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Case Number: 563059 – NYC: 218864
` DECISION AND ORDER
Case Number 218864
Student’s Name: REDACTED
Date of Birth: REDACTED
District: REDACTED
Hearing Requested By: Parents
Dates of Hearing: December 20, 2021, January 14, 2022, February 15, 2022, March 18, 2022, May 4, 2022, September 29, 2022, November 29, 2022, January 17, 2023, January 31, 2023, March 16, 2023, March 31, 2023, April 25,
2023
Hearing Officer: Rona Feinberg, Esq.
Actual Record Close Date: May 12, 2023
PERSONS APPEARING: December 20, 2021 (NO COURT REPORTER) REDACTED District Representative Department of (Remote) Education
REDACTED Advocate Parent (Remote) Educational Advocacy Services
January 14, 2022 REDACTED District Representative Department of (Remote) Education
REDACTED Advocate Parent (Remote) Educational Advocacy Services
February 15, 2022 REDACTED District Representative Department of (Remote) Education
REDACTED Advocate Parent (Remote) Educational Advocacy Services
March 18, 2022 REDACTED District Representative Department of (Remote) Education
REDACTED Advocate Parent (Remote) Educational Advocacy Services
May 4, 2022 REDACTED District Representative Department of (Remote) Education
REDACTED Advocate Parent (Remote) Educational Advocacy Services
September 29, 2022 REDACTED District Representative Department of (Remote) Education
REDACTED Advocate Parent (Remote) Educational Advocacy Services
November 29, 2022 REDACTED District Representative Department of (Remote) Education
REDACTED Advocate Parent (Remote) Educational Advocacy Services
January 17, 2023 REDACTED District Representative Department of (Remote) Education
J REDACTED Advocate Parent (Remote) Educational Advocacy Services
REDACTED Mother (Remote)
REDACTED Speech/Language Pathologist Parent (Remote) REDACTED Study Center January 31, 2023 REDACTED District Representative Department of (Remote) Education
REDACTED Advocate Parent (Remote) Educational Advocacy Services
March 16, 2023 REDACTED District Representative Department of (Remote) Education
REDACTED Advocate Parent (Remote) Educational Advocacy Services
REDACTED Mother (Remote)
REDACTED Speech/Language Pathologist Parent (Remote) REDACTED Study Center
March 31, 2023 REDACTED Advocate Parent (Remote) Educational Advocacy Services
April 25, 2023
REDACTED District Representative Department of (Remote) Education Hearing Officer’s Findings of Fact, Decision and Order Case No. 218864
INTRODUCTION
On December 20, 2021, January 14, 2022, February 15, 2022, March 18, 2022, May 4, 2022, June 30, 2022, September 29, 2022, November 29, 2022, January 17, 2023, January 31, 2023, March 16, 2023, March 31, 2023, and April 25, 2023, I held a hearing for a school-aged child, REDACTED (“the student”). The hearing appearances were held remotely.
The child is currently REDACTED months-old and is classified as having a Learning Disability (DOE Ex. 1 at 1). For the 2020-2021 school-year the child was unilaterally placed at the REDACTED.
The parents, by their advocate REDACTED, of REDACTED, filed an Impartial Hearing Request on October 5, 2021, alleging that for various reasons, the Department of Education failed to provide the child with a Free and Appropriate Education (“FAPE”) for the 2020-2021 schoolyear (Parent’s Ex. A). As a remedy the parents asked for an Order directing reimbursement/direct payment for the child’s tuition at REDACTED and any mandated related services that the student did not receive (Parent’s Ex. A at 3).
I was appointed as Impartial Hearing Officer on November 2, 2021. At that time, the compliance date was January 18, 2022. I extended the compliance date throughout the course of the proceedings. The extensions were granted after considering the cumulative impact of the factors enumerated in Section 200.5(j)(5)(ii) of the New York State Regulations of the Commissioner of Education (“Commissioner’s Regulations”) and a determination that there was a compelling reason for each of the extensions as required by Section 200.5(j)(5)(iii) of the Commissioner’s Regulations. Specifically, (a) at the time I was appointed to the case the school year in question had been completed; (b) in accordance with due process, the parties were entitled to time to see if the case would settle, and subsequently to secure witnesses, to participate in a hearing, and to have this hearing officer review the transcript and evidence and issue a Decision and Order; (c) there were no financial or detrimental consequences likely to be suffered by either party by the delay; and (d) there was no prior delay in this case that impacted on the child’s education.
THE ISSUES REMAINING IN DISPUTE AT THE IMPARTIAL HEARING
At the conclusion of the hearing the remaining issues in the case are: 1) whether the Department of Education provided the child with a FAPE for the 2020-2021 school-year and if not, 2) whether REDACTED was appropriate for the student, and 3) whether the equities of the case favor the parent or the Department of Education.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
POINT I
The Department of Education’s Case
The Department of Education introduced several documents into evidence and presented one witness, REDACTED (TR: 32-61). 1
Mr. REDACTED conducted the student’s Individualized Education Program (“IEP”) meeting on May 19, 2020. He appeared as the District Representative and the Related Service Provider/Special Education teacher (TR: 34-35, 45-46; DOE Ex. 1 at 19). REDACTED appeared as the School Psychologist. The student’s mother participated as did REDACTED, the School Administrator at REDACTED (TR: 35-36; DOE Ex. 1 at 19).
The IEP team classified the student has having a Learning Disability (TR: 36; DOE Ex. 1 at 1). To reach this determination, the IEP team reviewed the clinical information in its computer system about the student, and spoke with the parent and with REDACTED, noted on the IEP as a School Administrator at REDACTED, who Mr. REDACTED described as “very knowledgeable about the building and the school,” and gave the team “adequate information” with which to reach a “sound decision” on a program recommendation (TR: 38; Parent’s Ex. A at 19). The ultimate recommendation was for a 12:1:1 special class with a trained special education teacher and a paraprofessional, and the related services of counseling once per week for 30 minutes 1:1, and speech/language therapy twice per week for 30 minutes 1:1 and once per week for 30 minutes in a group, all in English, services that had been on the student’s prior IEP (TR: 36, 47; DOE Ex. 1 at 12-13). To allow for the student’s disability, the IEP mandated the accommodations of extended time (time and a half), taking exams in a separate location with a small group to minimize distractions, and having a proctor read and reread the testing directions and questions aloud (TR: 37; DOE Ex.[1] at 14).
Mr. REDACTED testified that the only disagreement that was discussed was the class size. Specifically, the parent was concerned that the student would not receive sufficient individualized attention. The IEP team addressed that concern by recommending a program led by a special education teacher “trained in issues like that” as well as a paraprofessional who would “constantly be in the classroom” (TR: 38, 46-47).
