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Special Education Law
DECISIONParent PrevailedIHO Case No. 211086

New York City Department of Education, Impartial Hearing Decision

January 17, 2022·Anjelica Cappellino·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.

CASE NUMBER: 554983 - NYC: 211086

FINDINGS OF FACT AND DECISION

Case No.: 211086

Student’s Name: [REDACTED]

(hereinafter referred to as “Student”)

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Request by: [REDACTED]

(hereinafter referred to as “Parent”)

Hearing Dates: December 9, 2021

Record Close Date: December 23, 2021

Hearing Officer: Anjelica Cappellino

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 9, 2021

For the Student:

[REDACTED], Attorney

[REDACTED], Parent

[REDACTED], Interpreter

For the Department of Education:

[REDACTED], District Representative

INTRODUCTION

This matter comes before the undersigned hearing officer (“IHO”) through the Parent’s Due Process Complaint (“DPC”) filed on July 13, 2021. See P-Ex. A.[1] The Parent is asserting that the New York City Department of Education (“the District”) did not provide the Student with a free appropriate public education as required under the Individuals with Disability Education Act (“IDEA”) for the 2018/2019, 2019/2020, 2020/2021 and 2021/2022 school years.

PROCEDURAL HISTORY

The undersigned Impartial Hearing Officer was appointed to the above matter on July 13, 2021. A prehearing conference was held on October 7, 2021, following a status conference on November 11, 2021. The hearing was conducted on December 9, 2021 and the entirety of the proceeding was interpreted by a Spanish translator at the request of the Parent. The Parent presented Exhibits A through P[2], which were admitted into evidence, as well as the testimony of two witnesses. The District did not put forth a case, admit evidence, present witnesses, give an opening or closing statement, or submit a post-hearing brief. The Parent submitted a post-hearing brief, which was received by the undersigned Impartial Hearing Officer on December 22, 2021. See IHO-Ex. I.

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

  • • For a finding that the District failed to provide a free appropriate public education (“FAPE”) to the Student for the 2018/2019, 2019/2022, 2020/2021 and 2021/2022 school years;
  • • For the Committee on Special Education (“CSE”) to reconvene for a meeting and develop an Individualized Education Plan (“IEP”) that recommends placement of the Student in [REDACTED] - a non-public, state-approved school;
  • • For the District to reimburse [REDACTED] in the sum of $6,500 for its previously conducted neuropsychological evaluation;
  • • Compensatory services in the amount of 2,520 hours of 1:1 evidence-based academic remediation;
  • • Door-to-door special transportation services to and from the Student’s school for the 2021/2022 school year;
  • • Reimbursement for the cost of breakfast and lunch during school days during the 2021/2022 school year; and
  • • An order directing the District to translate the Student’s future IEPs into Spanish;

FINDINGS OF FACT

The Student’s Background and History The Student is [REDACTED] years old and has been most recently diagnosed with a language disorder, a specific learning disorder with impairments in reading, written expressions, and mathematics, and attention deficit hyperactivity disorder (hyperactive/impulsive presentation) per a recent neuropsychological evaluation. See P-Ex. J, Independent Neuropsychological Evaluation Report, March 2021, at 14-15. The Student is currently classified by the Department of Education with an emotional disturbance. See P-Ex. F, January 24, 2020 IEP at 1.

Pursuant to an IEP dated February 6, 2018, the Student was previously classified with a learning disability. See P-Ex. B, February 6, 2018 IEP at 1. The IEP indicated that the Student, who was in third grade at the time, was functioning on a first grade academic level. Id. As such, the IEP recommended a 12:1:1 special education classroom with continued speech and language therapy three times a week for 30 minutes (one group session and two individual sessions). Id. at 9. A 12-month program was not recommended nor were any special transportation accommodations noted. Id. 9; 11-12. The indicated spoken language/mode of communication of the Student’s parent was English. Id. at 12.

