Skip to main content
Special Education Law
DECISIONParent PrevailedIHO Case No. 216705

New York City Department of Education, Impartial Hearing Decision

May 28, 2022·Jean Marie Brescia·v. Carter, 510 U.S. 7 (1993).

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

CASE NUMBER: 560751 - NYC: 216705

FINDINGS OF FACT AND DECISION

Case Number: 216705

Student’s Name: [REDACTED]

Hearing Requested By: Parent

Dates of Hearing: January 27, 2022

February 4, 2022

March 14, 2022

March 24, 2022

Actual Record Close Date: May 14, 2022

Hearing Officer: Jean Marie Brescia, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

January 27, 2022 For the Parent:

[REDACTED], Esq.

For the Department:

[REDACTED], Esq.

February 4, 2022 For the Parent:

[REDACTED], Esq.

[REDACTED], Evaluator, Career Employment Options

[REDACTED], Executive Director, Exceptional Learner Services For the Department:

[REDACTED], Esq.

March 14, 2022 For the Parent:

[REDACTED], Esq.

[REDACTED] [REDACTED], Parent

[REDACTED] [REDACTED], Parent For the Department:

[REDACTED], Esq.

[REDACTED], CSE School Psychologist

[REDACTED], School Principal, [REDACTED]

March 24, 2022 For the Parent:

[REDACTED], Esq.

[REDACTED] [REDACTED], Parent

Dr. [REDACTED], Clinical Psychologist

[REDACTED], Educational Supervisor, [REDACTED] School For the Department:

[REDACTED], Esq.

On January 19, 2022, I was designated as impartial hearing officer, pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1415(f), in the matter of [REDACTED] [REDACTED] [REDACTED], after the appointment of another hearing officer was rescinded. [REDACTED]’s parent requested the hearing on September 13, 2021 in order to seek an independent educational evaluation at public expense (“IEE”), reimbursement for tuition at the [REDACTED] School for the 2021-2022 school year, transportation and compensatory services (Parent’s Ex. A).

A pre-hearing conference was conducted on January 27, 2022. A hearing with respect to a request for IEEs was conducted on February 4, and an Interim Order was issued denying the IEE request because [REDACTED]’s parent had previously obtained an IEE subsequent to the DOE’s most recent evaluation of [REDACTED]. The hearing on the merits was conducted on March 14 and March 24, 2022.

The parties made joint applications on the record for extensions of the compliance dates. The applications were granted by Orders of Extension dated February 4, March 14 and March 23, 2022. The record closed on May 14, 2022, upon the hearing officer’s review of the parties’ post-hearing briefs, and the Actual Record Close Date is May 14, 2022.

Appended to the record are the names of the persons who appeared at the hearing and a list of the documents entered into evidence.

