Skip to main content
Special Education Law
DECISIONMixed ResultIHO Case No. 219641

New York City Department of Education, Impartial Hearing Decision

April 24, 2022·Randy Glasser·New York City Department of Education (“DOE” or the “District”)

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

CASE NUMBER: 564011 - NYC: 219641

FINDINGS OF FACT AND DECISION

Student’s Name: REDACTED (“Student”)

Date of Birth: REDACTED

District: New York City Department of Education (“DOE” or the “District”)

Hearing Requested by: REDACTED, Esq., of REDACTED, PLLC, on behalf of REDACTED and REDACTED (the “Parents”) and the Student

Record Close Date: April 24, 2022

Hearing Officer: Randy Glasser, Esq.

On October 15, 2021, REDACTED, Esq., of REDACTED, PLLC, filed a due process complaint (“DPC”) on behalf of the Parents and their child, the Student, regarding her special education program and services for the 2021/2022 school year, pursuant to the Individuals with Disabilities Education Act (the “IDEA”), and Section 504 of the Rehabilitation Act of 1973, against the DOE (Parent Ex. “A”). This Hearing Officer was appointed as the Impartial Hearing Officer (“IHO”) on October 20, 2021, after the appointment of the previous Hearing Officer for this case was rescinded. A prehearing conference (“PHC”) was held on October 25, 2021, and a status conference was held on November 19, 2021. The Hearing for this matter went forward on December 3, 2021, January 12, 2022, and January 25, 2022. The DOE was represented by REDACTED, Esq., and the Parents and Student by REDACTED, Esq.

The District submitted into evidence Exhibits “1” through “14” and the Parents submitted into evidence Exhibits “A” through “M”, with the latter consisting in part of the Affidavit Testimony of REDACTED, Director of Enrollment Management at the REDACTED School, and Center (the “School”), REDACTED, a special education teacher at the School, and REDACTED, Parent (see Parent Ex. “I” “J,” and “K,” respectively). Pursuant to the parties’ agreement at the Hearing, they were originally supposed to submit their respective closing statements on February 28, 2022 (Tr. 441-442). However, pursuant to an email exchange on February 24, 2022, the due date for the parties’ closing statements was changed to March 14, 2022 (IHO Ex. “I;” also see: District’s Closing Brief at IHO Ex. “II,” and Parents’ Memorandum of Law in Closing Argument at IHO Ex. “III”) (Tr. 441-442). Lists of the appearances and documentary evidence submitted in this proceeding are appended to this Order. The compliance date for this matter was extended to April 28, 2022 (IHO Ex. “IV”).

BACKGROUND AND POSITIONS OF THE PARTIES

The Student is REDACTED years old, classified as a student with a Speech or Language Impairment and diagnosed with a specific learning disorder with impairments in reading, written expression, and mathematics (Parent Ex. “A”).

The Student’s Individualized Education Program (“IEP”) for the 2021/2022 school year recommends the following ten (10) month special education program and services: Integrated Co-Teaching Services for English Language Arts (“ELA”) ten (10) times per week, one (1) period per session, and for Math, seven (7) times per week, one (1) period per session, along speech language therapy in a group of three (3) students, two (2) times per week, thirty (30) minutes per session, an individual iPad with word prediction, reading and writing supports, PDF annotation, headphones and Mic daily, “as needed with academic tasks” (Parent Ex. “E” at p. 9).

The Parents unilaterally placed the Student at the School for the 2021/2022 school year, for which they are now seeking tuition reimbursement[1], special transportation services, funding/reimbursement for transportation costs incurred from the beginning of the school year until she was provided with transportation, and “compensatory education services for any services [the Student] was entitled to, and did not receive including pendency services”[2] (Id.).

The Parents’ requested relief is based upon their allegations that:

  • • The Individualized Education Programs (“IEPs”) developed at the meeting held on March 5, 2021 and subsequently on June 15, 2021 for the 2021/2022 school year, recommended an inappropriate program for the Student that would not allow her to make meaningful progress in light of her unique needs as shown by her final report card from the 2020/2021 school year stating that she was not meeting grade level standards in the ICT class (Id.);
  • • The Student has not received roundtrip transportation to the School for the 2021/2022 school year, even though she was allegedly entitled to such transportation pursuant to Section 4402(4)(d) of the New York Education Law and 34 C.F.R. 300.34[3]; and
  • • The School appropriately addresses the Student’s need for a small, structured class, with minimal distractions, in a small structured, supportive, special educational environment, with appropriate levels of individual attention and support, and appropriate, similarly functioning peers and peer models.

(Id.; see also: Parents’ opening statement at Tr. 60-65).

The District’s position expressed at the Hearing in their opening statement, was that the program recommended by the CSE at the meeting held on June 15, 2021, provided the Student with a free and appropriate public education (“FAPE”) because:

  • • She would not have fit in a smaller class than an ICT class because the functioning levels of the other students would not have been appropriate;
  • • Her classification is appropriate;
  • • The Parent entered into a contract with the School in February 2021, which was before the commencement of the 2021/2022 school year;
  • • The Student was making meaningful progress in speech, and her ICT class;
  • • The recommendations contained in the private neuropsychological evaluation comport with the DOE’s recommendations for the 2021/2022 school year;
  • • Despite the Student’s delay in receiving the iPad, it did not negatively impact her, to the extent that she would have been able to receive an educational benefit, because she was able to access the curriculum in the ICT class without the assistive technology class at that time, and make meaningful progress; and
  • • Under Prong III the equities favor the District because at the CSE meeting held on June 15, 2021 the Parent stated she wanted to give the ICT class “a try” and did not tell the District she was going to place the Student at the School until August 2021.

(Tr. 57-60)

The Student’s eligibility and classification are not at issue in this case.

FINDINGS OF FACT AND DECISION

A. Introduction and Findings of Fact: The IDEA provides that children with disabilities are entitled to a FAPE (20 U.S.C. § 1400 (d)(1)(A)). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensively written IEP (Id., 20 U.S.C. §1414(d); 34 C.F.R. § 300.17). A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through, the IDEA's procedures, and is (c) reasonably calculated to enable the student to receive educational benefits. Board of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). In order to meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas County Sch. Dist., RE-1, 137 S. Ct. 988 (2017).

Decisions of impartial hearing officers must be on substantive grounds based on a determination of whether the student received a FAPE (8 NYCRR § 200.5(j)(4)(i)), except:

In matters alleging a procedural violation, an impartial hearing officer may find that a student did not receive a free appropriate public education only if the procedural inadequacies impeded the student’s right to a free appropriate public education, significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provision of a free appropriate public education to the parent’s child, or caused a deprivation of educational benefits. Nothing in this paragraph shall be construed to preclude an impartial hearing officer from ordering a school district to comply with procedural requirements under this Part and Part 201 of this Title 8 NYCRR § 200.5(j)(4)(ii).