The next IEP was conducted on March 22, 2019 and continued to document the Student’s disability classification as a learning disability. See P-Ex. C, March 22, 2019 IEP at 1. The Student’s academic and cognitive skills assessments were mostly indicated in the “very low” ranges and it was determined that he was reading on a grade K reading level and at a grade 2 in mathematics. Id. at 1-3. The IEP indicated that the Student would become “easily agitated with his classmates” and would throw items at them. The Student was further described as a “runner,” as he would run out of the classrooms. The Student was described as being “unable to self-monitor and self-regulate his behavior at this time.” Id. at 3. The Student was deemed as “overall cooperative” during his speech and language services, but “[b]ecause of his unpredictable behavior patterns and emotional swings, he requires constant attention and supervision.” Id. at 5. Like the previous year’s IEP, a special education classroom in a 12:1:1 setting was recommended. Id. at 16-17. The IEP recommended continued speech and language therapy twice a week for individual sessions. Id.at 5; 16-17. The IEP did not address why it was no longer recommending group services. Counseling services, once a week for 30 minutes in a group setting, were also recommended. Id. at 17. Like the previous year’s IEP, no special transportation services were noted. Id. at 20; 22.

Later that year, on December 10, 2019, the Student’s Parent signed a consent form to permit the District to conduct additional testing and assessments to determine the Student’s continued need for special education and related services. See P-Ex. D, Assessment Planning Form, at 1. Per a translated affidavit signed by the Parent, the Student had been experiencing ongoing bullying since the third grade and throughout the 2018/2019 school year, the Student’s school regularly contacted the Parent to pick up the Student partway through the day “because his reactions to bullying were too difficult to manage.” Id. P-Ex. P, Parent Affidavit, at 1.

The last IEP was conducted on January 24, 2020 and had changed the Student’s classification from learning disability to emotional disturbance. See P-Ex. F, January 24, 2020 IEP, at 1. The IEP indicated that the Student’s cognitive functioning, language skills, working memory, and general intellectual ability were low. Id. As described in the IEP: “[a]cademically, according to his teacher, [the Student]’s attention span is short...He rarely completes classwork, homework, and attends to classes.” Id. In addition, the Student continued to perform very low on ELA and math assessments, testing at Kindergarten levels. Id. 1-2.

As the IEP further describes:

[The Student] is easily frustrated when pressed to do classwork and will respond by kicking his desk, hitting the laptop, throwing his books, ripping his paperwork, and throwing his chair. He will also tear down classroom chart, tear apart math manipulatives and scissors. [The Student] refuses to copy his homework, complete class assignments, and participate in classroom discussions. [The Student] does not complete class assignments on a regular basis in spite when working one on one with his teacher. [The Student] has difficulty sustaining attention to learning tasks which in turn impacts his ability to acquire, remember, and generalize new knowledge and skills.

Id. at 2.

According to the IEP, the Student’s “behavior has steadily declined over the past several months and is becoming increasingly concerning since it currently interferes with his ability to learn and do school work.” Id. at 4. The Student is also physically aggressive with others.

As with the previous IEP, this most recent IEP recommended a 12:1:1 special education classroom, individual speech and language therapy twice a week, group counseling once a week, and individual “school social work” once a week. Id. at 21. It also states that the Student is eligible to receive a 12-month program. Id. The need for door-to-door special transportation accommodations is indicated. Id. at 24; 26.

None of the aforementioned IEPs were provided to the Parent in Spanish, which is the Parent’s native language. P-Ex. P at 1.

Shortly after the last IEP, the Student shifted to remote learning due to the COVID-19 pandemic but experienced difficulties with remote learning. See P-Ex. L, June 15, 2021 Letter from Parent to REDACTED, Committee on Special Education for District 7, at 1. For the 2020/2021 school year, the Student was transferred to a District 75 program where he attended sixth grade. The placement notice for this school was sent to the Parent in August 2020. The Parent was concerned with what she saw during the remote tour of the school and requested a different placement. Id. 1-2. The Parent states in the above letter that the District never replied to her request and that she repeatedly sought for a different placement throughout September and October 2020 but was ultimately advised that the District was not offering any other placement. Id. at 2. The Parent indicated that the Student was unable to access his remote instructional placement and that the iPad provided to the District did not connect to the internet. The Student remained remote until April 26, 2021 but for the vast majority of the school year, the placement “failed to implement many of [the Student’s] related services.” Id.