Findings of Fact

  • • [REDACTED] is a [REDACTED]-year-old young man whose disability, for the purposes of the IDEA, is classified as autism. Ex. 2 at 1.
  • • He is diagnosed with an [REDACTED], [REDACTED] in [REDACTED], [REDACTED] with weakness in [REDACTED, [REDACTED] with weakness in [REDACTED], [REDACTED] and [REDACTED]. Ex. J at 3, 24.
  • • [REDACTED] received services through Early Intervention and preschool. He entered kindergarten in a 12:1:1 special class with a paraprofessional. Ex. J at 5.
  • • [REDACTED] attended a 12:1:1 special education class in a public middle school, [REDACTED]. Exs. 5, 6.
  • • [REDACTED] currently attends [REDACTED] School in Manhattan. He is an [REDACTED]-grade student. Ex. A at 1. He has attended [REDACTED] since 2018. Tr. 171.
  • • [REDACTED] is a private kindergarten through grade 12 special education school serving children with “language, learning, attention and social differences.” Ex. O.
  • • At the request of [REDACTED]’s parents, the Department conducted an evaluation of [REDACTED] in July 2017. Exs. 4, 5, 6, This evaluation included a social history, Level 1 vocational interview of [REDACTED]’s parent, and a PT School Function Evaluation,
  • • [REDACTED] was a [REDACTED]-grade student at the time that DOE personnel conducted a Level 1 Vocational Interview of [REDACTED]’s parent Ex. 4. During the “interview,”[1] [REDACTED]’s parent indicated that [REDACTED] was interested in computer related jobs and technology and that he needed to improve his math and writing skills and learn ADL, safety, organization, financial management and travel skills (among other life skills). Ex. 4. See also Ex. 5 (Social History).
  • • The PT evaluation notes that it was “based solely on observation and parent report as this evaluation was performed at [REDACTED] during the summer when school was not in session” and that [REDACTED] was able to independently negotiated the school’s stairs and hallways at a “typical pace” and without balance difficulties. Ex. 6 at 3. The evaluation concluded that [REDACTED] should not be recommended to receive PT. Ex. 6.
  • • An IEE at public expense was conducted for [REDACTED] in January 2018. This IEE consisted of a neuropsychological evaluation. Tr. 144; Ex. A at 3..
  • • The DOE convened a meeting on October 21, 2020 to develop an IEP for [REDACTED]. Ex. 2. [REDACTED]’s mother attended the meeting. Tr. 176.
  • • The October 2020 IEP was the IEP in place as the beginning of the 2021-2022 school year. Ex. 2 at 1; Ex. 11 at ⁋ 15.
  • • At the time of the IEP meeting, [REDACTED]’s reading comprehension was at a second-grade level, his decoding was at a [REDACTED]-grade level, his writing was at a second-grade level, and he was functioning at a third-grade level in math. Tr. 82-84; Ex. B at 1-2.
  • • The IEP notes [REDACTED]’s challenges with academics, multi-step directions, fine motor skills, executive functioning, comprehension, writing, and need for prompting to complete his work. Ex. 2 at 1-2.
  • • The IEP also notes progress [REDACTED] made at [REDACTED] during the prior school year, when [REDACTED] was a ninth-grade student: in reading comprehension as demonstrated by answering comprehension questions, in attention to task, in his written work, in social studies, in independence skills in terms of computer use and organizational skills, and in social skills. Ex. 2 at 2-4.
  • • The IEP specifies a list of management needs for [REDACTED]: small group instruction, 1:1 support, graphic organizers, anchor charts, word banks, chunking of material, breading down material into steps, scaffolding, step sheets, reference sheets, previewing material, repetition and review, and positive reinforcement. Ex. 2 at 6.
  • • The IEP includes a section labelled “Measurable Postsecondary Goals.” It states that [REDACTED] likes science and would like to continue schooling past high school, needs to develop social skills and expressive language in order to work with others in the future, and needs to develop ADL skills. Ex. 2 at 7.
  • • The IEP includes annual goals in the areas of reading comprehension (1 ELA goal); math (problem solving skills for addition and subtraction word problems; place value); counseling (identifying 2-3 social cues; self-advocacy); OT (improve copying speed; remaining calm); and speech (requesting clarification of directions and information; answering “WH” questions). Ex. 2 at 8-15.
  • • The speech goal relating to answering “WH” questions supports [REDACTED]’s reading comprehension. Tr. 102
  • • According to the IEP, the programs considered at the October 2020 meeting were 12:1:1 in a community school, 6:1:1 in a [REDACTED] school and 8:1:1 in a [REDACTED] school. Tr. 79-80.
  • • The IEP recommends that [REDACTED] attend an 8:1:1 special class in a [REDACTED] special education school and receive the related services of counseling (one 40-minute session per week 1:1), OT (one 40-minute session per week 1:1), and speech-language therapy (three 40-minute sessions per week 1:1). Ex. 2 at 16.
  • • At the meeting, [REDACTED]’s mother and personnel from [REDACTED] stated that they wanted [REDACTED] in a class setting smaller than eight students because he needs 1:1 support and “constant prompting.” Tr. 178; Ex. B at 23..
  • • The IEP also recommends that [REDACTED]: (a) attend a 12-month program and (b) take City, State and local tests (including Regent’s exams) with accommodations. Ex. 2 at 17-18, 20.
  • • [REDACTED] is a school psychologist employed by the DOE. Tr. 70; Ex. 11. She did not participate in the DOE’s October 2020 meeting to develop an IEP for [REDACTED], nor did she otherwise participate in developing the DOE’s program for [REDACTED] for the 2021-2022 school year. Tr. 74-75. She has not administered testing nor conducted a classroom observation of [REDACTED]; she has participated in prior meetings concerning [REDACTED]. Tr. 75; Ex. 11 at ⁋ 3.
  • • The Prior Written Notice lists the following material as the bases for the development of the IEP: July 2017 PT assessment; July 2017 Social History Update; July 2017 “Vocational Assessment;” and a June 2020 Teacher Report from [REDACTED]. Ex. 8 at 2; Ex. 11 at ⁋ 7; Tr. 91-92.
  • • Ms. [REDACTED] opined that the documents listed in the above paragraph, with teacher input at the IEP meeting, “were sufficient to make an IEP recommendation” for [REDACTED]. Ex. 11 at ⁋ 7.
  • • Ms. [REDACTED] provided the following additional opinions:
  • • The recommended 12-month 8:1:1 program with the mandated related services was appropriate for [REDACTED] because such a program provided him with “the support that is required for his intellectual and social challenges” and “one-to-one support and small group instruction, as well as access to peers that present with similar social, emotional, and academic challenges.” Ex. 11 at ⁋ 10.
  • • The recommended related services are appropriate for [REDACTED], and the related services goals are “sufficient, appropriate, and specific” to address his needs. Ex. 11 at ⁋ 12.
  • • The management needs listed in the IEP reflect [REDACTED]’s needs, and the academic goals are “specific and appropriate for [[REDACTED]] to make academic progress.” Ex. 11 at ⁋ 14.
  • • The recommended program constituted [REDACTED]’s least restrictive environment. Ex. 11 at ⁋ 13.
  • • The IEP includes a chart of “Coordinated Set of Transition Activities.” The column that sets forth who is responsible for providing the services is blank. The services listed include related services to focus on social interaction and working with others, using money, and ADL skills. Ex. 2 at 19.
  • • The IEP does not provide for specialized bus transportation for [REDACTED]. Ex. 2 at 21.
  • • By School Location letter dated January 6, 2021, the DOE informed [REDACTED]’s parents that [REDACTED] was placed at a [REDACTED] school, [REDACTED]. Ex. 8 at 5.