Mr. REDACTED explained that a public school is different from a private school, and encouraged the parent to visit the school, keep the options open, see if the school is “appropriate and meaningful for the child,” and to not dismiss it simply because of the student-to-teacher ratio.
The IEP team does not have any input for a placement recommendation (TR: 38-39, 46-47, 5354).
Mr. REDACTED did not recall whether he asked the parent or Ms. REDACTED the student’s then-current grade. He stated that according to the student’s chronological age, at the time of the IEP meeting, the student would probably have been in the seventh grade in public school (TR: 40). Mr. REDACTED also did not recall the student-to-teacher ratio in the student’s REDACTED class. However, he stated that Ms. REDACTED told him the ratio was “pretty small,” and he would not have been surprised if it was “much smaller” than the 12:1:1 that the IEP team recommended for the student (TR: 41).
At the time of the IEP meeting the public schools were in “lockdown” due to the pandemic and that the circumstances at the time were “quite chaotic.” Mr. REDACTED recalled that at REDACTED there were times that the students were in school, and then there would be a spike in cases and the students would resume remote instruction (TR: 42).
Mr. REDACTED did not recall the student’s math and reading levels at the time of the IEP meeting and the IEP does not include the student’s then-current grade levels in those subjects (TR: 43-44). However, Mr. REDACTED testified that he knew that the student’s levels were “well below grade expectancy in the critical areas of math, and reading, and writing” (TR: 42-43). He did not recall whether the IEP team had Progress Reports from any of the student’s related service providers. Ms. REDACTED, who was also a speech/language therapist at REDACTED, was the only related service provider at the meeting. She gave the IEP team information about the student’s expressive and receptive language delays (TR:44). Mr. REDACTED did not recall considering an Assistive Technology evaluation (TR: 44).
In the regular course of business parents are sent the materials to be considered at the meeting in developing the IEP. In this case Mr. REDACTED did not recall whether the parent and Ms. REDACTED had copies of the evaluative material being used at the IEP meeting. The IEP team did not take any minutes of the meeting (TR: 47-48).
The academic goals on the IEP were created after the meeting. The related service goals were gleaned from clinical records and Ms. REDACTED’s speech/language expertise (TR: 4849). One of the parent’s concerns as indicated on the IEP were the student’s social/emotional issues, noting that the student was enjoying the isolation of the pandemic because he did not have to interact with others. The parent also noted issues regarding the student’s interactions with his siblings. When asked how the IEP team addressed this issue, Mr. REDACTED again referred to the “trained” special education teacher in the 12:1:1 class. When asked on cross-examination whether the IEP team considered additional counseling services, Mr. REDACTED responded that the team “didn’t add on too much stuff” because they wanted to wait and see if the student attended a public school, and if so, what recommendations the teacher would have regarding the frequency of counseling services. He noted that even though the 12:1:1 is a restrictive program, the IEP team always keeps the least restrictive educational program in mind, and that too many special education services may be counterproductive (TR: 51-52).
The Prior Written Notice dated June 18, 2020 indicates that a parent interview took place on May 19, 2020, the date of the IEP meeting. Mr. REDACTED stated that there was no formal interview on that date and opined that the reference was to the conversation and input that the parent contributed at the IEP meeting and gave the team information that was “critical” (TR: 5861).
Conclusions of Law
The purpose behind the Individuals with Disabilities Education Act (“IDEA”) 20 U.S.C. §§ 1400-1482 is to ensure that students with disabilities have available to them a FAPE, a free and appropriate education in the least restrictive environment (“LRE”). A FAPE includes special education and related services designed to meet a child’s unique needs, provided in conformity with a comprehensive written IEP. 20 U.S.C. § 1401(9)(D) 34 C.F.R. § 300.13; see 20 U.S.C. § 1414(d); 34 C.F.R. § 300.347; Board of Education v. Rowley, 458 U.S. 176, 179-81, 200-201 (1982). A school District offers a FAPE by developing an IEP and “providing personalized instruction with sufficient support services to permit a child to benefit educationally from that instruction.” Id. At 203; See R.E, v. New York City Dept. of Educ., 694 F.3d 167, 175 (2nd Cir. 2012). An appropriate placement is one that is "reasonably calculated to enable the child to receive educational benefits." Rowley, 458 U.S. at 188-189, 207; Florence County School District Four v. Carter, 510 U.S. 7, 14 (1993); Frank G., v. Bd. of Educ. of Hyde Park, 450 F.3d 356, 364 (2d Cir.2006), cert. denied, ___ U.S. ___, 128 S.Ct. 436, 169 L.Ed.2d 325 (2007). At an impartial hearing, the Department of Education bears the burden of demonstrating the appropriateness of the program recommended by its CSE. N.Y. Educ. Law §4404[1][c].
To meet its burden, the Board of Education must show that it recommended a program that is reasonably calculated to allow the child to receive educational benefits and that the recommended program is the LRE for the child. Rowley, 458 U.S. at 188-189; 34 CFR 300.550 [b]; 8 NYCRR 200.6 [a][1]. The IEP must and the program must be “likely to produce progress and not regression” and “afford the student an opportunity for greater than trivial advancement.” M.O. v. N.Y.C. Dept. of Educ., 793 F.3d 236, 23 (2d Cir., 2015), citing M.H. v. N.Y.C. Dept. of Educ., 685 F.3d 217, 224 (2d Cir. 2012).
Once the student’s needs are established, the IEP must provide for the use of appropriate special education services to address the child's special education needs and establish annual goals and short-term instructional objectives which are related to the child's educational deficits. See R.E., 694 F.3d at 175. The instruction offered must be “specially designed” to meet a child’s “unique needs” through an individualized education program recognizing that “the benefits obtainable by children at one end of the spectrum will differ dramatically from those obtainable by children at the other end, with infinite variations in between.” Endrew F. v. Douglas County School Dist. RE-1, 580 U.S. ___, 137 S. Ct. 988 at 999-1000 (2017) quoting Rowley, 458 U.S. at 202.
Under the IDEA, if procedural violations are 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 decisionmaking process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245).
***
In their Impartial Hearing Request, the parents raised objections to, among other things, the propriety of the May 19, 2020 IEP and the appropriateness of a 12:1:1 program for the student (Parents’ Ex. A).
The evidence and testimony at the hearing demonstrated that the student had severe deficits in many areas, including, for example, auditory processing difficulties that impacted on his ability to follow directions and understand the meaning of verbal exchanges, and that he required information to be repeated in a multi-modal and scaffolded manner. He also had, among other things, difficulty focusing and maintaining attention, all of which required small group instruction and one-on-one intervention to keep the student engaged. At REDACTED, the student’s classes ranged in size from four to seven students with a teacher and an assistant. While Mr. REDACTED acknowledged that the student was most likely in a much smaller class in his private school than a 12:1:1,when asked on cross-examination how the parent’s concern about individualization would be addressed in that program, Mr. REDACTED’s only response was that the student would have a special education teacher who was “trained in dealing with issues like that,” and that a paraprofessional would be in the classroom. Thus, he did not make any attempt to address the parent’s concerns, and the Department of Education did not present any testimony or witnesses to explain how the student’s individual educational needs would be met in 12:1:1 program.