The Independent Neuropsychological Evaluation

According to the Parent, on December 8, 2020, she requested a bilingual neuropsychological evaluation and “[s]ince the [District] did not respond, we referred him for a private neuropsychological evaluation in the spring of 2021.” P-Ex. L at 2; See also P-Ex. P at 1. The Parent sent the request via email to [REDACTED] with the Student’s name and OSIS number in the subject line. See P-Ex. G, December 8, 2020 Email at 1. The email is written entirely in Spanish and no corresponding translation was provided.[3] The Parent appeared for the hearing in the instant matter and testified under oath, with the assistance of a Spanish interpreter, that her email stated, in sum and substance:

I am writing to you to…request…an authorization for an evaluation, an independent neuropsychological evaluation [for the Student]. [The Student] has demonstrated a variety of disabilities and problems that are known to be causing his academic difficulties and how to remedy them. I know that you can use the list of the providers who find a neuropsychologist, and this will [be] difficult if I don’t receive an answer by December 21, 2020. I would like to find my own provider and request the reimbursement.

Tr. 78.

The Parent testified that she obtained the recipient email address based on her own research concerning the notice requirements of obtaining an independent evaluation, and that she never received a response. Tr. 79. The Parent subsequently brought the Student to [REDACTED]for a bilingual neuropsychological evaluation in March 2021, which cost $6,500. See P-Ex. K, May 24, 2021 invoice from [REDACTED]. Per the Parent’s affidavit, she still owes $6,500 and “could not afford to pay upfront” so she is “seeking retroactive direct payment.” See P-Ex. P at 2. Once the Parent received the evaluation report, she did not provide it to the District. Tr. 81. In the Parent’s June 15, 2021 letter to REDACTED of the District 7 Committee on Special Education, which also serves as notification of the Parent’s intention to unilaterally place the Student in another setting, the Parent stated that she requested a neuropsychological evaluation on December 8, 2020 and then subsequently obtained a private evaluation when the District failed to respond. See P-Ex. L at 1. The Parent submits an email receipt notice from 10daynoticeCSE7@schools.nyc.gov to Parent’s counsel on June 15, 2021. See P-Ex. M, June 15, 2021 Email, at 1.

The neuropsychological evaluation was conducted on March 4th, 9th, 11th, and 19th of 2021 and a report was subsequently generated. See P-Ex. J, Neuropsychological Evaluation, at 1. The Student was seen for one teletherapy session for two hours and one in-person session for five hours. Id. at 4. Based on testing assessments, the Student’s “intellectual abilities ranged from the below average to average range.” Id. at 5. Specifically, the Student’s “verbal knowledge and reasoning skills were considerably less developed as compared to same-aged peers” and his “nonverbal reasoning abilities measured below expectations overall.” Id. at 6-7.

His executive functions were assessed using behavior rating scales completed by the Parent and performance-based measures. Id. at 7. During a phone conversation with one of the Student’s teachers, the teacher “expressed that despite his efforts to participate, [the Student] struggled to engage in remote learning as he was distractible and had difficulty concentrating.” Id. at 8. The Parent also “endorsed that [the Student] has some challenges with executive functioning,” such as adjusting to changes, switching between tasks, sustaining working memory, resisting impulses or considering consequences before acting.” Id. The Student’s attention was assessed via informal observation and quantitative measures, scoring outside of average ranges on certain inattention measures. Id. at 8. The Student’s processing speed - his ability to scan visual material quickly and correctly - was compromised overall. Id. at 9. His verbal fluency skills - the ability to produce words quickly - “were highly variable.” Id. His ability to engage in planning and problem solving “was below that of his same-aged peers…” Id. at 10.

In terms of academic achievement, the Student “demonstrated significant challenges with basic aspects of reading, with performances across tasks falling at the equivalence of a kindergarten level.” Id. at 11. When comparing his reading, writing, and spelling performance to his performance during a 2018 evaluation, it was deemed that he has not made progress. Id. The Student’s math skills were also deemed below average. Id. at 12.