  • • P. [REDACTED] is a DOE [REDACTED] school serving students in grades nine through twelve, provides 12-month programming and includes 8:1:1 classes. Tr. 113, 118.
  • • P. [REDACTED] provides occupational therapy, speech-language therapy, and counseling. Tr. 113-114.
  • • For the 2021-2022 school year, P. [REDACTED] had an available seat for [REDACTED] in an 8:1:1 class and was able to provide his IEP-mandated related services and implement his IEP.. Tr. 114, 121.
  • • On July 26, 2022, [REDACTED]’s parents entered into an enrollment contract with [REDACTED] for the September 2021 – June 2022 school year. Ex. S. Tuition for this time period is $74,750.00, and [REDACTED]’s parents are obligated to pay this amount. Ex. S at 1-2, 4.
  • • [REDACTED] did not attend [REDACTED]’s summer 2021 program. Tr. 180. His parent is not seeking reimbursement for a summer 2021 program. Tr. 184.
  • • [REDACTED]’s father submitted a ten-day notice letter to the DOE on August 27, 2021, informing the DOE that [REDACTED] would continue to attend [REDACTED] for the 2021-2022 school year. Ex. E.
  • • [REDACTED] personnel prepared individualized Semester Goals and Objectives for [REDACTED] for the September 2021- June 2022 school year for each of his classes. Ex. H.
  • • [REDACTED]’s weekly schedule at [REDACTED] includes: Advance, Transition Seminar, Spanish Cultures and Languages, Forum 11, Environmental Art, Real World Applications, Math, Lunch, Writing (Writer’s Composition/Integrated Speech and Language Therapy), Applied US History and Applied American Literature. Exs. P, Q.
  • • There are nine students in [REDACTED]’s transition seminar, applied United States history class, and applied American literature class. Tr. 159. There are four to five students in [REDACTED]’s other classes. Tr. 158, 168. Each class is taught by two teachers; with Writer’s Composition/Integrated Speech and Language Therapy taught by a teacher and a certified Speech-Language Pathologist and Forum facilitated by a certified School Psychologist.. Ex. Z at ⁋⁋ 25, 28, 31, 34, 35.
  • • Forum 11 is a peer counseling group led by a school psychologist in which the students address social skills, developing peer relationships, problem-solving and processing events in the world around them (such as COVID). Tr. 160.
  • • Both the transition seminar and Real World Applications are run by [REDACTED]’s transition and guidance coordinator. Tr. 163, 165. [REDACTED] also meets individually with the transition and guidance coordinator. Tr. 165.
  • • [REDACTED]’s [REDACTED] report card demonstrates that he is making good progress in his classes this year. Ex. F.
  • • In Applied American Literature 2, [REDACTED] is improving reading comprehension, as demonstrated by his completion of sequencing activities. He benefited from review and repetition of vocabulary words, prompting, scaffolding and one-to-one assistance from the teacher.
  • • In Math Applications, [REDACTED] required extra time to solve problems and one-to-one teacher assistance throughout the duration of each task, verbal prompts, repeated instruction, scaffolding and modeling. With such support, [REDACTED] was able to learn to calculate costs of various activities (including meal preparation).
  • • Applied United States History: With step-by-step instructions, individualized teacher attention, scaffolding, guiding questions, review and repetition of main ideas, and 1:1 support, [REDACTED] improved his writing skills to write two paragraph compositions on twentieth century social changes.
  • • Environmental Art: [REDACTED] completed structured art projects and improved his attention to tasks.
  • • Spanish Cultures and Languages: [REDACTED] required significant supports (as described above) and participated in class lessons.
  • • Writer’s Composition 2/Integrated Speech and Language Therapy: [REDACTED] worked on understanding sentence structure, grammar and punctuation. [REDACTED] required 1:1 support, modeling, visual aids, repeated instructions, verbal prompts, and chunked assignments as well as “significant individualized support.” [REDACTED] made steady progress in writing grammatically correct simple sentences.
  • • Advance: Utilizing the various supports described above, [REDACTED] made progress in planning and setting goals for himself and organizing his materials and notes.
  • • Transition (Transition Seminar and Real World Applications): [REDACTED] learned about career options, identifying career options that align with his interests, personal banking procedures, and using the internet and improved his attention to task. He benefited from the various supports described above.
  • • Forum: Through participating in structured sharing activities with his peers and “a great deal of counselor support,” [REDACTED] was able to share about topics of interest to him and identify “highlights or challenges” of his week. He practiced social communication skills and benefited from engaging in the structured discussions. Again, He benefited from the various supports described above.
  • • [REDACTED] does not receive individual related services at [REDACTED]. Tr. 175-176.
  • • Dr. [REDACTED], a licensed clinical psychologist, conducted a Neuropsychological Re-Evaluation of [REDACTED] in October 2021. Exs. J, X at ⁋⁋ 1, 6, 8, 10.
  • • Dr. [REDACTED] opined that [REDACTED] is a student with “complex needs” who continued to need a “very individualized program specifically designed to meet the needs of children on the autism spectrum with learning disabilit[ies]” in a small, specialized school. Tr. 146.
  • • Dr. [REDACTED] explained that [REDACTED] “has basic educational skills which can be accessed in a 1:1 paradigm” and that his “significant language impairment and social disconnection consistent with ASD” prevents him “from reaching a level of independence in the learning environment, appropriate to his age and grade.” Ex. J at 3.
  • • Dr. [REDACTED] concluded that [REDACTED] presents with [REDACTED] (level 3, without intellectual impairment) and, furthermore:
  • • [REDACTED] presents with [REDACTED] which is characterized by a persistent difficulty with verbal and nonverbal communication that cannot be explained by low cognitive ability. Symptoms include difficulty in the acquisition and use of spoken and written language as well as problems with inappropriate responses in conversation. [REDACTED] is diagnosed based on difficulties with both verbal and non-verbal social communication skills. These skills include responding to questions and formulating language for social communication reasons. [REDACTED] can be tangential and over focused....
  • • [REDACTED] presents with a pervasive slow processing speed time (work finding deficits, log tern memory retrieval deficits, graphomotor reaction speed time deficits and deficits in metacognition.” [REDACTED] continues to need a specialized program to address the [REDACTED] deficits.
  • • Ex. J at 23-24.
  • • Dr. [REDACTED] opined that the [REDACTED] School program would promote [REDACTED]’s functioning in the real world by increasing his independence, social navigation skills, interpersonal skills and vocational skills and prepare him for life after school. Tr. 149; Ex. J at 24-25.
  • • Dr. [REDACTED] opined, based upon her extensive testing of [REDACTED] over time and in October 2021, that “[REDACTED] had not received an appropriate educational program until he began [REDACTED] School where he has made significant gains” and that “[REDACTED] needs to remain in his current placement where he has made quantitative and significant gains. He made minimal progress before he began [REDACTED] School.” Ex. J at 24.
  • • [REDACTED]’s parents are unable, at this time, to pay the full tuition. Exs. V, W, AA at ⁋⁋ 19-20, 22.