Id. (Emphasis added.)

School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement (NYS Educ. Law § 4404(1)(c)).

  • • The IDEA empowers a hearing officer to grant the relief he/she deems appropriate. 34 CFR §300.516(c)(3). One such remedy is reimbursement of tuition and related expenses. Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); Burlington Sch. Comm. v. Mass. Dep’t. of Educ., 471 U.S. 359, (1985). Notably, the mere fact that the state educational agency and/or LEA has not approved the private school placement does not bar the parents from reimbursement. Florence County Sch. Dist. Four v. Carter, supra.
  • • There were two (2) witnesses who testified, on the District’s direct case, REDACTED, speech language pathologist at REDACTED and REDACTED, Special Education Teacher at REDACTED (Tr. 77, 248).
  • • Ms. REDACTED, the Student’s speech language therapist at REDACTED, testified in relevant part about when she first met the Student at the beginning of the 2020/2021 school year, and helped her transition into REDACTED, referred her to the CSE and provided her with speech language services (Tr. 83-86); the CSE meeting held on March 5, 2021, that she participated in, the recommended program (Tr. 87-95) and why she thinks it was appropriate (Tr. 95-97); the appropriateness of the duration, frequency and location of the speech language services recommended for the Student, and why it was not necessary to provide more (Tr. 97-102); the Student’s strengths and weaknesses and how her program addressed the latter and allowed her to receive educational benefit (Tr. 104-106); the delay in receiving the assistive technology device, e.g., iPad, prevented her from making meaningful educational progress and she made some progress instead and received an educational benefit from her special education program and services (Tr. 106, 109-111, 142-143, 145); the present levels of performance on the IEP dated March 5, 2022 appropriately describe the Student and why (Tr. 112, 115-116, see also: 239-243; DOE Ex. “6”); regarding her opinion that the program recommended by the CSE at the meeting held on March 5, 2021 comports with the recommendation in the REDACTED neuropsychological evaluation that the Student needs "a supportive and structured classroom setting, low student-to-teacher ratio with a structured classroom" and why (Tr. 116-117) (DOE Ex. “2”); if the Student had continued at REDACTED, whether her ICT class would have changed and how (Tr. 117 – 118); she believes that the CSE’s recommendations at the meeting held on March 5, 2021 were in line with the recommendation in the REDACTED neuropsychological evaluation that the Student needs "support interventions...provided by trained professionals who are experienced in working with children with learning disorders", “multimodal strategies” and “intensive daily academic intervention targeting reading, writing, math remediation with a learning specialist in small group and individual formats" and why (Tr. 118-120); the District conducted an assistive technology evaluation as recommended by this evaluation (Tr. 120); her involvement with writing the recommendations for the assistive technology evaluation, whether she agreed with its summary and recommendations (Tr. 122); why the CSE did not feel a 12:1:1 class was appropriate for the Student (Tr. 123) (while, on cross-examination testified that the IEP Team did not consider 12:1+1 classes in other buildings in the District and that the Student could have benefited from such class if the other students were at her level socially at Tr. 130-132), why she did not feel a general education classroom was appropriate for the Student at that time (Tr. 124-125).
  • • On cross-examination, Ms. REDACTED also testified in relevant part regarding when the Student was pulled out for speech services (Tr. 131-132); the remote program in her building during the 2020/2021 school year (Tr. 133-135); that she did not know for sure that the Student would have received the assistive technology device by the beginning of the school year (Tr. 141); she agreed with the findings in the neuropsychological evaluation, e.g., that the CSE recommended the assistive technology device, e.g., iPad, because the Student needed support in all her classes (Tr. 145, 229, 230, 235-238); and that the CSE did not discuss placing her in a different school (Tr. 243-244). REDACTED, a special education teacher at REDACTED (Tr. 249), testified regarding REDACTED (Tr. 251), the school based support team and her involvement with same (Tr. 252-253), her familiarity with the Student (Tr. 253), that the Student was in her ICT class for the 2020/2021 school year and the makeup of that class (Tr. 254), her observation of the Student socially, academically, and of how she participated in class, and during recess (Tr. 255-256), her academic struggles in math and English Language Arts how they were addressed (Tr. 257-260, 260-262), the fact that the Student was making progress in her class (Tr. 262-263), the IEP team meeting held on March 15, 2021 and resulting IEP (Tr. 263-264), that the recommended program was appropriate and why (Tr. 267), when the IEP was in effect (Tr. 268), the appropriateness of the academic goals and why[4] (Tr. 270-271), the Student’s progress academically and in speech during the 2020/2021 school year (Tr. 272-273), Student’s adjustment to remote learning (Tr. 273-274), other options considered by the IEP team and why the ICT class was appropriate (Tr. 275-276), why it was “crucial” that the Student interact with general education students (Tr. 277-278), how the Student’s self-esteem was impacted when she did not get something or made a mistake in the ICT class (Tr. 278), the fact that the recommendations made by the IEP team were not predetermined (Tr. 278-279), parental input at the meeting (Tr. 279), the process by which the Student’s assistive technology device, e.g., iPad was delivered to her by June 16, 2021 (Tr. 285-287), the June 15, 2021 meeting, resulting IEP, and at which the neuropsychological evaluation dated December 7 and 11, 2020 was reviewed (Tr. 287-288; DOE Ex. “2” and “11”), her opinion that the program recommended by the IEP team was appropriate, based upon her needs identified in the aforementioned neuropsychological evaluation (Tr. 292-293), multimodal teaching and how it is available for the Student in the ICT class (Tr. 296), the ICT class with the assistive technology device was the best setting for the Student and would have allowed her to benefit and make more than trivial progress (Tr. 298-299), the special education teachers in the ICT class are not trained to address the Student’s dyslexia, but that as far as she knows the speech language therapist does have such training (Tr. 299-300), the ICT program cannot provide the intensive daily intervention e.g., targeted reading, writing and math in a small group or individual format recommended by the neuropsychological evaluation (Tr. 303), how, in the classroom, a multimodal approach to learning would be implemented, larger and more complex tasks and instructions would be broken down into simplified steps of instruction, there is visual pairing and verbal instruction, and positive reinforcement, a copy of class notes or outline could be made available in advance of the lesson (but has not been done in the past), and the Student would have access to dictation software in writing and a word processor for note taking and essays, in the classroom (Tr. 303-304, 305-306, 309), testing accommodations recommended at that meeting were appropriate (Tr. 309-310), how a more restrictive environment would have impacted the Student’s social emotional growth described in her IEP (Tr. 310, DOE Ex. “11”), that the Student enjoyed school, even during Covid (Tr. 310), the goals on the Student’s IEP (Tr. 310-312; DOE Ex. “11”), meaning of “as needed” for the assistive technology and/or services recommended (Tr. 313), the discussion regarding the Student’s placement, including the Parent’s concerns expressed at the meeting, and why the IEP team felt a 12:1+1 class would be inappropriate, and make her not want to attend school (Tr. 315-318), the Student’s grade level in reading and math and how the latter had improved (Tr. 319), her opinion that the program recommended for the Student at the meeting held on June 15, 2021 was appropriate (Tr. 319-320), entries in “SESIS” regarding this CSE meeting (Tr. 320-324), and emails with the mother in the fall of 2021 regarding the fact that the Student was not attending the District’s schools (Tr. 325).
  • • On cross-examination Ms. REDACTED testified in relevant part that the Student would have benefited from a 12:1+1 class if the other students in the class were socially appropriate, and the CSE did not consider placing the Student in a different school than REDACTED at both the meeting held in March and June 2021 (Tr. 331).