Overall, the clinical summary of the evaluation diagnosed the Student with a Language Disorder, Attention Deficit-Hyperactivity Disorder, Hyperactive/Impulsive presentation, and a Specific Learning Disorder in Reading, Written Expression and Mathematics. Id. at 13-14. The evaluation recommended that the Parent organize a meeting to discuss these results and that based on the evaluation, the Student’s present disability classification of Emotional Disturbance is unwarranted. During the reported phone conversation, the Student’s teacher “denied the presence of any behavioral issue over the past year” and “that any reported negative behaviors were the result of his persistent exposure to bullying.” Id. at 15. As the evaluation recommends, “a classification of Learning Disabled is more appropriate as it better reflects his profile of severely underdeveloped academic abilities which are above and beyond what could be attributed to language and executive function difficulties.” Id.

In regard to educational placement, the evaluation concludes that “it is likely that [the Student’s current placement] is serving students whose needs differ substantially from circumscribed difficulties with language and learning” and that the Student “is not presently receiving the evidence-based services required to address his current needs.” Id. The evaluation finds that the Student requires a small, “supportive, structured, language-enriched classroom placement housed within a special education school” with “the full-time provision of [a] multi-sensory learning environment for children with language disorders…” and in a “highly structured setting with attention and executive functioning supports that will minimize distractibility.” Id. at 15-16. In addition to other recommendations, the evaluation states that the Student’s teacher “should be trained to work with students who have language, learning, and executive functioning difficulties and be able to implement evidence-based interventions in the classroom” and the classroom “should offer intensive remediation aimed to bolster his language and attention skills, and that target his specific learning disabilities in reading, writing, and math.” Id. at 16. The evaluation recommends continued educational programming throughout the summer in an intensive remediation program in order to build reading, writing, and math skills.

In terms of related services, the evaluation recommends “academic support from a learning specialist trained in research-based practices to help him achieve a meaningful rate of progress,” and greater support to address his significant language delays, including an updated speech and language therapy evaluation and continued services. Id. An occupational therapy evaluation and services were recommended to address “underlying attentional and executive functioning needs within the context of his learning and language diagnoses.” Id. at 17. Individual and group counseling services, as well as parent counseling and training, were also recommended. Id.

Among many other recommendations, the evaluation also specifies the need for intensive, individualized and evidence-based remediation outside of school to address his minimal progress. Id. at 18.

Placement at [REDACTED] The Student remained in public school for the entirety of the 2020/2021 school year and continues to remain in public school at present.

As [REDACTED], a school psychologist and the coordinator of pupil personnel services at [REDACTED], testified: the school is a state-approved, non-public school that serves students classified with learning disabilities, speech or language impairments, other health impairments, and emotional disturbances. Tr. 66. The school is a 12-month program and offers class sizes ranging from 6:1:1, 8:1:1, and 12:1:1, with students broken into small groups for academic instruction. Tr. 66. The school provides occupational therapy, speech and language therapy, physical therapy, and counseling, and the school also works with students on social development through its Second Steps social skills programming. Tr. 66-67. In terms of academic curriculum, [REDACTED] offers multisensory instruction and interactive, computer-based programs focused on “targeting even further the gaps that are within core academic areas of students.” Tr. 68. Supplemental supports, in the form of graphic organizers, anchor charts, or visual or auditory presentations of information are also available dependent upon the students’ needs. Tr. 69.

As [REDACTED] further testified, class size is partially based on age with 6:1:1 for kindergarten to 4th grade, 8:1:1 for 5th through 6th grade, and 12:1:1 for students in 7th and 8th grade. However, “within those class groupings, the following factors are used to determine student placement: that’s the student age, their chronological grade, their academic functioning levels in reading and math, and their social-emotional development.” Tr. 70.

[REDACTED] conducted a remote screening with the Parent and then conducted a follow-up and in-person tour with the Parent and Student. Tr. 71. As [REDACTED] explained: “it was determined by our team that in terms of the admission consideration process that [the Student] was found to be appropriate in order to consider an offer for placement.” Tr. 71-72. Ultimately, the Student was offered acceptance into [REDACTED] for the 2021/2022 school year, as evidenced by an admissions acceptance letter signed by [REDACTED]. See P-Ex. O, [REDACTED] Acceptance Letter, dated December 2, 2021, at 1. As detailed in the letter, the Student’s offered placement would be in a 12:1:1 class size, with related services including counseling and speech. The letter further states that the Student’s placement is “pending funding being secured through NYC Department of Education Central Based Support Team (CBST) approval of a non-public school placement.” Id. As [REDACTED] further explained in her testimony, students are only able to attend the school if they were deferred through CBST and added onto the certified monthly register. Tr. 73.