In addition, Mr. REDACTED did not explain how the goals were developed for the student, other than a general reference to documents and Ms. REDACTED’s input at the hearing. Ms. REDACTED credibly testified that Mr. REDACTED asked her at the meeting if they could repeat the goals on the 2019-2020 IEP, and that she replied that she did not want to repeat past goals, but rather develop goals based on the student’s level of attainment at that time. When Mr. REDACTED suggested other goals, Ms. REDACTED told him that the student was “beyond that.” Ms. REDACTED stated that ultimately Mr. REDACTED had simply “cut and paste[d]” the goals from a prior IEP into the May 19, 2020 IEP (TR: 115-116).
The evidence also showed that the student presented with anxiety that caused difficulty in modulating his behaviors and that he struggled to develop strategies to cope with everyday stressors, requiring intervention by the school psychologist (TR: 108-109; Parent’s Ex. L at 6). However, the IEP recommended only one 30-minute period of counseling per week, and it does not include any goals to address those issues. Specifically, the two counseling goals on the IEP address only the student’s interactions with his peers and his social/emotional intelligence (DOE Ex. 1 at 7-8). There are no goals to address his anxiety or his behavior when he becomes frustrated, experiences emotional dysregulation, or is argumentative or defiant (DOE Ex. 1 at 7-8; Parent’s Ex. L at 5-6). When asked on cross-examination whether the IEP team considered additional counseling, Mr. REDACTED replied that the team wanted to wait and see if the public school teacher thought additional counseling was necessary, as the IEP team did not want to “dump[ ]too much special education services” which could be “antitherapeutic and not be productive at all” (TR: 52-53). Clearly, however, the goals for the single period of counseling mandated on the IEP should have addressed the student’s anxiety and the negative behaviors that resulted from his frustration and dysregulation.
Moreover, despite evidence that the student required occupational therapy due to, among other things, his poor attention and self-regulation, diminished fine motor skills, poor vestibular processing and proprioceptive feedback, the related service mandates on the IEP do not include occupational therapy (Parent’s Ex. L at 6). Notably, the occupational therapy section of the Physical Development section of the IEP refers back to a December 2017 OT evaluation and does not make any reference to the student’s occupational therapy needs in May 2020, at the time the IEP was developed (DOE Ex. 1 at 2, 5).
Finally, and significantly, the IEP does not contain any goals at all for math or any other academic subjects except for reading, with one of the reading goals related to writing an essay (DOE Ex. 1 at 7-11).
For the reasons cited above, I find that the Department of Education failed to meet its burden of demonstrating that it provided the student with a FAPE for the 2020-2021 school-year.
POINT II
The Parents’ Case
Findings of Fact
The student’s mother testified in person (TR: 215-260).[2] REDACTED, the student’s speech/language pathologist at REDACTED testified by both Affidavit and in person (TR: 102237, 164-212; Parent’s Ex. L). [3]
A.
When the student was in the second grade, the parent noticed that he was struggling to read. She obtained services for him in his then-current school (TR: 215). Prior to entering the fourth grade the parent sought a different school for the student because he was depressed and “felt like a failure” because he was not able to read. The student had difficulty following directions, was unable to manage his time or initiate tasks such as getting dressed, and had poor memory skills (TR: 222-225).
The parent 4 believed that the student had dyslexia. She consulted REDACTED at REDACTED, a community organization that provides advice about school placements, who all told her that the student required a special education setting (TR: 217-218, 238-241, 256). For fourth grade in 2017 the parent placed the student at REDACTED. Her daughter attended the school and she thought it would be appropriate for the student (TR: 215, 218, 227, 256).
The parent attended an IEP meeting for the student on May 19, 2020 for the 2020-2021 school-year (TR: 253-254; DOE Ex. 1 at 17). She believed that the 12:1:1 program recommended for the student “might be too much” him (TR: 222). The parent received a school location letter dated June 18, 2020 and contacted the school. Due to the Covid restrictions she was not permitted to visit. The school could not provide any information about the 2020-2021 school-year because it was not clear whether the school would be open or if remote learning would continue (TR: 219220, 250-251).
The student remained at REDACTED for the 2020-2021 school-year when he was in the seventh grade (TR: 254-255).
B.
REDACTED is a non-graded, not-for-profit, coeducational school for students from five to 15 years-old, founded to help children with language-based learning disabilities. Students enrolled at REDACTED share common learning disabilities and socialemotional challenges. All of the students have IEPs. The student population includes children with language processing disorders, dyslexia, Attention Deficit Hyperactivity Disorder ("ADHD"), Executive Function Disorder, Auditory Processing Disorder, and other challenges. The majority of students have been classified by the New York City Department of Education ("NYCDOE") as having a Speech or Language Impairment, Learning Disability, or Other Health Impairment. For the 2020-2021 school-year REDACTED enrolled 54 students, and provided instruction in small class settings (TR: 104, 120; Parent’s Ex. L at 2)
REDACTED is a speech-language pathologist who provides students with individual and group therapy. She is also Language Curriculum Coordinator, and the Director of Related Services at REDACTED. As Language Curriculum Coordinator, Ms. REDACTED prepares and implements language programming. She also trains the teachers on incorporating language-based lessons in the classroom, attends the team meetings for each student, and administers and analyzes the students' speech-language assessments (Parent’s Ex. L at 1). As Director of Related Services, she collaborates with the related services providers, reviews evaluations and progress reports, and works with the school psychologist and administration to implement supports such as behavior plans. I also observe students regularly in the classroom (Parent’s Ex. L at 1).
REDACTED's curriculum is based on New York State Common Core standards, with accommodations developed for each student's needs. The school employs a multidisciplinary approach, and modifications are made for each student based on his or her educational, emotional, and functional levels (Parent’s Ex. L at 2).
REDACTED's teachers are trained in, and use, The Orton-Gillingham Approach (“OG”), a multisensory, structured, sequential way to teach literacy when reading, writing, and spelling do not come easily to an individual. OG is used at REDACTED to teach students to read English and REDACTED. The teachers use other instructional methodologies as well, including, but not limited to, The Wilson Reading System, Verbalizing & Visualizing, and The Lindamood Phoneme Sequencing (“LiPS”) program. Teachers provide direct and systematic instruction in small groups, 1:1 instruction when needed, behavior modification , multi -modality input (with visual/auditory/tactile methods), review and repetition , incremental teaching , scaffolding, mnemonics, and feedback (Parent’s Ex. L at 2).