Decision

A board of education may be required to pay for education services obtained for a child by the child's 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. School Committee of the Town of Burlington v. Department of Education, 471 U.S. 359 (1985). The fact that the school selected by the parents is not approved as a school for children with disabilities by the State Education Department (as in the instant case) is not dispositive of the parents’ claim for tuition reimbursement. Florence County School District v. Carter, 510 U.S. 7 (1993).

The central purposes of the IDEA are to ensure: (1) that students with disabilities have available to them a free appropriate public education 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) that the rights of students with disabilities and their parents are protected. 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 U.S. 49, 51 (2005); Board of Education v. Rowley, 458 U.S. 176, 179-181 (1982). The first step in the inquiry is to determine whether the school district offered a free appropriate public education to the student. See, e.g., Application of a Child with a Disability, Appeal No. 07-008; Application of a Child with a Disability, Appeal No. 06-121. A free appropriate public education includes special education and related services designed to meet the student’s individual needs, provided in conformity with a written IEP. See 20 U.S.C. §1401(9); 20 U.S.C. §1414(d).

A school district offers a student a free appropriate public education when (1) it complies with the procedural requirements of the IDEA and (2) the IEP developed by the district must be “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988, 999 (2017); see also Rowley, 458 U.S. at 207; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 (2d Cir. 2014); R.E. v. New York City Dep’t of Educ., 694 F.3d 167, 189-90 (2d Cir. 2012). A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” Rowley, 458 U.S. at 203. The school district also must ensure that “[t]o the maximum extent appropriate, children with disabilities are educated with children who are not disabled” that is, in the student’s least restrictive environment. 20 U.S.C. § 1412(a)(5)(A); 8 NYCRR 200.1(cc), 200.6(a)(1); see M.W. ex rel. S.W. v. New York City Dep’t of Educ., 725 F.3d 131,143 (2d Cir. 2013).

A hearing officer may determine that a school district denied a student a FAPE based upon the district’s procedural errors in the development of the IEP, deficiencies in the substance of the educational program set forth in the IEP, or both. See L.O. v. New York City Dep’t of Educ., 822 F.3d, 95, 109 (2d Cir. 2016); see also 20 U.S.C. § 1415(f)(3)(E)(i); 8 N.Y.C.R.R. § 200.5(j)(5)(v). If a procedural violation is alleged, a hearing officer may find that a student did not receive an appropriate special educational program only if the procedural inadequacy: (1) impeded the student’s right to a free appropriate public education; (2) “significantly impeded the parents’ opportunity to participate in the decisionmaking process regarding the provision of a free appropriate education” to the student; or (3) “caused a deprivation of educational benefits.” 20 U.S.C. §1415(f)(3)(E)(ii); see also Application of a Child with a Disability, Appeal No. 07-007. Furthermore, “[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not.” R.E., 694 F.3d at 190; see also L.O., 822 F.3d at 123-124.

In New York, the school district bears the burden of proof in an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. N.Y. Educ. Law § 4404(1)(c); see R.E., 694 F.3d at 184-85.

Did the Department Offer [REDACTED] a FAPE for the 2021-2022 School Year?

The particular educational needs of a student with a disability and the services required to meet the needs must be set forth in a written IEP. Honig v. Doe, 484 U.S. 305, 311 (1988); 20 U.S.C. § 1401(9)(D); see 20 U.S.C. § 1414(d); 34 C.P.R. § 300.320. 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 N.Y.C.R.R. 200.4(d)(2). In Endrew F., the Supreme Court spoke with clarity: an IEP “is constructed only after careful consideration of the child’s present levels of achievement, disability, and potential for growth” and must provide “instruction and services... with an eye toward ‘progress in the general education curriculum.’” 137 S. Ct. at 999, 1000. The CSE then must establish annual goals related to the identified needs of the student and provide for the use of appropriate special education services in the IEP. 8 N.Y.C.R.R. 200.4(d)(2)(iii), (v). In [REDACTED]’s case, this means an IEP that addresses his constellation of complex and interrelated diagnoses—including ASD, [REDACTED] and learning disabilities— and unique special educational needs.

  • • Was the IEP developed based upon appropriate and sufficient evaluative material?

Parent argues that the Department failed to develop the October 2020 IEP based upon “’sufficient, accurate, and comprehensive evaluations through a variety of assessment tools’” because the evaluations utilized by the CSE were created in July 2017. IHO Ex. II at 21.[2] The Department argues that the “evaluative data” was sufficient because it included input from [REDACTED]’s parent and teachers and the evaluations from 2017. IHO Ex. I at 5.

A CSE is required to “arrange for an appropriate reevaluation of a student... at least once every three years, except where the school district and the parent agree in writing that such reevaluation is unnecessary.” 8 N.Y.C.R.R. § 200.4(b)(4); see also 20 U.S.C. § 1414(a)(2). This reevaluation must “be conducted by a multidisciplinary team or group of persons, including at least one teacher or other specialist with knowledge in the area of the student’s disability.” 8 N.Y.C.R.R. § 200.4(b)(4). “The purpose of [a] triennial evaluation is to provide sufficient information to determine a child's individual needs and continuing eligibility for special education.” Application of a Child with a Handicapping Condition, Appeal No. 91-37.