The Parents presented four (4) witnesses on their direct case: REDACTED, REDACTED, the Parent, and Dr. REDACTED.

REDACTED, the student’s teacher for social studies, writing and comprehension at the School for the 2021/2022 school year (Parent Ex. “J” at ¶¶5,6); testified in relevant part regarding the occupational therapy, Health and Human Relations (counseling), the Student receives at School (Id. at ¶7); how the Student struggles in decoding, especially writing and how this is addressed (Id. at ¶8); the Student has progressed an entire year in three months in her reading, from the 1.5 grade reading level she was at when starting at the School in September 2021, to a 2.5 grade level as of 12/2/21, the date of Ms. REDACTED’s Affidavit (Id. at ¶9); the Student’s decoding and guided reading groups, that the other students in the Student’s decoding group are on the same level, the literacy specialist pushes into the group and the Student is taught decoding using the Wilson Curriculum (Id. at ¶¶10-11); the Student is currently on grade level in Math, and the fact her math class has a total of twelve (12) students (Id. at ¶13); the meaning of acronyms on the Student’s schedule (Id. at ¶14); the Student “is socially appropriate, kind and well-liked by her peers; she fits in well with her peers and does not have any behavioral problems (Id. at ¶15); when students are assessed at the School and what areas (Id. at ¶16); how academic instruction is administered at the School (Id. at ¶17); the “significant progress” the Student made from September to December 2021 (Id. at ¶18); her opinion that an ICT class is too large for the Student and why (while on cross-examination Ms. REDACTED explained that she was a general education teacher in an ICT class for only the 2011/2012 school year and not at REDACTED) (Tr. 161-162).

On cross-examination Ms. REDACTED also testified in relevant part, that every child in the Student’s class receives occupational therapy one (1) time per week and counseling (a/k/a “HHR”) (Tr. 163, 164), the Student receives guided reading in a group of three (3) students, and that every child receives guided reading, but the group varies with the child (Tr. 165), how she administered Fountas and Pinnell for the Student in order to determine the size of her guided reading group (Tr. 165-166), the Student is at grade level for math, and is in a group of children functioning at the same level, taught by a different teacher (Tr. 166), she is the Student’s teacher for Social Studies and Writing and Comprehension class, comprised of ten (10) children, and their ages (Tr. 167), the School uses in-house/non-standardized assessments for reading and writing (Tr. 167-168), the Student follows instructions so well in class but could get lost if the class is too big (Tr. 168), when stating that the Student’s struggles will get lost in a 12:1+1 class, she is referring to a 12:1+1 class in a public school, which is different than the class the Student is in at the School and that she did not teach in a 12:1+1 class when she worked for the DOE (Tr. 168-169); regarding the Student’s schedule and its implementation (Tr. 170-171), her training in Fundations which is based upon Orton Gillingham, but she is not Wilson certified (Tr. 174, 180), the School uses Fundations and Wilson in the classroom and that the Student has a different teacher for decoding (Tr. 175), she has assessed the Student twice using Fountas and Pinnell, in September when she was at level H which is a 1.5 grade level and in November when she was at level L, which is a 2.5 grade level (177, 184), how the Student compares socially and academically to the other students in the class (Tr. 181), and how the Student uses the iPad in her class (Tr. 182-183).

  • • REDACTED, testified in relevant part regarding her background and position at the School (Parent Ex. “I” at ¶¶1-4); the School’s program and its teachers (Id. at ¶5); the School’s “comprehensive” elementary school program, where related services are provided if needed for students, how the School’s therapists and related service providers, who are all licensed by the State of New York, work collaboratively with the classroom teachers and administration (Id. at ¶¶6, 7); the admission process at the School, and how it was altered during COVID (Id. at ¶¶8-13); her familiarity with the Student, and involvement during her admissions process, and that her cognitive profile was “highly correlated to the population of students at” the School, and met the criteria for Specific Learning Disorders with Impairment in Reading, written Expression, and Mathematics, her strengths, and weaknesses (Id. at ¶¶14-17); the Student’s assessment by the School’s social worker, speech-language pathologist and learning specialist on November 9, 2020, and what they revealed about the Student, and that based upon their review of documentation, and meeting with the Student the School offered her admission (Id. at ¶¶18-19); what the Student requires and why the School meets those needs (Id. at ¶20); and the Student’s annual tuition at the School for the 2021/2022 school year is SIXTY-THREE THOUSAND FIVE HUNDRED DOLLARS ($63,500.00), of which the Parents paid FOURTEEN THOUSAND FIVE HUNDRED DOLLARS ($14,500.00), leaving a balance of FORTY-NINE THOUSAND DOLLARS ($49,000.00), which the Parents are responsible to pay, regardless of the outcome of this hearing (Id. at ¶21).
  • • On cross-examination Ms. REDACTED testified in relevant part, the School’s general criteria for admission (Tr. 189-190), the Parents signed the contract with the School in February 2021, put down a nonrefundable deposit of $5,000.00, and participated in the waiver of tuition refund plan, which is tuition refund insurance that applies to only certain situations e.g., a student’s untimely death or serious illness (Tr. 195, 198, 199, 202; Parent Ex. “H”).
  • • The Parent testified in relevant part regarding the Student’s Specific Learning Disorder (Parent Ex. “K” at ¶2); because her speech development was delayed she began private speech therapy at age two, attended preschool at REDACTED, followed by the REDACTED in the REDACTED from age three to six, and while in pre-kindergarten began showing difficulty in remembering her numbers and letters (Id. at ¶3); she sent the Student for a private psychological assessment in kindergarten which indicated early signs of dyslexia, and therefore received small group tutoring two to three times per week (Id. at ¶4); the Student attended first grade at REDACTED, where as a result of her IEP developed in December, was placed in an ICT classroom where she remained for the 2020/2021 school year, but continued to struggle (Id. at ¶5); she obtained a private neuropsychological evaluation of the Student at REDACTED in December 2020, which recommended a “small, supportive classroom and intensive daily academic intervention including an evidence-based reading program” (Id. at ¶6); the IEP meeting held on March 5, 2021, its recommendation for her to be placed in an ICT class for ELA, and math and receive speech therapy, which the Parent objected to during the meeting, but her concerns were disregarded (Id. at ¶8).
  • • The Parent continued to testify in relevant part, that she signed the contract with the School and put down a $5,000.00 non-refundable deposit in order to save a seat for the Student in the event that she was not able to get the support she needed at REDACTED (Tr. 358-359; Parent Ex. “H”; see also Tr. 373-374), why Parent’s counsel signed this contract as well (Tr. 360), and the Student’s remote instruction at the School when her REDACTED (Tr. 360-361).