Students are grouped in classrooms based on their academic needs and social and emotional development. They are also grouped so that the students in each class are within two years of age. Each student's abilities within a given subject are considered when structuring classes in specific classes. Students may be regrouped during the course of the school year based on individual performance as measured against that of their classmates, as reported by the student's teachers and therapists (TR: 121; Parent’s Ex. L at 3).
Prior to the start of each school year, all REDACTED teachers participate in four full days of teacher/staff training. During the school year, the school holds monthly formal training sessions for teachers. Twice per year the staff participates in a full day of professional development. The lectures are presented by the school staff and by professionals with specific expertise in different areas of education. The school also provides training for students' parents/guardians, to enable carryover of skills and supports to the home and community environments. There are also presentations for parents and school staff during which experts in a given field address challenges facing the REDACTED students (Parent’s Ex. L at 3).
Ms. REDACTED first met the student at the beginning of the 2017-2018 school-year, and she provided him with individual speech therapy twice per week for 30 minutes from that time through the 2020-2021 school-year. Ms. REDACTED is familiar with the programming the student received during the 2020-2021 school-year based on her regular communication and collaboration with his teachers and other therapists, review of his work, and her observation of him in class (TR: 106, 118-119, 125; Parent’s Ex. L at 2-3).
The student’s program was developed based on the evaluations conducted at the start of the 2020-2021 school-year (TR: 190). At that time Ms. REDACTED administered the Clinical Evaluation of Language Fundamentals - 5th Edition ("CELF"-5) language assessment to the student and she reviewed The Gray Oral Reading Test-5 (GORT-5) which was administered by the school psychologist. The results of the CELF-5 assessment showed that the student presented with limited expressive and receptive language skills. He demonstrated poor verbal reasoning and executive functioning skills, as well as difficulty with metalinguistic skills. The student’s Core Language Score on the CELF-5 was in the 8th percentile. His Expressive Language Index was in the 5th percentile, and his Receptive Language Index was in the 9th percentile, scores that placed the student in the low range of language functioning (Parent’s Ex. L at 3).
The student scored in the 2nd percentile for the Word Classes Subtest which is used to evaluate the ability to understand relationships between words based on meaning features, function, or place or time of occurrence. Students who score poorly on this subtest have difficulty with adding new information to established schema, struggling to associate new information with previously acquired knowledge. They also struggle to generalize newly mastered information and apply it to other facts or situations. The student scored in the 5th percentile on the Recalling Sentences test, which is used to evaluate a student's ability to recall and reproduce sentences of varying length and syntactic complexity. Students who do poorly on this subtest struggle with immediate and short-term memory skills. As a result, educational progress can only occur when instruction is presented incrementally, and reviewed and rehearsed until the information is internalized, after which it can be scaffolded (Parent’s Ex. L at 3).
The student struggled with auditory processing, including discrimination, auditory memory, figure ground, and auditory sequencing. These deficits impacted on his ability to follow directions, to read, and to understand the meaning and intentions of verbal exchanges and processes. In order to learn, the student required that information be presented and repeated to him in a multi-modal and scaffolded manner (Parent’s Ex. L at 4).
The student’s pragmatic/social communication challenges included requesting information/action, conveying information, expressing attitude/emotion, and regulation of social interactions, maintaining focus, attending, establishing, and maintaining topic, turn taking, using politeness markers, and asking for clarification and/or repetition, in conversation (Parent’s Ex. L at 4).
At the beginning of the 2020-2021 school year, the student was often dysregulated and needed sensory input to achieve a level of equanimity. He had difficulty maintaining attention and focus, was impulsive and had poor executive function skills. During lessons, he struggled to engage in classroom learning. He had difficulty with maintaining eye contact, sitting still, and maintaining sustained focus. When engaged in tasks, such as reading, the student would quickly lose his ability to focus. He was often found with his head down on the table, turned away from the teacher or in a semi-prone posture on his chair. When called upon, he often avoided having to respond to the teacher and/or engage in assigned tasks. When presented with information that needed application of critical thinking skills, most often his first response was, "I don't know," or a shrug of his shoulders (Parent’s Ex. L at 5).
At the beginning of the year, he also presented with anxiety and with emotional dysregulation. He struggled to integrate adaptive strategies to deal with everyday stressors and to accurately interpret his environment and the intentions of others. He viewed himself as the victim of circumstance and was unable to take responsibility for his actions. He often became angry and argumentative or withdrawn and retreated from others. When he became anxious or confused, he had difficulty modulating his behaviors and/or making sense of his environment (Parent’s Ex. L at 5).
The student also presented with a limited vocabulary. He struggled with word recall and was unable to adequately describe what he had seen, heard, or felt. He had difficulty making associations, generalizing information, categorizing, classifying, and responding to “wh” questions appropriately. The student could not produce sentences that were grammatically correct and his organizational skills were poor (Parent’s Ex. L at 5).
Overall, the student’s reading skills were weak. The Gray Oral Reading Test-5 (GORT-
5) revealed that his reading skills were assessed to be 2.5 Grade level, while he was 12 years 3 months-old at the time of the assessment, and his overall reading skills were judged to be in the 10th percentile, which was described in the GORT-5 protocol as "below average." His reading rate was at the 2.2 grade level and his reading accuracy was judged to be at the 2.7 grade level. He struggled to apply reading strategies to unfamiliar texts (Parent’s Ex. L at 4). The student’s math skills were his area of greatest relative strength. He was able to understand place values to the millions, multiply and divide multiple digit numbers, and was building his knowledge of basic computation with fractions. However, he had difficulty with solving word problems, remaining focused, and organizing himself (TR: 182-184; Parent’s Ex. L at 5).
The student presented with significant concerns related to occupational therapy. Ms. REDACTED spoke to the occupational therapist at the school who evaluated the student formally using the Visual Motor Integration (“VMI”) assessment and multiple informal assessment tools. (TR: 120; Parent’s Ex. L at 3). He had delays in a range of areas, including divided attention skills, poor self-regulation, diminished fine motor skills (including difficulty with letter formation), difficulty with static balance, dynamic balance, and core strength, poor vestibular processing and proprioceptive feedback, difficulty with isolated head control, visual tracking, eye teaming, following multi-step directions (Parent’s Ex. L at 6).
The student also presented with concerns that required intervention by the school psychologist. He was an anxious and a reticent learner, who struggled to integrate adaptive strategies to cope with everyday stressors. When upset, he would withdraw and retreat from his peers. At other times he was argumentative and defiant. He viewed himself as the victim of circumstance and struggled to take responsibility for his actions. He often struggled with his peers, particularly when he felt wronged by them. Similarly, he struggled with social-emotional management. His moods fluctuated from a baseline of low mood affect to a high of frustration and anxiety. He frequently presented as tired, unmotivated, and slow moving. These behaviors affected his ability to participate fully in class and to engage in cognitive tasks (Parent’s Ex. L at 6).