The CSE must address the results of a reevaluation in a meeting to review the student’s IEP—here, the October 2020 meeting. Id. The goal of the entire evaluation process is to enable the CSE to create an appropriate IEP for the student. See, e.g., D.S. v. Trumbull Bd. of Educ., 975 F. 3d 152, 157 (2d Cir. 2020) (“Trumbull”); L.O., 822 F.3d at 109-111; A.R. v. Norwalk Board of Education, 183 F. Supp. 2d 534, 549 (D. Conn. 2002); Application of a Student with a Disability, Appeal No. 10-033 at pp. 30-32.

A reevaluation of a student with a disability must “be sufficient to determine the student’s individual needs, educational progress and achievement, the student’s ability to participate in instructional programs in regular education and the student’s continuing eligibility for special education.” 8 N.Y.C.R.R. § 200.4(b)(4) (emphasis added). A reevaluation must also include data to determine the student’s present levels of academic achievement and related developmental needs, whether the student continues to needs special education, and whether the student needs additions or modifications to special education services. 8 N.Y.C.R.R. § 200.4(b)(5)(ii)(a)-(d) (emphasis added). In other words, a school district’s triennial reevaluation of a student must be “comprehensive.” Trumbull, 975 F.3d at 157, 163; see also 20 U.S.C. § 1414(b) & (c).

Section 200.1(ww)(3)(i) of the Regulations further describes the four areas of individual needs into which the CSE must inquire:

(a) academic achievement, functional performance and learning characteristics which shall mean the levels of knowledge and development in subject and skill areas, including activities of daily living, level of intellectual functioning, adaptive behavior, expected rate of progress in acquiring skills and information, and learning style;

(b) social development which shall mean the degree and quality of the student's relationships with peers and adults, feelings about self, and social adjustment to school and community environments;

(c) physical development which shall mean the degree or quality of the student's motor and sensory development, health, vitality, and physical skills or limitations which pertain to the learning process; and

(d) management needs which shall mean the nature of and degree to which environmental modifications and human or material resources are required to enable the student to benefit from instruction....

8 N.Y.C.R.R. § 200.1(ww)(3)(iii) (emphasis added). School districts are required to “administer tests and other evaluation materials as may be needed to produce the data” described in 8 N.Y.C.R.R. § 200.4(b)(5)(ii) and § 200.1(ww)(3)(i). 8 N.Y.C.R.R. §200.4(b)(5)(iii) (emphasis added).

Furthermore, students must be “assessed in all areas related to the suspected disability, including, where appropriate, health, vision, hearing, social and emotional status, general intelligence, academic performance, vocational skills, communicative status and motor abilities” and the evaluation must be “sufficiently comprehensive to identify all of the student's special education needs, whether or not commonly linked to the disability category in which the student has been identified.” 8 N.Y.C.R.R. § 200.4(b)(6)(vii) & (ix); see also Application of a Student with a Disability, Appeal No. 13-215 at pp. 16-17.

In the instant matter, the DOE relied upon July 2017 assessments consisting of a Level 1 interview of [REDACTED]’s father, a social history and a PT document. The evaluative material at the October 2020 IEP meeting was insufficient and inappropriate for developing an IEP for [REDACTED] for two reasons: (1) it was outdated and (2) it did not provide the necessary and required information for formulating an IEP. In other words, not only did the CSE, at the October 2020 IEP meeting, rely upon outdated evaluative material, but the CSE simply did not have sufficient and appropriate evaluative information to work with to craft an IEP for [REDACTED].

The documents the CSE did have were more than three years old; statute and case law are clear—students must be reevaluated at least every three years, and I can conclude that the documents upon which the DOE asserts it relied in developing [REDACTED]’s IEP are outdated and therefore insufficient and inappropriate. The Department’s suggestion that this “defect” was remedied by “input” from [REDACTED]’s teachers and parents at the IEP meeting must be rejected. Of course, [REDACTED]’s teachers and parents should provide timely and useful input at the IEP meeting, however, the statue, case law and State regulations are clear: a CSE also needs to have timely evaluations of a student to consider in order to develop an appropriate IEP for a students.

In addition, the evaluations considered must be “comprehensive” and encompass important and specified domains of inquiry. See, e.g., Trumbull, 975 F.3d at 157, 163; L.O., 822 F.3d at 109-111; 20 U.S.C. § 1414(b) & (c); 8 N.Y.C.R.R. §§ 200.1(ww)(3)(i), 200.4(b)(4), 200.4(b)(5)(ii) & (iii). Here, in addition to being outdated, the Department’s assessments did not produce “data to determine [[REDACTED]’s] present levels of academic achievement,” failed to determine [REDACTED]’s “educational progress and achievement,” failed to inquire into [REDACTED]’s “levels of knowledge and development in subject and skill areas,” and failed to obtain “accurate information on what [[REDACTED]] knows and can do academically.” See 8 N.Y.C.R.R. § 200.4(b)(4); 8 N.Y.C.R.R. §§ 200.4(b)(5)(ii)(a); 8 N.Y.C.R.R. § 200.1(ww)(3)(iii)(a); 8 N.Y.C.R.R. § 200.4(b)(5)(iii); 8 N.Y.C.R.R. § 200.4(b)(6)(i)(a). There was some PT material and information from [REDACTED]’s father (in the Social History Update and the Level 1 Interview). See A.R., 183 F. Supp. 2d at 550 (school district’s evaluation of student determined inappropriate because it did not include an educational assessment); Brock v. New York City Dept. of Educ., 13 Civ. 8673, 2015 U.S. Dist. LEXIS 44254 (S.D.N.Y. March 31, 2015) (lack of educational testing in a student’s reevaluation resulted in a denial of FAPE); Application of a Student with a Disability, Appeal No. 13-215 at p. 16 (school district’s evaluation determined inappropriate because it did not include evaluation of student’s reading skills). Furthermore, there were no assessments of [REDACTED]’s communication skills, social development, level of intellectual functioning, and fine motor skills, and only the most cursory inquiry into [REDACTED]’s transition and ADL needs. See 8 N.Y.C.R.R. §§ 200.1(ww)(3); 200.4(b)(5)(iii); 200.4(b)(6)(vii) & (ix).