On cross-examination, the Parent testified in relevant part that at the March 2021 IEP team meeting she refused the 12:1:1 class based on the recommendation of the professionals and agreed to keep her in the ICT because she was told that that was the “best option within the building (Tr. 362), the fact that the Parent is REDACTED and cannot drive, but her husband can and does drive her when he is able, which she explained (Tr. 363, 365), the Parent did not submit any invoices or proof of payment for the costs incurred using Uber to transport the Student to the School, and that she did not use UberXL, Uber VIP or “Wait and Save” option, but did use the least expensive alternative (Tr. 367, 368), and that even though she mentioned at the CSE meeting held in March 2021 that she was looking at private schools for the Student, she did not mention the School, or the fact that she had already received an acceptance letter (Tr. 376).

On redirect the Parent explained why she did not mention the School at the March 2021 CSE meeting:

Because I didn't want REDACTED to give up on her. I wanted them to find a program either within the school or within the DOE that would work for her. So you know, to me, me telling them that she had been accepted to, you know, this specialized school that is, you know, specifically geared towards her disability. I -- I didn't want -- I didn't want them to give up. I wanted them to find something that was going to work for her.

(Tr. 378).

REDACTED, PhD., a pediatric neuropsychologist with a private practice (Tr. 394) testified in relevant part regarding how she knows the Student (Tr. 394), the areas within which she tested the Student and her findings (Tr. 395), e.g., cognitive and intellectual testing (Tr. 398, 399), attentional and executive functioning (Tr. 399-400), academically, including how she scored in each academic domain (Tr. 400, 401-404), visual perception (Tr. 405), language, including but not limited to expressive and receptive (Tr. 405-409), diagnoses, e.g., special learning disability with impairments in reading, written expression and math (Tr. 411-412), how she thinks the Student will perform academically (Tr. 412), what would constitute meaningful progress for the Student (Tr. 413-414), the Student meets the criteria for dyslexia and why (Tr. 414-416), recommended interventions for students with a combination of dyslexia with specific learning disorder in reading, e.g. evidence based reading program (Tr. 416, 417), at the meeting held in March 2021, which she attended, the CSE discussed her recommendation regarding the class and that she explained at the meeting why an ICT class for the Student was not appropriate (Tr. 418-419), why the addition of an assistive technology device would not make an ICT class for the Student appropriate (Tr. 419, 420-421), why she recommended that the Student be placed in a class with peers who have similar cognitive abilities and whether it was discussed at the meeting (Tr. 423), her familiarity with the School and why it is appropriate for the Student (Tr. 425-426, 426-427), how iPads were used by the Student when she was tested (Tr. 437-438), and the supervision by her clinical supervisor when she evaluated the Student in 2020, because she was still a fellow and not a licensed neuropsychologist (Tr. 435, 437). On cross-examination Dr. REDACTED testified in relevant part that she has never seen an ICT class in the New York City public schools (Tr. 433).

The District did not present any rebuttal witnesses (Tr. 439).

B. The CSE’s consideration of appropriate evaluation material: The Parent argues in relevant part:

  • • The CSE did not have an appropriate depth of knowledge and understanding of [the Student’s] deficits to make an informed decision regarding her special education program.
  • • The CSE did not conduct an evaluation at public expense despite the fact that [the Student] had not be evaluated since she was in kindergarten, and instead relied upon the private neurological evaluation provided by the Parents.
  • • While the IEP Team did not disagree with the findings of the neuropsychologist, they did not follow the recommendations contained in such evaluation.

(IHO Ex. “III” at pp. 7-9).

While the DOE argues “the DOE had sufficient evaluative material to make an appropriate recommendation because the school based support team had up-to-date, comprehensive clinical data which was used to develop an IEP for the Student” (IHO Ex. “II” at p. 3). In this regard at the meeting held on March 5, 2021, the IEP Team relied upon a private neuropsychological evaluation from December 2020 and assistive technology evaluation conducted by the District in February 2021, along with input from the Student’s general education teacher, special education teacher, speech language therapist and the Parent (Id. at pp. 3-4; DOE Ex. “6”). Moreover, in May 2021[5], the Parent requested a reevaluation of the Student noting that she needs a small classroom with 1:1 help with a learning specialist (Parent Ex. “A,” “K”). In June 2021, the DOE determined that no additional tests or assessments were needed to determine the Student’s continued eligibility for special education and notified the Parents in writing of such determination (Id. at p. 4). Despite making such determination the District held another CSE meeting on June 15, 2021, whereat the IEP Team, which was comprised of the same members as at the March 15, 2021 meeting, reviewed the same assessments that they had reviewed at the previous meeting. Accordingly, the District asserts that the IEP Team at the June 15, 2021 meeting relied upon up-to-date information regarding the Student’s needs, including but not limited to input from the Student’s then current teachers, related service provider and Parent (Id.)