Compensatory Services The request for compensatory services in the amount of 2,520 hours of 1:1 evidence-based academic remediation is based on the neuropsychological evaluation’s findings that the Student is functioning at much lower grade levels than his present 7th grade year, specifically five to seven year gaps across his academic achievement. Tr. 42; 93. The number of hours is based on 20 hours per week, for 126 weeks (or three 10-month school years). Tr. 93. The Parent argues that she does not have the resources “to pin down a specific number further.” Tr. 93. In the alternative, the Parent requested an interim order for funding of a tutoring assessment. The request was denied. Tr. -94-95.

CONCLUSIONS OF LAW AND DECISION

Applicable Law The Individuals with Disabilities Education Act (“IDEA”) offers States federal funds to assist in educating children with disabilities. 20 U.S.C. § 1400 et seq.; See Arlington Central School Dist. Bd. of Ed. v. Murphy, 548 U.S. 291, 295 (2006). In exchange for the funds, a State pledges to comply with a number of statutory conditions. Among them, the State must provide a free appropriate public education—a FAPE, for short—to all eligible children. § 1412(a)(1); Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988, 993 (2017). A “free appropriate public education consists of educational instruction that is designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child to benefit from the instruction.” Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 188 (1982).

A FAPE, as the Act defines it, includes both “special education” and “related services.” § 1401(9). “Special education” is “specially designed instruction... to meet the unique needs of a child with a disability,” while “related services” are the support services “required to assist a child... to benefit from” that instruction. 20 U.S.C. §§ 1401(26), (29). A State covered by the IDEA must provide a disabled child with such special education and related services “in conformity with the [child's] individualized education program,” or IEP. 20 U.S.C. § 1401(9)(D); Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. at 994.

The individualized education program is “the centerpiece of the statute's education delivery system for disabled children.” Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. at 994 (quoting Honig v. Doe, 484 U.S. 305, 311 (1988)). A comprehensive plan prepared by a child's “IEP Team” must be drafted in compliance with a detailed set of procedures enumerated in 20 U.S.C. § 1414(d)(1)(B). The IEP is the means by which special education and related services are tailored to the unique needs of a particular child.  Rowley, 458 U.S., at 181, 102 S.Ct. 3034.

The IDEA requires that every IEP include “a statement of the child's present levels of academic achievement and functional performance,” describe “how the child's disability affects the child's involvement and progress in the general education curriculum,” and set out “measurable annual goals, including academic and functional goals,” along with a “description of how the child's progress toward meeting” those goals will be gauged. 20 U.S.C. §§ 1414(d)(1)(A)(i)(I)-(III). The IEP must also describe the “special education and related services... that will be provided” so that the child may “advance appropriately toward attaining the annual goals” and, when possible, “be involved in and make progress in the general education curriculum.” § 1414(d)(1)(A)(i)(IV). Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. at 994; See also 8 N.Y.C.R.R. 200.4(d)(2)(i)-(v).

In order to demonstrate that FAPE is being provided, the school district must show “that it complied with the procedural requirements set forth in the IDEA, and that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits.” Rowley, 458 U.S. at 206; See also Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. at 1001 (“The IDEA demands more. It requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances.”). Under New York law, the school district “shall have the burden of proof, including the burden of persuasion and burden of production” in an impartial hearing challenging whether FAPE was provided. NY Educ. Law § 4404.

Although courts may not award damages for violations of the IDEA, Polera v. Bd. of Educ., 288 F.3d 478, 486 (2d Cir. 2002), they may award retrospective and prospective equitable relief, including reimbursement of paid expenses, compensatory education, and other declaratory and injunctive relief. Doe v. E. Lyme Bd. Of Educ., 790 F.3d 440, 454 (2dCir. 2015). Compensatory education is “prospective equitable relief, requiring a school district to fund education beyond the expiration of a child's eligibility as a remedy for any earlier deprivations in the child's education.” Somoza v. N.Y.C. Dep't of Educ., 538 F.3d 106, 109 n.2 (2d Cir. 2008). In other words, compensatory education aims to make up for educational services the child should have received in the first place. Doe v. E. Lyme Bd. of Educ., 962 F.3d 649, 659 (2d Cir. 2020).