Whether or not the CSE had sufficient and appropriate evaluations and evaluative material to develop an appropriate IEP for [REDACTED] is a procedural questions. As a result, I must consider whether the Department’s and the CSE’s failures here: (1) impeded [REDACTED]’s right to a free appropriate public education; (2) “significantly impeded the parents’ opportunity to participate in the decisionmaking process regarding the provision of a free appropriate education” to the student; or (3) “caused a deprivation of educational benefits.” 20 U.S.C. §1415(f)(3)(E)(ii). Given the outdated and scant assessments, that in no way even border on the “comprehensive,” I find that the Department’s (and the CSE’s) failures here rise to the level of a FAPE violation. The paucity of the assessments precluded the CSE from accessing a full picture of [REDACTED]’s complex and interrelated constellation of educational challenges and needs such that the CSE was disabled from developing an adequately informed and appropriate IEP for him.

As a result of the above procedural violation alone, the Department fails to meet its burden of proof as to the appropriateness of the program it offered to [REDACTED], and, as a result, [REDACTED]’s parents prevail on “prong I” of the Burlington/Carter test.

2. Was the October 2020 substantively appropriate for [REDACTED]?

The Department argues that Ms. [REDACTED]’s testimony establishes that the program set forth in the October 2020 IEP was appropriate for [REDACTED]. IHO Ex. 1 at 6-7. Parent argues that the IEP failed to address [REDACTED]’s special educational needs, failed to provide an “appropriately ambitious” program for him, and failed to include an appropriate transition plan for him, and that the Department’s witness, Ms. [REDACTED], was unable to explain how the Department’s IEP addressed [REDACTED]’s needs. IHO Ex. II at 22.

Ms. [REDACTED] was asked to testify about an IEP meeting in which she was not a participant for a student she had never met. As a result, she was not able to explain how the 8:1:1 program as recommended by the CSE would address [REDACTED]’s needs. And this problem was compounded for Ms. [REDACTED] because she had available to her outdated and skimpy evaluations available to her. As she was bereft of timely and comprehensive evaluations of [REDACTED], it was not possible for her to explain how his unique needs would be addressed by the IEP’s program. See J.D. v. New York City Dep’t of Educ., 15-4050-cv, 2017 U.S. App. LEXIS 1469 at *6-*7 (2d Cir. Jan. 27, 2017) (Summary Order) (“conclusory” testimony by DOE witnesses insufficient to support appropriateness of IEP).

Furthermore, the record is clear that [REDACTED] needs the one-to-one support and “constant prompting” (see ⁋ 22, above) given his particular, unique and interrelated diagnoses and consequent special educational needs. [REDACTED] staff and [REDACTED]’s parent made clear at the IEP meeting that he needs this level of support. See M.H. v. New York City Dep’t of Educ., 685 F.3d 217, 252 (2d Cir. 2012) (importance of evidence from individuals who knew and worked with student); S.B. v. New York City Dep’t of Educ., 14 Civ. 0349, 2015 U.S. Dist. LEXIS 82757 at *34-38 (S.D.N.Y. Jun. 25, 2015) (adjudicators must consider testimony of student’s teachers regarding appropriate class ratio for student); Jennifer D. v. New York City Dep’t of Educ., 550 F. Supp. 2d 420, 435 (S.D.N.Y. 2008) (witnesses who work with a student on a daily basis have “particular insight into the type of program appropriate” for that student).

In Endrew F., the Supreme Court spoke with clarity: an IEP “is constructed only after careful consideration of the child’s present levels of achievement, disability, and potential for growth” and must provide “instruction and services... with an eye toward ‘progress in the general education curriculum.’” 137 S. Ct. at 999, 1000. In [REDACTED]’s case, this means an IEP that addresses his complex and interrelated diagnoses and special educational needs. The DOE failed to present non-conclusory evidence to demonstrate that the IEP offered to [REDACTED] addressed his unique needs and “reasonably calculated” to permit [REDACTED] to make meaningful educational progress. For this separate and independent reason, the Department fails on its burden of proof on “prong I” of the Burlington/Carter test.

Given the above conclusions, a conclusion as to whether or not [REDACTED] could have implemented the IEP is immaterial to this proceeding. However, I do find that Mr. [REDACTED] testified credibly.

There is another aspect of the IEP on which I am compelled to comment. [REDACTED] is an [REDACTED]-grade student. He will be leaving the world of school in a very few years. He needs to be prepared, with consideration of his identified special educational needs and unique circumstances, for life after school. See 20 U.S.C. §§ 1401(34), 1414(d)(1)(A)(i)(VIII), 1415(b)(3), 1415(c)(1); 34 C.F.R. §§ 300.320(b), 300.321(b), 8 N.Y.C.R.R. § 200.4(d)(2)(ix) While transition planning is generally considered a “procedural” issue, the IEP is so lacking in indications that the Department conducted any “transition planning” for [REDACTED] that I am ordering the Department to undertake a complete transition assessment for [REDACTED].