The Regulations of the Commissioner require that a district must conduct an evaluation of a student where the educational or related services needs of a student warrant a reevaluation or if the student's parent or teacher requests a reevaluation (34 CFR 300.303(a)(2); 8 NYCRR 200.4(b)(4)); however, a district need not conduct a reevaluation more frequently than once per year unless the parent and the district otherwise agree and at least once every three years unless the district and the parent agree in writing that such a reevaluation is unnecessary (8 NYCRR 200.4(b)(4); see 34 CFR 300.303(b)(1)-(2)). Any evaluation of a student with a disability must use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the student, including information provided by the parent, that may assist in determining, among other things, the content of the student's IEP (20 U.S.C. § 1414(b)(2)(A); 34 CFR 300.304(b](1)(ii); see S.F. v. New York City Dep't of Educ., 2011 WL 5419847, at *12 (S.D.N.Y. 2011); see Letter to Clarke, 48 IDELR 77 (OSEP 2007)). In particular, a district must rely on technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors (20 U.S.C. § 1414(b)(2)(C); 34 CFR 300.304(b)(3); 8 NYCRR 200.4(b)(6)(x)). A district must ensure that a student is appropriately assessed in all areas related to the suspected disability, including, where appropriate, social, and emotional status (20 U.S.C. § 1414(b)(3)(B); 34 CFR 300.304(c)(4); 8 NYCRR 200.4(b)(6)(vii)). The reevaluation shall 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 and 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, whether or not commonly linked to the disability category in which the student has been classified. Id.

In the instant matter, as aforementioned, the Parents assert the Student has not been evaluated since kindergarten, which would have been during the 2019/2020 school year[6]. Thus, it does not appear that three (3) years had elapsed since the Student was last evaluated when the Parent requested that the Student be reevaluated in June 2021. Accordingly, upon the Parent’s request, the District was not obligated to reevaluate the Student, despite the fact that the District and Parent did not agree in writing that such reevaluation was not necessary.

Moreover, and as aforementioned, pursuant to 8 NYCRR 200.4(b)(4), a district need not conduct a reevaluation more frequently than once a year, unless the Parent and District otherwise agree (8 NYCRR 200.4(b)(4)). In the instant matter the District contends that the IEPs were based upon sufficient evaluative data because of the private neuropsychological evaluation, assistive technology evaluation and input from the Student’s teachers, provider, and Parent (see: Infra). While the Parent asserts that even though the District had the private neuropsychological evaluation, it did not rely upon and adopt all of the recommendations contained therein (see: Infra). Interestingly, though the Parents do not contend that the present levels of performance contained in the relevant IEPs, and that were based upon the evaluations and input stated above, are inappropriate. Thus, even if this IHO was to find that the IEP was not based upon sufficient evaluative data, there has been no evidence or testimony proffered as to what additional evaluations are need in order to develop an appropriate IEP. Nevertheless, such determination is not necessary since as more fully explained herein this IHO has found that the Student’s IEPs were not calculated for the Student to make meaningful progress in light of her unique circumstances and therefore failed to provide the Student with a FAPE. Accordingly, regardless, of this IHO’s finding regarding this issue, the District cannot and does not prevail for Prong I.

C. Meaningful Participation: The Parent argues the evidence shows that the IEP Team predetermined the Student’s program thus, negating the Parent’s opportunity to engage in meaningful participation in the IEP development process (IHO Ex. “III” at p. 10). However, the record is devoid of any evidence in this matter substantiating such allegation. Rather, the IEP dated March 5, 2021 states that the CSE considered Special Education Teacher Support Services but found them not to be appropriate for the Student because “She needs the support of an integrated co-teaching (“ICT”) classroom environment where she will receive small group instruction in addition to large group instruction, in addition to speech and language services to address her speech/language delays, to achieve her most successful academic performance (Parent Ex. “C” at p. 13). While the IEP dated June 15, 2021 states that the CSE considered a general education class, special education teacher support services and a special class in a community school 12:1+1 and that the reason for their rejection is “General education, only, and SETSS were considered but rejected because they were found to be insufficient in meeting [the Student’s] academic needs at this time. She needs the support of an integrated Co-Teaching (ICT) classroom environment where she will receive the support of 2 teachers to modify and adapt the curriculum and benefit from small group instruction in addition to large group instruction, in addition to receiving speech/language therapy, in order for her to achieve her most successful academic performance. A Special class (12:1+1) was considered and rejected because it was found too restricted for her social-emotional needs at this time” (Parent Ex. “E” at p. 14). Also, based upon the teacher’s and speech language therapist’s testimony the CSE considered a 12:1+1 class but did not feel it was appropriate, even though they did not consider such placement in a school other than REDACTED (see: Infra). Accordingly, the hearing record further reflects that the District considered additional placement options for the Student for the 2021/2022 school year.

Moreover the Parent’s concerns are noted on both the March 5, 2021 and June 15, 2021 IEPs (Parent Ex. “D” and “E”). Regardless, the Parent testified that she made suggestions and voiced concerns at the meetings, but did not feel her concerns were addressed, e.g., when the Parent objected to the recommended ICT class for the Student at the meeting held on March 5, 2021, the Parent objected and felt her concerns were disregarded, and she was not in agreement with the CSE’s recommendation of an ICT class for the Student at the meeting held on June 15, 2021 which she felt the Team knew (Parent Ex. “K” at ¶¶5, 12).

The IDEA sets forth procedural safeguards that include providing parents an opportunity "to participate in meetings with respect to the identification, evaluation, and educational placement of the child" (20 U.S.C. § 1415(b)(1)). Federal and State regulations governing parental participation require that school districts take steps to ensure that parents are present at their child's IEP meetings or are afforded the opportunity to participate (34 CFR 300.322; 8 NYCRR 200.5(d)). Although school districts must provide an opportunity for parents to participate in the development of their child's IEP, mere parental disagreement with a school district's proposed IEP and placement recommendation does not amount to a denial of meaningful participation (see T.F. v. New York City Dep't of Educ., 2015 WL 5610769, at *5 (S.D.N.Y. 2015); A.P. v. New York City Dep't of Educ., 2015 WL 4597545, at *8, *10 (S.D.N.Y. 2015); E.F. v. New York City Dep't of Educ., 2013 WL 4495676, at *17 (E.D.N.Y. 2013) (stating that "as long as the parents are listened to," the right to participate in the development of the IEP is not impeded, "even if the [district] ultimately decides not to follow the parents' suggestions"]; P.K. v. Bedford Cent. Sch. Dist., 569 F. Supp. 2d 371, 383 (S.D.N.Y. 2008) ("A professional disagreement is not an IDEA violation") (emphasis added); Sch. for Language & Commc'n Dev. v. New York State Dep't of Educ., 2006 WL 2792754, at *7 (E.D.N.Y. 2006) ("Meaningful participation does not require deferral to parent choice")). When determining whether a district complied with the IDEA's procedural requirements, the inquiry focuses on whether the parents "had an adequate opportunity to participate in the development" of their child's IEP (Cerra, 427 F.3d at 192).