Discussion

The District did not defend its failure to offer a free appropriate public education to the Student for the 2018/2019, 2019/2020, 2020/2021 and 2021/2022 school years. Tr. at 35-36. Therefore, an analysis and independent determination of whether the District offered a FAPE is unnecessary. The District did not meet its obligations under the IDEA nor did it present any evidence or witnesses to the contrary. The only remaining inquiry, given the District’s concession, is to address the remedy.

  • • Non-Public Placement at [REDACTED] Firstly, the record was persuasive in establishing the Student’s needs for a non-public school placement, in light of his documented failure to progress, academically and otherwise, in each year’s IEP. Per the [REDACTED] acceptance letter and the testimony of their coordinator of pupil personnel services, the school is able meet his various needs, including but not limited to, an extended year program[4], academic supports, counseling, and speech and language services. Tr. 66-67; See P-Ex. O. [REDACTED] offerings are also in line with the recommendations in the neuropsychological evaluation, which include “a multi-sensory learning environment for children with language disorders…” a “highly structured setting with attention and executive functioning supports that will minimize distractibility,” and “intensive remediation aimed to bolster his language and attention skills, and that target his specific learning disabilities in reading, writing, and math.” Id. at 15-16.

The District does not contest that an IEP should reconvene to address the Student’s acceptance from [REDACTED] nor put forth any evidence that this would be an inappropriate placement.

Based upon the Student’s previous IEPs and the neuropsychological evaluation, including the student’s diagnoses which are contradictory to his current classification of emotional disturbance, it is evident that his current placement and classification are inappropriate and that [REDACTED] can offer him supports and related services more tailored to his needs. As such, I find that an IEP meeting should reconvene to 1) change his disability classification to reflect the findings of the neuropsychological evaluation; 2) confirm the Student’s acceptance at [REDACTED] and his needs for a 12-month program; and 3) to defer the case to the CBST to ensure he is immediately placed at [REDACTED].

  • • Compensatory Services The District does not contest the Parent’s compensatory service request for 2,520 hours of 1:1 evidence-based academic remediation, based on a calculation of 20 hours per week for the last three 10-month school years. Tr. 93. The request is meant to address the Student’s deficits, which range from five to seven years’ worth of academic gaps. Tr. 93. The Parent concedes that this estimation was made without an official assessment. Tr. 94. The Student’s neuropsychological evaluation does not provide an estimate of needed services, but notes that because the Student continues to perform several years below his grade level in reading, writing, and mathematics, he requires individualized or small group academic support from a learning specialist. See P-Ex. J at 16. The District offered nothing in opposition and presented no evidence on this issue.

The calculation of compensatory services should focus on the Student’s needs. Although “some students may require only short, intensive compensatory programs targeted at specific problems or deficiencies,” “[o]thers may need extended programs, perhaps even exceeding hour-for-hour replacement of the time spent without FAPE.” Reid v. District of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005).

By requesting 20 hours per week (or five hours per school day) as an appropriate remedy to make the Student whole, the Parent, in essence, is alleging that the majority (though not the entirety) of the Student’s school day during the years in question needs to be replaced. In light of the evidence on record, this less than hour-for-hour calculation is reasonable. The Student had not just failed to progress each academic year, but he also appears to have regressed at a rate quicker than any progression made, as evidenced by his current functioning at kindergarten levels. See P-Ex. F at 1-2; P-Ex. J at 11. Even within the course of one school year, his behavior was reported to have “steadily declined over the past several months.” See P-Ex. F at 4. Likewise, there is evidence that the Student was not physically in the classroom for a portion of the day, as he was deemed a “runner” in a previous IEP, and would frequently leave the classroom. See P-Ex. C at 3. As noted by the Parent, she oftentimes had to pick up the Student halfway throughout the school day due to his reactions from bullying. See P-Ex. P at 1.