C.
The school day was from 8:40 a.m. to between 4:05 and 4:15 p.m. (TR: 209; Parent’s Ex. D). For the 2020-2021 school-year the student was in a class of eight students. The class broke down into smaller units for individual subjects, based on each student’s respective abilities in a given subject area. The student’s smallest group was four students, and his largest group was seven students. For each of his classes he was with students who were at the same academic level for that skill and the students in all groups were within two years of age. All of his classes had a teacher 5 and a teaching assistant. The other students in the classroom were diagnosed with dyslexia, learning disabilities, speech-language delay, ADHD, and visual motor deficits (TR: 122, 126-127, 197; Parent’s Ex. L at 6). In many of the student’s classes he was near the lowest level of his group (TR: 199-201).
To address the student’s needs, the teachers used OG for English and REDACTED reading, direct and systematic instruction, Verbalizing & Visualizing, behavior modification techniques, multi-modality input (visual/auditory/tactile), review and repetition, incremental teaching, scaffolding, mnemonics, and feedback. OG facilitated the student’s learning as it allowed him to use multiple sources of intelligence to master challenging material and information. Lessons and materials were used at his skill level, and instruction was paced to accommodate his abilities. The introduction of new materials was geared to consider the student’s individual strengths and difficulties (Parent’s Ex. L at 6)
Because the student had such difficulty with processing new information, all such information was presented using visual, tactile, and auditory input. Information was broken down into the smallest incremental unit and reviewed and rehearsed, using mnemonics and feedback. Only when the student incorporated the information into his repertoire was new information scaffolded onto the old (Parent’s Ex. L at 7).
5 The student had a total of seven teachers, some of whom were licensed and or certified in New York State, and some of them were not (TR: 130-132, 201-209).
In addition to classroom/learning support, the student received counseling twice per week with a Certified School Psychologist, speech language therapy twice per week with Ms. REDACTED, and occupational therapy three times weekly with a licensed occupational therapist, who developed an individualized Sensory Diet program for the student to facilitate emotional regulation, attention and focus, sensory input, core strength, and proximal strength. The Sensory Diet was administered Monday through Thursday during the last period of his school day. The student was also provided with quick input when necessary to help him with regulation. These two to three minutes of proprioceptive inputs were necessary because even with his daily sensory diet, the student required input to keep himself internally calm and regulated. The student benefitted from an individualized phonemic awareness program that Ms. REDACTED developed to help him deal with the auditory processing challenges that impacted on his ability to read. These strategies were administered by a teacher's assistant, who holds a Seminary Teacher's Certificate and who was trained by the student’s occupational therapist and Ms. REDACTED (TR: 132; Parent’s Ex. L at 7).
The student’s teachers, with the collaboration of the school psychologist and the administration, created a behavior plan for the student. Elements of the behavior plan included regulation to increase the student’s metacognition of his behaviors, behavior charts to help him identify his emotions, a daily schedule introduced during the arrival period, classroom reminders to reduce transitioning challenges, a sensory plan to help him with regulation, an alert system to keep him focused, and the provision of positive feedback for appropriate behaviors in addition to the token economy, as well as a positive behavior support system for his social-emotional needs. The student’s teachers and related service providers incorporated the behavior plan in each class throughout the day. The staff met with the student’s parents to facilitate parent training for carryover of the behavioral plan in the home environment. Ms. REDACTED testified that the behavior plan had a positive impact and allowed the student to learn (Parent’s Ex. L at 7, 9).
Every morning the student attended a Critical Thinking, Text Analysis REDACTED course with five other students. The class was referred to in the student’s Progress Report as “REDACTED” or “REDACTED” (TR: 134-136; Parent’s Ex. D, Ex. F at 3, Ex. L at 8). The teacher, REDACTED, was trained in OG and there was an assistant to provide1:1 instruction as needed. The goal of the class was to afford the students the opportunity to build a base through which they could develop independence in reasoning, thinking, analysis and studying, and to provide the opportunity for the student to expand h i s vocabulary and increase his comprehension skills. Materials used for this class included teacher created materials and the REDACTED. The teacher used methodologies to address the student’s deficits including OG, multi-modality presentation, direct, systematic instruction, modeling, review/repetition, incremental teaching, scaffolding, mnemonics, and feedback. The student also benefited from the use of graphic organizers (T charts, Venn diagrams, main idea webs, sequence charts, concept maps) and student created projects (Parent’s Ex. F at 2, Ex. L at 8).
Ms. REDACTED testified that students did not learn from a textbook but instead from photostatic copies of a particular paragraph of the REDACTED as an introduction to a topic (TR: 134, 204-205). She explained that the time students spent looking at the REDACTED material constituted 20% of the class, and that the rest of the time was spent on critical thinking, noting that although the REDACTED is a REDACTED text, the class addressed all things in the community in antiquity, and the class deals with the ethics and civics (TR: 135-136).
Ms. REDACTED stated that the student made progress in this class in that his vocabulary in both REDACTED expanded, he began to understand that information related to one area might be generalized to other situations, and he learned that given the same information, t w o people may have different understanding of a particular situation. The student was able to apply those reasoning skills when learning a new concept. His ability to respond t o "wh" questions, predict outcomes and infer information from a text improved as well (Parent’s Ex. L at 8).
The student attended a math class Monday through Friday mornings with four other students. The teacher holds REDACTED and is OG trained. There was an assistant in the class and 1:1 instruction was provided as needed. Materials and texts used included Math in Focus and teacher created materials. The skills addressed in the course included dividing fractions in a range of formats, multiplying and dividing decimals, understanding, and working with percentages, using ratio and rate to compare quantities and find missing data and increasing facility with solving word problems. The methodologies utilized to address the student’s learning challenges in math included systematic, incremental, and multisensory instructions including, but not limited to auditory presentation with repetition, visual aids and concrete representations, review/repetition, spiralizing, feedback, and learning through play. (Parent’s Ex. D, Ex. L at 9).
Ms. REDACTED testified that by the end of the 2020-2021 school-year the student’s math skills expanded. He learned to use estimations when presented with long division and multiplication problems, use the correct order of operations to solve problems with multiple operations, adding and subtracting unlike fractions and mixed numbers, finding the lowest common denominator to create like denominators when adding and subtracting fractions, and performing a variety of mathematical procedures using mental math. She stated that the student benefitted from concrete and visual representation of numbers, constant reviews, and small class size. He learned to write and evaluate one step algebraic expressions, equations, and inequalities (Parent’s Ex. L at 9).