It is well established that the consideration of possible recommendations for a student, prior to a CSE meeting, is not prohibited as long as the CSE understands that changes may occur at the CSE meeting (see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 (2d Cir. 2009); Nack v. Orange City Sch. Dist., 454 F.3d 604, 610 (6th Cir. 2006) (noting that "predetermination is not synonymous with preparation"); Deal v. Hamilton County Bd. of Educ., 392 F.3d 840, 857-60 (6th Cir. 2004); M.W. v. New York City Dep't of Educ., 869 F. Supp. 2d 320, 333-34 (E.D.N.Y. 2012), aff'd, 725 F.3d 131 (2d Cir. 2013); D.D-S v. Southold Union Free Sch. Dist., 2011 WL 3919040, at *10-11 (E.D.N.Y. 2011), aff'd, 506 Fed. App'x 80, 2012 WL 6684585 (2d Cir. 2012); B.O. v. Cold Spring Harbor Cent. Sch. Dist., 807 F. Supp. 2d 130, 136 (E.D.N.Y. 2011); A.G. v. Frieden, 2009 WL 806832, at *7 (S.D.N.Y. 2009]; P.K., 569 F. Supp. 2d at 382-83; Danielle G. v. New York City Dep't of Educ., 2008 WL 3286579, at *6-*7 (E.D.N.Y. 2008); M.M. v. New York City Dep't of Educ., 583 F. Supp. 2d 498, 506-07 (S.D.N.Y. 2008); W.S. v. Rye City Sch. Dist., 454 F. Supp. 2d 134, 147-48 (S.D.N.Y. 2006 (see also 34 CFR 300.50(b)(1), (3); 8 NYCRR 200.5(d)(1),(2)). A key factor with regard to predetermination is whether the district has "an open mind as to the content of [the student's] IEP" (T.P., 554 F.3d at 253; see D.D-S., 2011 WL 3919040, at *10-*11; R.R. v. Scarsdale Union Free Sch. Dist., 615 F. Supp. 2d 283, 294 (S.D.N.Y. 2009), aff'd, 366 Fed. App'x 239 (2d Cir. 2010)). In addition, districts are permitted to develop draft IEPs prior to a CSE meeting "'[s]o long as they do not deprive parents of the opportunity to meaningfully participate in the IEP development process'" (Dirocco v. Bd. of Educ., 2013 WL 25959, at *18 (S.D.N.Y. 2013), quoting M.M., 583 F. Supp. 2d at 506). Districts may also "'prepare reports and come with pre[-]formed opinions regarding the best course of action for the [student] as long as they are willing to listen to the parents and parents have the opportunity to make objections and suggestions'" (Dirocco, 2013 WL 25959, at *18).

Based upon the above, the Parent’s mere disagreement with the District’s recommended program does not automatically amount to a denial of her meaningful participating. Also, due to the fact that the Parent’s concerns are stated on both IEPs and there was a discussion at each meeting as to the appropriateness of a 12:1+1 class for the student, it appears that the Parent was listened to as well. Accordingly, it appears that the Parent was afforded meaningful participation in the development of the Student’s IEPs dated March 5, 2021 and June 15, 2021.

D. CSE Teams: The Parents assert in relevant part that the IEP Teams at the meetings held on March 5, 2021 and June 15, 2021 were not appropriately constituted, because the same person is listed as both the school psychologist and district representative and “there is nothing to suggest she had sufficient knowledge of what the District had to offer [the Student] as the teams did not consider anything other than what was available at REDACTED” (IHO Ex. “III” at p. 11-12). However, the Parents fail to cite any authority for such alleged requirement e.g., demonstrating the school psychologist had “sufficient knowledge.” Rather, the regulation is clear, that the “District Representative” who is a requisite team member, “may also be the same individual appointed as the special education teacher or the special education provider of the student or the school psychologist” (8 NYCRR 200.3(a)(1)(v)) (emphasis added). Accordingly, this IHO cannot find that the IEP Teams at the meetings held on March 5, 2021 and June 15, 2021 were improperly constituted.

E. Tuition Reimbursement: A board of education may be required to pay for educational services obtained for a child by the child's parent, (1) if the services offered by the board of education were inadequate or inappropriate, (2) the services selected by the parent were appropriate, and (3) equitable considerations support the parent's claim (Burlington Sch. Comm v. Mass. Dep’t. of Educ., supra; Florence County Sch. Dist. Four et al. v. Carter, supra; see also Frank G. and Dianne G. v. Board of Educ. of Hyde Park, 459 F.3d 356 (2d Cir. 2006), cert denied, Board of Educ. of Hyde Park Cent. Sch. Dist. v. Frank G., 2007 WL 2982269 (2007). Accordingly, the above-stated three (3) prong analysis (the “Burlington/Carter Criteria”) is applied to determine whether the board of education is required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents. Id.

The inquiry made pursuant to the first prong, may go beyond the appropriateness of the student’s IEP and/or placement and encompass other FAPE claims (see 20 USC §1412(a)(10)(C)(ii); 34 C.F.R. §300.148(a) and (c); Forest Grove v. T.A., 557 U.S. 230 (2009); P.C. Oceanside Union Free Sch. Dist., 818 F. Supp. 2d 516 (E.D.N.Y. 2011); Mr. N.C. v. Bedford Cent. Sch. Dist., 300 F. App’x 11 (2d Cir. 2009). To determine whether the school district made FAPE available to the student in a timely matter, Rowley’s two-part test, as modified by Endrew F. v. Douglas County Sch. Dist., RE-1, supra, for appropriateness should be applied. Specifically, the hearing officer must determine whether the school district complied with the procedural requirements of the IDEA and whether the IEP is reasonably calculated to enable the child to make appropriate progress in light of her circumstances. Id. “An appropriate educational program therefore begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services.” (See Application of the Dept. of Educ., Appeal No. 07-018 (2007)). Thus, the annual goals and short-term objectives should be consistent with, and relate to, the identified needs and abilities of the student. See Application of a Student with a Disability, Appeal No. 14-078 (2015) (citing 20 U.S.C. § 1414(d)(1)(A)(i)(II); 34 CFR § 300.320(a)(2)(i); 8 NYCRR § 200.4(d)(2)(iii)).

While the Second Circuit has emphasized that school districts must comply with a checklist of procedures for developing a student’s IEP, the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA. See A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 (2d Cir. 2009). 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 decision-making process regarding the provision of a FAPE to the student; or (c) caused a deprivation of educational benefits to the student (20 U.S.C. §1415(f)(d)(E)(ii); 34 C.F.R. §300.513(a)(2); 8 NYCRR §200.5(j)(4)(ii)).