Although the Parent offers no testimony that 20 hours per week, for three school years, is a specific calculation that will make the Student whole, it is a reasonable estimate that 20 hours per week (or five hours per school day) of one-on-one evidence-based academic remediation can compensate for previously missed instruction stemming from the Student’s inappropriate placement and subsequent physical absences from the school itself. Therefore, I find it reasonable and appropriate for the District to fund the requested compensatory services of 2,520 hours of one-on-one, evidence-based academic remediation.

  • • Independent Neuropsychological Evaluation Payment A school district must conduct an evaluation of a student where the educational or related services needs of a student warrants a reevaluation of if the student’s parent requests one. 34 CFR § 300.303(a)(2); 8 NYCRR § 200.4(b)(4). A district need not conduct a reevaluation more frequently than once per year unless the parent and the district otherwise agree and at least once every three years unless the district and the parent agree in writing that such reevaluation is unnecessary. The IDEA provides numerous procedural safeguards to protect the due process rights of students and parents, which include the opportunity for parents to obtain an independent educational evaluation of the student. 20 U.S.C. § 1415(b)(1). Under 8 NYCRR § 200.5(g), if a parent disagrees with a district’s evaluation or re-evaluation of the student, the parent has the right to request an evaluation at public expense. Upon notice from the parent, the district, then, must, without unnecessary delay, either agree to pay for the evaluation or initiate an impartial hearing to demonstrate that the district’s own evaluation is appropriate or that the evaluation obtained by the parent does not meet the district’s criteria. 8 NYCRR § 200.5(g)(iv).

Despite the Student’s severe deficits, the District failed to conduct any updated evaluations and continued to recommend the same services as it had in the past. The record makes clear that the District had not evaluated the Student in all suspected areas of need and accordingly, the Parent was entitled to an independent neuropsychological evaluation. The District did not contest the Parent’s substantive right to an independent evaluation nor present any evidence that the evaluation was inappropriate in any respect. It appears the District is contesting the validity of the Parent’s December 8, 2020 email request for a neuropsychological evaluation, noting that it is in Spanish and that the Parent did not provide an email receipt confirmation that the email was, in fact, received. Tr. 55; See also P-Ex. G. The District, however, presented no evidence that the Parent’s email request, was not received or that the email address, [REDACTED], was the inappropriate or incorrect contact for such a request. It is unclear whether the District is alleging that they did not receive the notification, or as a matter of evidentiary proof, they are simply arguing the email does not prove the District received it. Without more, I find that the Parent utilized the appropriate means, which involved their own research to obtain the necessary contact information, to reach out the someone from the District and notify them of their intention to obtain an evaluation. Tr. 79.

The District also appears to object to the contents of the notification on the basis that the email is in Spanish. Tr. 55. The Parent appeared in person and testified under oath as to its translation, namely, that the emailed requested “an authorization” for an independent neuropsychological evaluation from the school’s list of providers, but if the school does not respond by December 21, 2020, the Parent would like to find her own provider and seek reimbursement. Tr. 78. The District made no objection to the Parent’s testimonial reading of the email, nor sought to argue that her email, which was translated by our hearing’s interpreter under oath, was an inaccurate representation of its contents. Likewise, there was no argument that the Parent’s email failed to meet its notice requirements under 8 NYCRR § 200.5(g). To the extent that the District objects to the email because it is written in Spanish, the implication of that argument would be that all parent notifications must be in English in order to be considered sufficient. Such arguments are without merit. Upon the Student’s denial of FAPE and the District’s failure to properly evaluate him in all suspected areas of need, the Parent took reasonable efforts to notify the District of her intent to obtain an independent evaluation if the District failed to conduct one. Therefore, the request for direct payment to the neuropsychological evaluation provider, [REDACTED], in the amount of $6,500, is reasonable and appropriate.

  • • Specialized Transportation Transportation is a related service as defined by 34 CFR §300.34(c)(16) of the IDEA regulations and must be provided to a student with a disability if necessary for the student to benefit from special education, a determination which must be made on a case-by-case basis by the CSE. District of Columbia v. Ramirez, 377 F. Supp. 2d 63 (D.D.C. 2005).