Is the [REDACTED] School Program Appropriate for [REDACTED]?

The parent bears the burden of proof concerning the appropriateness of [REDACTED] for [REDACTED]. See, e.g., Frank G. v. Board of Education of the Hyde Park Central School District, 459 F. 3d 356, 364 (2d Cir. 2006), cert. denied, 128 S. Ct. 169 (2007). To meet this burden, the parent must show that the educational services provided at [REDACTED] address [REDACTED]'s identified special education needs. See C.F., 74;6 F.3d at 82; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 837 (2d Cir. 2014); R.E., 694 F.3d at 187; G.B. and L.B. on behalf of N.B. v. Tuxedo Union Free School District, 09-CV-859 (S.D.N.Y Sept. 30, 2010); Application of the Bd. of City School District of the City of New York, Appeal No. 95-79, at pp. 6-7; Application of a Child with a Disability, Appeal No. 96-1. The Second Circuit instructs that:

No one factor is necessarily dispositive in determining whether parents’ unilateral placement is “reasonably calculated to enable the child to receive education benefits.” Rowley, 458 U.S. at 207. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child’s individual needs.... To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child’s potential. They need only demonstrate that the placement provides “educational instruction specially designed to meet the unique needs of a handicapped child; supported by such services as are necessary to permit the child to benefit from instruction.”

Frank G., 459 F. 3d at 364 (emphasis added); also Bd. of Educ. of the Wappingers Cent. Sch. Dist. v. D.M., 831 F. App’x 29, 78 IDELR 2 (2d Cir. 2020) (Summary Order).

Furthermore, as the Second Circuit held in R.E.: “parents may provide evidence that the child made actual progress at their chosen private placement to support the adequacy of that placement.” 694 F.3d at 187 n.3.

The preponderance of the evidence establishes that [REDACTED] provides [REDACTED] with an educational environment in which his identified special education needs are addressed. First and foremost, [REDACTED] addresses [REDACTED]’s need for an individualized program with high levels of teacher support, as described in paragraphs 39 through 42d and paragraph 48 above. See, e.g., A.M. v. New York City Dep’t of Educ., 845 F.3d 523, 545 (2d Cir. 2017); R.E., 694 F.2d at 194; M.H. v. New York City Dep’t of Educ., 712 F. Supp. 2d 125 (S.D.N.Y. 2010), aff’d 685 F.3d at 252; see also 34 C.F.R. § 300.39(b)(3) (“[s]pecially designed instruction means adapting, as appropriate to the needs of [the child], the content, methodology, or delivery on instruction”) (emphasis added).

[REDACTED] has made progress at [REDACTED] during the current 2021-2022 school year as explained in paragraphs 42 and 49 above. At [REDACTED], [REDACTED] has made progress across the range of his challenges, clearly demonstrating that [REDACTED] is an appropriate special education placement for him. See, e.g., T.K. v. New York City Dep’t of Educ., 810 F.3d 869, 878 (2d Cir. 2016) (unilateral program appropriate when it meets child’s needs and child makes progress); F.B. v. New York City Dep’t of Educ., 132 F. Supp. 3d 522, 555-56 (S.D.N.Y. 2015) (unilateral program appropriate when it provided instruction and related services individualized to child’s needs and which resulted in progress).

The Department argues that [REDACTED] is inappropriate for [REDACTED] because it does not provide him with individual related services nor did [REDACTED] provide [REDACTED] with a 12-month program. IHO Ex. I at 10-11. [REDACTED] delivers related services to [REDACTED] in a group context and incorporates related services into his curriculum. This manner of services delivery is working for [REDACTED], and he is making progress in these areas. As a result, [REDACTED] is not deemed “inappropriate” for [REDACTED] because it does not deliver related services in an individual setting.

The Department also argues that [REDACTED] is inappropriate for [REDACTED] because it does not provide him with a 12-month program. It is undisputed that [REDACTED] is making progress in [REDACTED]’s 10-month program. There is no need, at this time, for him to attend a 12-month program at [REDACTED]. As a result, [REDACTED] is not deemed “inappropriate” for [REDACTED] because it is not providing him with a 12-month program.

Considering the “totality of the circumstances” as required by the Second Circuit in Frank G., the evidence supports a finding that the program at [REDACTED] is appropriate for [REDACTED] for the 2021-2022 school year. As a result, [REDACTED]’s parents prevail with respect to the second Burlington/Carter criterion.

Equities

With respect to the third Burlington criterion, whether equitable considerations support the parent’s claims, the evidence establishes that [REDACTED]’s parent cooperated with the CSE by attending CSE meetings, communicating with Department personnel, expressing her concerns about the IEP and the proposed placement to the CSE and providing the requisite statutory notice. See, e.g., R.E., 694 F.3d at 185, 195; M.F. v. New York City Dep’t of Educ., 2013 U.S. Dist. LEXIS 79181 at *34-*35 (S.D.N.Y. June 4, 2013) (“equitable considerations” include parental cooperation with the school district, attending CSE meetings, and providing notice to the school district).

Furthermore, although [REDACTED]’s parent has paid only $1,000.00 of the [REDACTED] tuition, the debt for the tuition is very real. [REDACTED]’s parent is unable to pay the [REDACTED] total tuition up front and then seek reimbursement from the Department. A hearing officer may, where the other requirements of Burlington and Carter permit, order prospective payment because: (1) such payment is permitted by Connors v. Mills, 34 F. Supp. 2d 795 (N.D.N.Y. 1998); and (2) it would be patently unfair to extend the protections granted by the United States Supreme Court in Burlington and Carter only to those disabled children whose parents happen to have the financial wherewithal to “front” the private school tuition and subsequently seek repayment from the school district. Equitable considerations favor the award of relief to [REDACTED]’s parent. As a result, [REDACTED]’s parent prevails with respect to the third Burlington/Carter criterion.