In the instant case, even though Ms. REDACTED testified regarding the progress the Student made academically and in speech during the 2020/2021 school year when placed in the ICT class, and appropriateness of the IEPs developed at the March and June 2021 IEP team meetings, based upon the Student’s needs, she also testified that the ICT program recommended for the 2021/2022 school year could not provide the intensive daily intervention e.g., targeted reading, writing and math in a small group or individual format recommended by the neuropsychological evaluation, and that a 12:1+1 program could be appropriate for the Student if the other students in the class were appropriate socially, the special education teachers in the ICT class are not trained in dyslexia (even though to the best to her knowledge the speech language teachers have received such training), the IEP team did not consider placing the Student in a 12:1+1 class in a building/school other than REDACTED, and that the IEP Team recommended the assistive technology device because she was not making as much progress as they had hoped in the ICT class (Tr. 280 and Infra).

While even though Ms. REDACTED, the Student’s teacher, testified that the program and services recommended by the IEP Team at the meeting held on March 5, 2021 were appropriate and comported with the recommendations contained in the neuropsychological evaluation, she also testified that the IEP Team did not consider a discuss placing her in a school other than where she was currently attending school, REDACTED, and that in addition to ELA and math, she needed an ICT class for Social Studies, Math and Science, which was not recommended by the IEP Team (see: Tr. 230, 235 and Infra).

Ms. REDACTED, and Dr. REDACTED testified as to why an ICT class is not appropriate for the Student (Parent Ex. “J,” Tr. 418-421, and Infra).

Finally, based upon the IEPs dated December 10, 2019, March 5, 2021, and June 15, 2021(see Parent Ex. “C”, “D”, and “E”, respectively and District Ex. “11”), the Student’s reading skills continued to be “below grade level standards”, writing skills “approaching grade level standards” and that even though she went from “below grade level” to “approaching grade level standards” to “meeting grade level standards” in math, the latter was achieved with one-to-one support, between December 10, 2019 and June 15, 2021 (Id.). In fact, the IEP dated March 5, 2021, reports the Student was making “little progress” on her goals (Parent Ex. “D”).

The Parent therefore presented credible evidence that the ICT class was not appropriate for the Student, in that it would not address her needs e.g., the Student continued not to make progress in the ICT class, except in math where she received 1:1 support, both Ms. REDACTED’s and Ms. REDACTED’s testimony that the IEP Team did not consider placing her in a 12:1+1 class in another building even though the Student could have benefited from such placement if the other students were socially appropriate, Dr. REDACTED’s testimony why the ICT class was not appropriate for the Student even with the provision of the assistive technology device, and the Parents’ testimony how the Student continued to struggle in the ICT class at REDACTED, (see: Infra). Accordingly, the District failed to prove that it had offered the Student a FAPE for the 2021/2022 school year, e.g., that pursuant to the Student’s IEP it offered a program that was “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas County Sch. Dist., RE-1, 137 S. Ct. 988 (2017). In light of this finding by the IHO, it is unnecessary for this IHO to consider the remaining claims regarding whether or not the DOE provided a FAPE to the Student for the 2021/2022 school year. Accordingly, it is this IHO’s finding, as discussed more fully infra that the District denied the Student a FAPE, for the 2021/2022 school year, and it is unnecessary to address the Parents’ remaining allegations in the DPC.

Due to the DOE’s failure to satisfy the first prong of the Burlington/Carter criteria, the burden shifts to the Parents to prove that the unilateral placement was appropriate or proper. Burlington Sch. Comm., 471 U.S. at 369 and 370; see also Florence County Sch. Dist. Four et al. v. Carter, 510 U.S. at 15. In order to meet this burden, the Parents must establish, by a preponderance of the evidence, that the unilateral placement provides “educational instruction specifically designed to meet the unique needs of the student” (Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d. Cir. 2007)). In this regard, the court in Gagliardo explained:

No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. 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.

Id. at 112 (quoting, Frank G., 459 F.3d at 364-65).

However, the private school placement “need not meet the IDEA’s definition of a free and appropriate public education” or “state education standards or requirements” (Frank G. v. Board of Educ., at 364). Moreover, the private placement need not provide certified special education teachers or an IEP. Parental placements are not subject to the same mainstreaming requirements as a school district placement. The private school placement must be reasonably calculated to enable the child to receive educational benefits, and must be likely to produce progress, not regression. Id.

In the instant case, the testimony and documentary evidence overwhelmingly support the Parents’ claim that the Student’s placement at the School provides her with educational instruction that is specifically designed to meet her unique special education needs, supported by such services that are necessary to permit her to benefit from instruction and established that the Student has, in fact, made meaningful progress at the School (see: Parent Ex. “I” at ¶¶17, 18, 20, “J” at ¶¶8-13, 15, 17, 20, Tr. 425-427, and Infra).

The determination of whether, or not equitable factors support a parent’s claim for tuition reimbursement hinges, in large part, on whether, the parent cooperated with the CSE. In the instant matter, the DOE failed to provide any evidence and/or raise any equitable factors, which would preclude or limit tuition reimbursement for the Parent’s unilateral placement of the Student at the School for the 2021/2022 school year. In fact, the only issue that may have impacted upon these equitable factors is the fact that the Parents signed the contract with the School on February 16, 2021, which required a FIVE THOUSAND DOLLAR ($5,000.00) nonrefundable deposit which was made (Parent Ex. “H”, Tr. 357). However, the Parent testified in relevant part that she signed the contract and submitted the deposit at that time in order to “save a seat for [the Student] in the event that we weren't able to get her the support she needed at 144” (Tr. 357). Moreover, when the Parent’s attorney asked, “And what if you had ultimately felt that you were able to get her the support that you needed at REDACTED, what then?”, the Parent testified, “We would have had to have eaten the deposit” (Tr. 358). When the Parent’s attorney asked whether the Parent would be willing to “walk away” from the $5,000 deposit, “which is not an insignificant sum”, the Parent testified, “Yes. And I will say that at this point -- at that point, we had already invested a fair amount of money in getting [the Student] evaluated. And while we are fortunate that we are able to do it, our children's academic and social-emotional wellbeing is a priority to us. And again, we're fortunate to be able to make those financial commitments, the commitment of the deposit” (Tr. 358-359). In addition, even though the Parent provided a ten-day notice of her intention to place the Student at the School, there is no evidence of a reply by the DOE (Parent Ex. “B”).

Based on the foregoing, this IHO finds that the Parents have satisfied the third prong of the Burlington/Carter Criteria for tuition reimbursement. Having met all three (3) of the Burlington/Carter Criteria, and the Parents are entitled to reimbursement for the cost of the Student’s tuition at the School for the 2021/2022 school year. The record in this case establishes that the Student’s total annual tuition at the School for the 2021/2022 school year is SIXTY THREE THOUSAND FIVE HUNDRED DOLLARS ($63,500.00) of which the Parents have paid FOURTEEN THOUSAND FIVE HUNDRED DOLLARS ($14,500.00), leaving a remaining balance of FORTY NINE THOUSAND DOLLARS ($49,000.00) (see: Parent Ex. “K” at ¶22).