The daily Morning Recess period on the student’s schedule consisted of a guided social skills club. Skills targeted during this time included transitioning, sportsmanship, developing esprit de corps, turn taking, using politeness markers, and theory of mind. Similar skills were targeted in the Afternoon Recess period, held four times per week. During Recess, teachers and assistants supervised the students on a rotational basis (Parent’s Ex. D, Ex. L at 9).
Each morning, Monday through Friday, the student attended a Text Analysis, REDACTED course. There were four other students in the class. There was one teacher and one assistant, and 1:1 instruction was provided when necessary. Materials for this course were REDACTED, a REDACTED language-skills based primary school curriculum and teacher created materials (Parent’s Ex. D, Ex. L at 8).
The students were taught REDACTED vocabulary, basic grammar, and how to formulate simple sentences in REDACTED. The skills addressed in this course included understanding word relationships and nuances, word meaning, sentence formulation, critical thinking, improving memory skills and developing strategies for language acquisition. As part of language development students engaged in both oral language skills and written language skills. Instruction was provided in English. The methodologies utilized to address the student’s deficits in this class included OG, multi-modality presentation, direct, review/repetition, incremental teaching, scaffolding, mnemonics, and feedback. The student’s needs were addressed by the use of color coding, extra processing time and positive reinforcement (Parent’s Ex. L at 9-10).
The student made progress including increased REDACTED vocabulary, specifically nouns, verbs, and adjectives, and learning how to construct oral and written simple sentences, greater facility with forming letters, understanding parts of speech, and increasing phonemic awareness. Ms. REDACTED testified that REDACTED language instruction required students to learn and follow rules and provides a solid basis for further language development She stated that many students with learning difficulties are able to make greater gains reading and decoding REDACTED language than in English in their earlier years of school. She stated that concurrent instruction in REDACTED and in English further strengthened the student’s decoding skills in English. She also stated that the course enabled the student to better understand current events, cultures, different forms of governance, and the concept of communal responsibility (Parent’s Ex. L at 10).
The student attended daily OG Reading class. The class was taught by a New York State licensed special education teacher who was trained in OG, and an assistant. There were four other students in the class, and 1:1 guidance w as provided as necessary. In addition to the teacher created materials, the texts used to address the student's reading challenges included Preventing Academic Failure, Merrill Readers, and Explode the Code. The instructional focus was on developing skills such as learning additional sound patterns, increasing phonemic awareness, and increasing fluent reading and greater comprehension (Parent’s Ex. L at 10).
The student required direct and explicit multisensory support with ongoing adaptations to support his learning. The methodologies utilized to address his deficits in the Reading Course included OG methodology, multi-modality presentation, direct, systematic instruction, 1:1 instruction when required, multi-modality input review/repetition, incremental teaching, scaffolding, mnemonics, and feedback. Flash cards, speed reading sheets and daily auditory drills were also used as educational supports (Parent’s Ex. L at 11).
By the end of the school-year the student increased his accuracy in word reading, furthered his knowledge of additional sound patterns, and improved his phonemic awareness. He was able to read with greater fluency and accuracy using improved inflection, tone, and intonation. He also increased the number of sight words he had in his repertoire (Parent’s Ex. L at 11).
On Monday through Thursday afternoons the student attended a Writing/History course with three other students. The class was taught by a licensed special education teacher trained in OG. There was an assistant in the class and 1:1 instruction was provided as needed. The materials used in the class included Write Bright, Social Studies Grade 5 and teacher made materials. The skills addressed included expressing thoughts in written form, improving grammar skills, expanding vocabulary, and improved automaticity of letter formation. The student learned how to compose and decompose written work at the sentence level (Parent’s Ex. D, Ex. L at 11).
The goal of the course was to teach writing with fluency and automaticity while students deepen their understanding of the Earth and its peoples through the study of history, geography, politics, culture, and economic systems. The student worked on developing the writing skills to communicate information, thoughts, and opinions. The student was supported in the class by continuous redirection and refocusing as writing did not come easily or naturally to him (Parent’s Ex. L at 12).
Ms. REDACTED testified that due to the supports provided to the student such as being taught in incremental units and hen scaffolding the skills that he mastered, by the end of the school-year he made progress in the class. He was able to write paragraphs and use strategies to organize his thoughts, remain focused on the topic and generate ideas. He learned to create an outline and use transitional words to support the clarity of the writing. The student learned to write an introduction, body, and conclusion to his work (Parent’s Ex. L at 12).
The student had English Language Arts (ELA) four times per week. His teacher was completing a Master's Degree in special education and is trained in OG, and there was an assistant in the class. There were five students in the class and the student was provided with 1:1 instruction when necessary. The materials used in the class included Focus in Reading, Visualizing and Verbalizing, Building Thinking Skills, and Worldly Wise as well as teacher created materials. The ELA class taught critical thinking skills, comprehension strategies and vocabulary skills. Other skills addressed in this course included developing schema, visualizing, describing, defining, connecting problems to solutions in texts used, forming associations, making connections, and understanding literary elements (Parent’s Ex. Ex. D, L at 12).
The methodologies utilized to address the student’s deficits in this ELA course included direct, systematic, and explicit instruction, multimodal presentation of information, incremental introduction of new materials and scaffolding, and a multisensory approach to help process information. The student also benefited from positive feedback and his behavioral intervention plan which helped him to attend for longer periods of time (Parent’s Ex. L at 12).
Ms. REDACTED testified that as a result of these methodologies and interventions, the student made progress. For example, the student increased his ability to identify literary elements, formulate and respond to "wh" questions related to a text, developed greater facility with defining words using textual cues, expanded vocabulary skills, learned to use text features to locate key information, and further developed his critical thinking skills (Parent’s Ex. L at 12).
The student had REDACTED Reading class four afternoons per week. Ms. REDACTED testified that the class was conducted in English and had no REDACTED. The teacher was completing a Master’s Degree in special education and was trained in OG in both English and REDACTED, and there was an assistant in the class. There were seven students in the class and 1:1 instruction was provided when needed. The students used teacher created materials and involved multisensory, multimodality programming that included supports such as kinesthetic input, visual aids, increasing phonemic awareness, incremental instruction with scaffolding, constant and consistent review, daily auditory and visual drills, syllabication, letter sound association, and auditory bombardment. The instructional objective of the class was to further develop proficiency with phoneme manipulation, work on active working memory skills, advance decoding to include multisyllabic words and build phonetic pattern inventories (Parent’s Ex. D, L at 13).
Ms. REDACTED testified that the student made progress. He was able to produce 119 syllables per minute using all the letters of the REDACTED alphabet and employing all the diacritic marks that connote vowels in REDACTED with 97% fluency. In addition, the student’s lexical inventory increased both in REDACTED and in English (Parent’s Ex. D, Ex. L at 13).