Evaluations The Department has not evaluated [REDACTED] in over four years. These delinquencies, in this particular case, do not entitle [REDACTED]’s parent to an IEE at public expense in light of the undisputed fact that a prior IEE at public expense was conducted subsequent to the Department’s 2017 evaluation. As a result of the above legal conclusions, I am not in a position to award the requested IEEs at public expense.

However, a hearing officer has independent authority to order school districts to conduct evaluations. 8 N.Y.C.R.R. §§200.5(g)(2), 200.5(j)(3)(viii). I am ordering the Department to conduct a complete and comprehensive triennial reevaluation, including transition-related assessments, for [REDACTED].

Compensatory Education Claims

Parent sought compensatory related services (related services and transition services) for the time that [REDACTED] has been attending [REDACTED]. Such relief is not appropriate in this case. [REDACTED]’s parents rejected the Department’s IEP, elected to remove [REDACTED] from public school, placed him at [REDACTED] and sought tuition funding from the Department. As a result, [REDACTED]’s parents have no claim on related services or transition services from the Department and are not entitled to compensatory services. See analysis set forth in IHO Ex. I at 14-15.

In their closing brief, Parent “requests all compensatory relief to be withdrawn without prejudice in order to await the independent evaluation results.” IHO Ex. II at 30. The request that compensatory relief claims be withdrawn without prejudice is denied. This case was litigated in full; and claims were adjudicated—including the claim that [REDACTED]’s parents are not entitled to an award of compensatory education as sought in the hearing request (see, for example, above paragraph).

Therefore, for all the above reasons, it is ORDERED that:

1. The Department of Education shall fund [REDACTED]’s placement at [REDACTED] School for the 2021-2022 10-month school year. The amount of funding shall not exceed $74,750.00 the 2021-2022 10-month school year. The funding shall be reimbursement to Parent for any amounts he has paid to [REDACTED] and direct payment to [REDACTED] for any remaining balance.

2. The Department shall conduct a complete and comprehensive triennial re-evaluation of [REDACTED] within 45 days of the date of this Decision.

3. The Department shall conduct a complete and comprehensive transition assessment for [REDACTED] within 45 days of the date of this Decision.

4. The Department of Education shall continue bus transportation for [REDACTED] to and from [REDACTED] School.

5. Requests for compensatory relief are denied.

Dated: May 28, 2022

______________________________

JEAN MARIE BRESCIA, ESQ.

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the 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.

DOCUMENTATION ENTERED INTO THE RECORD

Parents’ Exhibits

Exhibit Number

Number Exhibit Date of Pages

A Demand for Due Process Hearing 09/13/21 12

B IEE Request Letter 08/27/21 2

C Affidavit of Administrator of Vocational and Evaluation 01/27/22 2

Services at Career an Employment Options, Inc. (CEO)

D Affidavit of Executive Director of Exceptional Learner 01/28/22 4

Services, LLC

E Ten Day Notice with Confirmation 08/27/21 8

EVALUATION AND REPORT CARDS

F Semester One Report Card 2021-2022 Undated 1

G Semester 1 Report Card Narrative 09/13/21-01/28/22 5

H Semester Goals and Objectives 09/13/21-01/28/22 2

I First Quarter Progress Report 11/10/21 1

J Neuropsychological Evaluation 10/15/21 26

K Final Report Card 2020-2021 School Year Undated 1

L Semester 2 Report Card Narrative 01/28/21-06/15/21 5

M Semester 1 Report Card Narrative 09/15/20-/1/27/21 5

N First Quarter Progress Report 11/06/20 2

ADDITIONAL DOCUMENTS

O [REDACTED] School Program Description 2021-2022 4

P Semester 2 Class Schedule Undated 1

Q Semester 1 Class Schedule Undated 1

R Attendance 02/07/22 1

S Enrollment Contract 2021-2022 07/29/21 6

T Affidavit of Finance 11/24/21 1

U Proof of Payment 08/23/21 4

V 1040 Tax Return of [REDACTED] [REDACTED] 04/22/21 2

W 1040 Tax Return of [REDACTED] 08/12/21 2

X Affidavit of Dr. [REDACTED] 03/02/22 5

Y Curriculum Vitae of [REDACTED] Undated 2

Z Affidavit of [REDACTED] 02/28/22 12

AA Affidavit of Parent 03/18/22 5

Department of Education Exhibits

EXHIBIT NO.

DATE

DESCRIPTION

PAGES

9/24/2020

IEP Meeting Notice

3

10/21/2020

IEP

24

10/21/2020

IEP Attendance Page

1

7/19/2017

Vocational Assessment

3

7/26/2017

Social History Update

2

7/19/2017

Physical Therapy School Function Evaluation

6

Withdrawn

1/6/2021

Prior Written Notice

6

Withdrawn

6/19/2021

Prior Written Notice

6

3/10/2022

Affidavit-S. [REDACTED]

3

IHO Exhibits

I April 27, 2022 DOE Closing Brief 16

II April 27, 2022 Parent’s Closing Brief 32

Footnotes

[1] The document is a written questionnaire.

[2] There is no dispute that the October 2020 IEP was the IEP “in place” for [REDACTED] at the beginning of the 2021-2022 school year and is the operative IEP at issue in this proceeding. IHO Ex. I at 6.