The most recent IEP of January 24, 2020 indicated the Student’s need for door-to-door special transportation accommodations. See P-Ex. F at 24; 26. The District offers no evidence to contradict this need. Therefore, I find that the Student is entitled to transportation to and from school for the 2021/2022 school year.

  • • Translated IEPs in the Parent’s Language Under 34 CFR § 300.322(e), the district must take whatever action is necessary to ensure that the parent understands the proceedings of an IEP meeting, including arranging for an interpreter for parents whose native language is one other than English. Likewise, IDEA requires that certain notices are provided to the parent in their native language, unless clearly not feasible to do so. See 20 U.S.C. § 1415(b)(4); 20 U.S.C. § U.S.C. § 1415(d)(2); 34 CFR § 300.503(c). Although there is no comparable requirement under IDEA that IEPs must be translated, a voluntary resolution agreement entered into by the District, effective September 1, 2020, requires that schools must provide IEP translations, upon request, in certain languages.[5]

It is uncontested that the Parent’s native language is Spanish, that the Student’s previous IEPs incorrectly identified the Parent as English speaking and as such, were not translated into Spanish. See P-Ex. B at 12; P-Ex. P at 1. Therefore, the Parent’s request for future IEPs to be translated into Spanish is appropriate and reasonable.

Any other requests for relief have been denied for lack of evidence in the record.

ORDER

Based upon the Findings of Fact, the District failed to offer a free appropriate public education for the 2018/2019, 2019/2020, 2020/2021, and 2021/2022 school years. It is hereby:

1) ORDERED that the Committee on Special Education shall reconvene immediately, by no later than two weeks from this Order, to prepare an Individualized Education Program that reflects: 1) a disability classification that is consistent with the Student’s diagnosis as stated in the independent neuropsychological evaluation; and 2) the Student’s acceptance and immediate need for referral to the CBST for placement at [REDACTED], a non-public, state-approved school that is an appropriate placement to meet his needs; and it is further

2) ORDERED that the District shall directly fund compensatory one-on-one, evidence-based academic remediation services by a learning specialist in the amount of 2,520 hours, with no expiration; and it is further

3) ORDERED that the District shall directly pay $6,500 to [REDACTED] for its previously conducted March 2021 neuropsychological evaluation; and it is further

4) ORDERED that the District shall directly provide door-to-door transportation services for the Student’s travel to and from his school placement; and it is further

5) ORDERED that the District provide the Parent Spanish translations of all future IEPs.

SO ORDERED

DATED: January 17, 2022

Impartial Hearing Officer

Anjelica Cappellino, Esq.

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

Parent’s Evidence

Exhibit Date Pages

A Impartial Hearing Request 7/13/21 8

B Individualized Education Program 2/6/18 13

C Individualized Education Program 3/22/19 23

D Assessment Planning Consent Form 12/10/19 1

E W-2 2019 1

F Individualized Education Program 1/24/20 27

G Email to CSE: Request for Independent Evaluation 12/8/20 1

I Text Correspondence with Teachers 2/6, 2/10, 2/22/21 4

J Neuropsychological Evaluation 3/9-3/19/21 23

K Invoice for Neuropsychological Testing 5/24/21 1

L Ten-Day Notice 6/15/21 2

M Ten-Day Notice Confirmation 6/15/21 1

N NYSED Memorandum June 2021 8

O [REDACTED] Acceptance Letter 12/2/21 1

P [REDACTED] Affidavit of Testimony 12/2/21 2

IHO’s Evidence

I Parent’s Post-Hearing Brief 12/22/21 10

Footnotes

[1] Parent's exhibits are collectively referred to as "P-Ex.".

[2] As stated on the record, Exhibit H, an article from “Chalkbeat,” was not admitted into evidence by the undersigned Impartial Hearing Officer, as it was found to be cumulative in nature. Tr. 61.

[3] The District objected to the admission of this exhibit on this basis and that there is no return receipt to ascertain whether this was the “document that has gone to the student’s school and has been received.” Tr. 55.

[4] A 12-month program was recommended in the last IEP. See P-Ex. F at 21.

[5] https://www.nylpi.org/wp-content/uploads/2021/01/Resolution-Agreement.pdf