During the Pack-up period, an assigned teacher supervised the student’s cohort group of eight students as they gathered and organized their belongings for the next school day. During that time, the students and teacher discussed challenges encountered during the school day and how to better deal with similar situations (Parent’s Ex. L at 13).
In addition to his classroom instruction, the student received occupational therapy three times per week for 30 minutes individually, speech-language therapy twice per week for 30 minutes individually,[6] counseling once per week for 30 minutes individually and once per week for 30 minutes in a group, both by a certified school psychologist (TR: 106, 118, 132; Parent’s Ex. D, Ex. L at 13).
Skills targeted during the student’s occupational therapy sessions included strategies to self-regulate including sensory diets, charts, and various sensory inputs when necessary), letter formation, static balance, dynamic balance, vestibular processing, proprioceptive feedback, selective isolated head control, visual tracking, and eye teaming. The student progressed in his therapy by the use of his sensory diet, and quick input programming. He improved his core strength, which contributed to a more stable base of support for sitting and standing posture. He increased attention span, improved head isolation, and developed a greater ability to maintain anti-gravity core exercises (Parent’s Ex. L at 13).
In the student’s speech therapy sessions Ms. REDACTED targeted receptive language skills including sentence comprehension, understanding spoken paragraphs, integrating linguistic concepts, and following directions. The student also worked on word retrieval, sentence recall, and responding directly to “wh” questions, as well as expressive language skills, including formulating sentences, increasing vocabulary, and improving sentence structure. Because the student was also challenged by limited phonemic awareness which impacted on his ability to decode and encode words, he worked on daily phonemic awareness drills during his Reading class (Parent’s Ex. L at 14).
Ms. REDACTED testified that by the end of the 2020-2021school-year, the student demonstrated improved facility with phonemic awareness, a greater lexical inventory, improved sentence comprehension, increased understanding of spoken paragraphs, improved ability to follow directions, and better understanding of linguistic concepts. As his phonemic awareness skills developed he was better able to encode and decode words and was better able to comprehend what he had read or written (Parent’s Ex. L at 14).
During the student’s individual counseling sessions the school psychologist targeted skills to make the student more aware of his struggles with anxiety and with emotional dysregulation. As a result of therapeutic interventions the student learned to identify and respond to simple emotions in a highly structured environment (Parent’s Ex. L at 14).
In addition to academic subjects and related services the student participated in Robotics and Physical Education classes (Parent’s Ex. D, Ex. L at 14).
The student’s teachers tracked his progress through assessments in specific skills over the course of the school-year. Each day, they used informal probes during instruction. They also administered content based assessments, which were summarized at least monthly. Twice per school year, the teachers developed progress reports. Targets used towards the student’s goals increased in difficulty as his skills improved (Parent’s Ex. L at 14).
Ms. REDACTED testified that the student made important gains throughout the 20202021 school-year, across all subject areas and in all of his fundamental academic skills. He also progressed socially and behaviorally. The student’s focus and attention improved, making him more available for learning. His critical thinking skills increased, and he was better able to see connections and make associations. He also demonstrated growth in his social skills and functional skills (Parent’s Ex. L at 14).
Ms. REDACTED opined that REDACTED was an appropriate placement for the student for the 2020-2021 school-year because it provided the differentiated instruction that he needed and which enabled him to make meaningful progress. His educational program began at his presenting level and supported him as he developed his skills sequentially, building on his repertoire of targets as he mastered them. Ms. REDACTED testified that the student learned how to connect with his classmates because of the small class size and the constant guidance offered by his teachers and therapists. Throughout the course of the 20202021 school-year the REDACTED maintained consistent contact with the student’s parents, who were involved with his instruction (Parent’s Ex. L at 15).
The student’s mother noted that at home, the student became calmer, was better able to manage his time, did not become easily frustrated, and was more flexible and accepting of last minute changes to predetermined plans (TR: 227-228).
D.
Due to the Covid-19 virus/global pandemic, during the 2020-2021 school-year REDACTED transitioned from in person learning to remote instruction for a few weeks during October and November 2021 as the school was deemed to be in a "Red Zone." Ms. REDACTED and the school’s Executive Director, REDACTED, developed the remote program. The school staff and administration ensured that our students had access to all of the learning materials and technology that they would need to continue their programming. The school used Zoom for student lessons, which allowed for two-way audio and video feeds, and Google Drive to communicate and email to provide materials. The students' parents monitored the technology to ensure that the students had no trouble entering and leaving their sessions. The student’s parents facilitated this for the student, who maintained regular attendance. The student continued to participate during remote instruction, and he continued to make important gains towards his targets (TR: 112-114, 219; Parent’s Ex. L at 15).
Conclusions of Law
Under the second criterion of the legal standard, a parent bears the burden of proof with regard to the appropriateness of the services that she obtained for the student for the three school years in question. N.Y. Educ. Law §4404[1][c]; M.S. v. Board of Education of the City of Yonkers, 231 F.2d 96, 104 (2nd Cir. 2000); Application of a Child with a Disability, Appeal No. 11-053. In order to meet that burden, the parent must show that the educational services were "proper under the act" [IDEA]. Sch. Comm. of Burlington v. Mass. Dept. of Educ., 471 U.S. 359, 370 (1985) i.e., that the educational program is one which met the child’s special education 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. Parents cannot be denied reimbursement because a private school does not meet the standards required for a state educational agency such as developing IEPs or employing faculty members that are state certified. Rather, the parents 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” and that the placement is likely to produce progress and not regression. Ultimately, the issue turns on whether a placement - public or private - is "reasonably calculated to enable the child to receive educational benefits." Rowley, 458 U.S. at 188-189, 207; Florence County School District Four v. Carter, 510 U.S. 7, 14 (1993); Frank G., v. Bd. of Educ. of Hyde Park, 450 F.3d 356, 364-365 (2d Cir.2006), cert. denied, ___ U.S. ___, 128 S.Ct. 436, 169 L.Ed.2d 325 (2007); Walczak v. Florida Union Free Sch. Dist., 142 F.2d 119, 130 (2d Cir. 1998).
No one factor is dispositive of in determining the propriety of a unilateral placement. Rather, courts must consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. Frank G., 450 F.3d at 364-365. While parents are not held as strictly to the standard of placement in the LRE as school districts are, the restrictiveness of the parental placement may be considered in determining whether the parent are entitled to an award of tuition reimbursement. Rafferty v. Cranston Public School Comm., 315 F.3d 21, 26-27 (1st Cir. 2002); M.S, 231 F.3d at 105.
I credit the Affidavits and live testimony presented by the parent’s witnesses as detailed above with citations to the record. Except as indicated otherwise below, those citations will not be repeated here.
