrate that the requested services are specially designed to meet the unique needs of the student, supported by such services as are necessary to permit her to benefit from the instruction. (See Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65)

The Parents evidence shows that the student has made academic progress while enrolled in the private school for the 2019-2020 and 2020-2021 school years. The students report cards and progress reports are submitted into evidence. (M, N, O, V, W, X)

The Parents evidence also shows that the Parents tried to help the student out by hiring a private tutor who also testified. The witness acknowledged on cross examination that the student was not academically progressing in a manner that she should have been through the tutoring. (T151-152) The witness further testified that after reviewing the students neuropsychological she also agreed that the student needed a more structured program, “such as Orton Gillingham. I also agreed that REDACTED required a highly structured and systematic writing program.” (DD Paragraph 47)

During the time that the student received the tutoring services, the DOE delayed the student’s initial IEP evaluation and meeting and delayed the implementation of the IEP after more than half of the school year had gone by.

COMPENSATORY SERVICES

There is request for compensatory educational services in this case and an IHO cannot determine the amount of compensatory education that a student requires unless the record provides him with sufficient “insight about the precise types of education services the student needs to progress.” (Mary McLeod Bethune Day Acad. Pub. Charter Sch., 555 F. Supp. 2d 130, 50 IDELR 134 [D.D.C. 2008] citing Branham v. District of Columbia, 427 F.3d 7, 44 IDELR 149 [D.C. Cir. 2005]) Pertinent findings to enable an IHO to tailor the ultimate award to the student’s unique needs should include the nature and severity of the student’s disability, the student’s specialized educational needs, the link between those needs and the services requested, and the student’s current educational abilities. (See Branham v. District of Columbia, 427 F.3d 7, 44 IDELR 149 [D.C. Cir. 2005], see also Mary McLeod Bethune Day Acad. Pub. Charter Sch., 555 F. Supp. 2d 130, 50 IDELR 134 [D.D.C. 2008]) The Parent has the burden of “propos[ing] a well-articulated plan that reflects the student’s current education abilities and needs and is supported by the record.” (See Phillips v. District of Columbia, 2010 WL 3563068, at *6, 55 IDELR 101 [D.D.C. Sept. 13, 2010] quoting Friendship Edison Pub. Charter Sch. Collegiate Campus v. Nesbitt (“Nesbitt II”), 583 F. Supp. 2d 169, 172, 51 IDELR 125 [D.D.C. 2008])

Regarding the Parent’s request for compensatory services, here, the Parent need only show that the relief requested is "reasonably calculated to enable the child to receive educational benefits." (Frank G. & Gagliardo, supra -emphasis added) This standard of review is de minimus, and arguably below all of the other recognized standards of review in the law, such as “beyond a reasonable doubt”, “clear and convincing evidence”, “preponderance of the evidence”, “substantial evidence” or even “rational basis.”

Here, considering the student’s below grade performance and the failure of the DOE to timely provide the student with an IEP and further delayed the implementation of said IEP, combined with a finding of a three year “gross” violation of FAPE, compensatory services are certainly appropriate. Additionally, the need for the neuropsychological exam and the reliance of the exam to evaluate the student rn The Parents evidence shows that the student’s unilateral placement school provides individualized instruction, and the students has progressed during her time there as per the Parents witnesses and documentation submitted into evidence of the students’ progress reports and report card. (M,N,O,V,W,X)

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 benefits." (See Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003]) (emphasis added) This standard is well below those other standards of review in the law such as “beyond a reasonable doubt”, “clear and convincing evidence”, “preponderance of the evidence”, “substantial evidence” or even perhaps “rational basis.” The record, as accurately summarized by the parties above and adopted in this decision and order, supports a finding that the decision to place the student at the private school was” reasonable” as an appropriate placement for the student’s 2019-2020 and 2020-2021 school year.

Whereas, accordingly, I find that the Parent is entitled to the reimbursement for the evaluation and tutoring services and I will also exercise my discretion under 34 C.F.R. 300.502(d) and 8 NYCRR 200.5(i)(3)(vi) and order the DOE to conduct its own evaluations regarding any areas of suspected disabilities that the student may have; and, which the Parent may subsequently agree or disagree with; and

There is nothing in the record that support a finding that the Parent has not cooperated with the DOE.

NOW therefore, it is hereby

ORDERED that the DOE denied the student a FAPE for the 2018-2019, 2019-2020 and 2020-2021 school year and that upon its receipt of reasonably satisfactory proof of services having been rendered, the DOE shall reimburse the Parent or pay directly for the cost of the student’s tuition and related services at the private school for the time the student attended the private school during the 2019-2020 and 2020-2021 school year; and it is further

ORDERED that the DOE shall within thirty (30) days of the date of this order reimburse the parent $4,500 for the neuropsychological evaluation conducted by the Parent.

ORDERED that the DOE shall within thirty (30) days of the date of this order reimburse the parent for the cost of the private tutoring services incurred in the amount of $10,680.00.

ORDERED that within 30 days of the completion of all of the evaluations the CSE shall forthwith reconvene to produce a new IEP for the student that considers all of the student’s available evaluations and any related information and produce a new IEP for the student’s 2022-2023 school year; and it is further

ORDERED that any of the other relief sought by the Parent not addressed by this “Final Order” is found to be either resolved by the parties, withdrawn by the Parent, outside the scope of the IHO’s authority or unsupported by the record.

Sharifa Milena Nasser

DATED: November 24, 2022 _____________________________

Queens, New York Sharifa Milena Nasser - I.H.O.

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 L[2nd PRIVATE SCHOOL INITIALS] 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. (Rev. 07/09/20)