I find that REDACTED was able to meet the student’s unique educational needs during the 2021-2022 school-year. The evidence detailed the student’s difficulties at the beginning of the 2020-2021 school-year and explained the strategies used to address them. To address his academic needs the teachers used the OG reading method, presented new information in small increments, and built up to scaffolding the information as the student mastered concepts. To meet the student’s issues with maintaining attention and focus in his classes, he was instructed in small group settings with no more than six other students and as few as three other students, and provided with one-on-one assistance as needed as well as a sensory diet. The school provided the student with a behavior plan and token economy to target the behaviors interfering with his learning, and addressed his executive functioning issues. The student also received individualized speech-language and occupational therapy, and had counseling sessions with a certified school psychologist to address his anxiety and social/emotional functioning.
Both Ms. REDACTED and the parent testified that the student made progress during the 2020-2021 school-year. The student’s Progress Reports also show the strides that he made in his various subjects (Parent’s Ex. E, Ex. F).
I find that the testimony and evidence show that the program and supports provided to the student at REDACTED enabled him to make progress and provided him with an educational benefit. Therefore, I find that the parents are entitled to reimbursement of the tuition paid and direct payment for the remainder of the tuition owed.
The REDACTED tuition for the 2020-2021 school-year is $72,750.00. The parent testified that she had made payment towards the tuition, but the school affidavit dated May 2022 indicates that as of that date, no payments had been made (Parent’s Ex. G, Ex. H).
I find that the Critical Thinking, Text Analysis, REDACTED class that met in the morning was religious in nature as it was grounded in the REDACTED and texts used for the teaching and class discussions were based on the REDACTED. I also find that the Text Analysis, REDACTED class was religious in nature as it was based on REDACTED commentaries (TR: 134-136; Parent’s Ex. E at 3). These REDACTED subjects represent 17.65% of the school week. [7]
The student’s week also included 130 minutes of REDACTED Reading. Ms. REDACTED testified explicitly that the class was conducted in REDACTED and that there were no REDACTED. Although Ms. REDACTED related that the class helped the student with reading English, given the many academic difficulties that the student faced, I question the benefit of teaching him to read REDACTED, an REDACTED, when he was several years behind reading in REDACTED. In any event, I credit Ms. REDACTED’s testimony that the class was not religious in nature.
Thus, reimbursement/direct payment of the $72,750.00 tuition will be reduced by 17.65% for a total of $59,909.63.
POINT III
Equities
The IDEA provides that 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, or upon a finding of unreasonableness with respect to the actions taken by the parents. 20 U.S.C. § 1412[a][10][C][iii]; 34 CFR 300.148[d]; E.M. v. New York City Dept. of Educ., 758 F.3d 442, 461 (2d Cir. 2014); Application of a Student with a Disability, No. 17004.
There is no evidence that the parent failed to cooperate with the Department of Education in any way in relation to the 2020-2021 school-year, and the Department of Education does not allege otherwise.
The May 19, 2020, IEP indicates that the parent attended the meeting (TR: DOE Ex. 2 at 27-28). The parent testified that she contacted the proposed placement but she was not permitted to visit due to Covid protocols. She also explained that the school could not provide her with any information about the 2020-2021 school-year because it had not yet been determined whether the school would be open or if learning would continue to be remote (TR: 220-221).
In a 10-Day Notice letter to CSE Chairperson for Region [REDACTED], dated August 27, 2020, the parent, through her advocate [REDACTED], explained why she believed that the IEP was procedurally improper and substantively incorrect and thus resulted in a denial of FAPE (Parents’ Ex. C at 1). The letter also advised that the parent believed that REDACTED is able to provide the student with an appropriate education, and that the parent intended to request an impartial hearing and request reimbursement/direct payment for the student’s tuition at REDACTED for the 2020-2021 school-year (Parents’ Ex. C).
There is no evidence that anyone from the Department of Education responded to Ms. [REDACTED]’s letter or otherwise made any attempt to address the concerns expressed by the parent.
Therefore, I find that the equities of the case favor the parents
ORDER
In light of the above findings of fact, it is hereby Ordered that:
1) Within 30 days of the receipt of this Decision and Order the parents are to submit proof of the child’s attendance at REDACTED during the 2020-2021 school-year and proof of the tuition paid, if any; and
2) Within 30 days of receipt of the documents specified in (1) above, the Department of Education is to reimburse the parent for the any amount paid for the student’s 2020- 2021 tuition. All remaining tuition due shall be paid directly to the school. The total amount of tuition paid shall not include the portion of the school-year spent on religious education and thus shall not exceed $59,909.63 Dated: May 22, 2023
Rona Feinberg
Rona Feinberg, Esq.
Impartial Hearing Officer
EXHIBITS
DEPARTMENT OF EDUCATION:
EXHIBIT DATE DESCRIPTION PAGES
1 05/19/20 Individualized Education Program (IEP) 19
2 06/14/18 Psycho-Educational Evaluation 10
3 06/18/20 Prior Written Notice (Notice of Recommendation) 4
4 06/18/20 School Location Letter 2
PARENT:
EXHIBIT DATE DESCRIPTION PAGES
A 10/05/21 Impartial Hearing Request 5
B Mission Statement 1
C 08/27/20 Ten Day Notice 2
D 20/21 Class Schedule 1
E 20/21 Progress Report 4
F 20/21 End of Year Progress Report 4
G 05/24/22 School Affidavit 1
H 09/08/20 Enrollment Contract 2
I 05/19/22 Affidavit of Testimony 16
J 20/21 Attendance Record 1
K 2020 Parent 1040 U.S. Individual Income Tax Return 2 L 06/20/22 Updated Affidavit of Testimony - REDACTED 16
HEARING OFFICER
The Impartial Hearing Officer did not enter any Exhibits into evidence.
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 athttp://www.sro.nysed.gov.
Footnotes
[1] Mr. REDACTED has New York State licenses in both general and special education (TR: 33).
[2] The parent’s name is REDACTED. In some documents she is referred to as REDACTED (TR: 99).
[3] Ms. REDACTED has a Master’s Degree in Speech Language-Pathology and New York State licenses in speech-language pathology and general education. She has a REDACTED (Parent’s Ex. L at 1).
[6] In her Affidavit Ms. REDACTED states that she provided the student with speech/language therapy three times per week during the 2020-2021 school-year. However, at the hearing she testified that she provided him with therapy twice per week (TR: 106, 118; Parent’s Ex. L at 13).
[7] The student attended school 33.5 hours per week. The student attended Critical Thinking, Text Analysis, REDACTED Monday through Thursday and every other Friday for a total of 190 minutes per week (the Friday class met for 50 minutes. However, since it met every other week I calculated the class as 25 minutes in the weekly calculation). He attended Text Analysis, REDACTED, for 165 minutes per week (Parent’s Ex. D). Thus, the REDACTED school week was 255 minutes or 5.91 hours, which constitutes approximately 17.65% of the school week.