F. Transportation: As aforementioned the Parents request the DOE provide “special transportation services,” and “funding/reimbursement for transportation costs incurred from the beginning of the school year until she was provided with transportation,” for the 2021/2022 school year (see: Infra).

1. Special Transportation Services:

The IDEA includes transportation, as well as any modifications or accommodations necessary in order to assist a student to benefit from his or her special education, in its definition of related services (20 U.S.C. § 1401(26); see 34 CFR 300.34(a), (c)(16)). In addition, State law defines special education as "specially designed instruction... and transportation, provided at no cost to the parents to meet the unique needs of a child with a disability," and requires school districts to provide disabled students with "suitable transportation to and from special classes or programs" (Educ. Law §§ 4401(1); 4402(4)(a); see: Educ. Law § 4401(2); 8 NYCRR 200.1(ww)). Specialized transportation must be included on a student's IEP if required to assist the student to benefit from special education (Application of a Child with a Disability, Appeal No. 03-053). If a CSE determines that a student with a disability requires transportation as a related service in order to receive a FAPE, the district must ensure that the student receives the necessary transportation at public expense (Transportation, 71 Fed. Reg. 46576 (Aug. 14, 2006); see 8 NYCRR 200.1(ww)). In addition, the State Education Department has indicated that a CSE should consider a student's mobility, behavior, communication, physical, and health needs when determining whether or not a student requires transportation as a related service, and that an IEP "must include specific transportation recommendations to address each of the student's needs, as appropriate" ("Special Transportation for Students with Disabilities," VESID Mem. (Mar. 2005), available at http://www.p12.nysed.gov/specialed/publications/policy/specialtrans.pdf).

Other relevant considerations may include the student's age, ability to follow directions, ability to function without special transportation, the distance to be traveled, the nature of the area, and the availability of private or public assistance (see Donald B. v. Bd. of Sch. Commrs., 117 F.3d 1371, 1375 (11th Cir. 1997); Malehorn v. Hill City Sch. Dist., 987 F. Supp. 772, 775 (D.S.D. 1997)). Pursuant to the IEP in place at the beginning of the 2021/2022 school year dated June 15, 2021, the Student was not entitled to specialized transportation services (Parent Ex. “E”). However, the Parent testified at the IEP Team meeting held on October 25, 2021 specialized transportation was added to the Student’s IEP (Parent Ex. “K” at ¶24). Nonetheless, the record fails to contain any evidence or testimony explaining what if any factors were considered by the IEP Team when recommending this service. Accordingly, this IHO is unable to rule upon whether or not specialized transportation services are appropriate for the Student.

2. Funding/reimbursement for Transportation costs:

Generally, a student parentally placed in a nonpublic school is entitled to transportation to and from the nonpublic school only if the school is located within fifteen (15) miles of the student's home, unless such the Student is receiving a special education program and/or services similar to special education program recommended by the CSE (see Educ. Law §3635, 4402(4)(d)). As stated above, the burden of proof is on the District during 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 (Educ. Law § 4404(1)(c); see R.E., 694 F.3d at 184-85; M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 (S.D.N.Y. 2010)). Since the Student is receiving a special education program and services at the School, this IHO is not persuaded that the District has established that such programs is insufficiently similar to the program recommended by the District (Educ. Law § 4404[1][c]). Based on the above, the program and services are sufficiently similar to the special education programs and services recommended by the CSE for the 2021-2022 school year to support the Parents' request for transportation.

Moreover, as explained by the SRO in App. No. 18-115 (2018):

... under a more traditional application of the Burlington/Carter framework for tuition reimbursement, an order for tuition reimbursement may very likely have included the costs of the transportation sought by the parent (see Union Sch. Dist. v. Smith, 15 F.3d 1519, 1528 (9th Cir 1994] (finding "that the language and spirit of the IDEA encompass reimbursement for reasonable transportation and lodging expenses... as related services"]; see also Ne. Cent. Sch. Dist. v. Sobol, 79 N.Y.2d 598, 608 [1992] [finding that, since a FAPE included related services such as transportation, an order of reimbursement for transportation was an appropriate remedy for a denial of a FAPE]).

Id (emphasis added).

Accordingly, this IHO’s decision that the Parents are entitled to tuition reimbursement, encompasses reimbursement for the Student’s reasonable transportation to the School for the 2021/2022 school year. In this regard, the Parent testified in relevant part that from the beginning of the 2021/2022 school year to November 15, 2021, the DOE failed to provide transportation for the Student to the School, which consisted of forty-four (44) school days, of which the Parent made seventy-three (73) roundtrips which is eight and two tenths (8.2) miles from their home, and utilized the least expensive option for Uber to drive the Student for the remaining fourteen (14) mornings and one (1) afternoon which cost ONE THOUSAND SEVEN HUNDRED NINETY-THREE DOLLARS AND TWENTY CENTS ($1,793.00) (Parent Ex. “K” at ¶¶24-26; Tr. 367). The Parent explained that only her husband was able to drive the Student to the School because she is REDACTED, and that her husband could not always drive the Student because, “My husband has a global job. He's a REDACTED for a corporation. And there are days where his day starts at 5 in the morning. And obviously, if he is in a meeting or working, he is unable to drive her to school” (Parent Ex. “K” at ¶24, Tr. 365). Thus, the Parents are requesting this IHO order the DOE to reimburse the Parents a total amount of TWO THOUSAND FOUR HUNDRED SIXTY THREE DOLLARS AND SIXTY THREE CENTS ($2,463.63), which is comprised of the aforementioned amount of $1,793.20 and $670.43 (73 roundtrips x 16.4 (8.2 x 2) x $.56/mile (IRS standard rate). Notably, however, when asked if the Parent has receipts for such Uber trips, she testified that they had been provided to her attorney, but had not been entered into evidence (Tr. 365-367).

Nonetheless, based upon the fact that this IHO has found that the Parents are entitled to tuition reimbursement for the Student’s tuition at the School for the 2021/2022 school year, to the extent that the Parent paid for the Student’s transportation and has documents evidencing such payment, the DOE is obligated to fund such transportation to the School for the aforementioned forty-four (44) day period.

ORDER

IT IS HEREBY ORDERED that, within thirty (30) days of the Parent’s submission to the District of documentation evidencing her payment of the Student’s tuition for the School for the 2021/2022 school year, e.g., receipt, cancelled checks, credit card statement, etc., reimburse the Parents in an amount not to exceed of SIXTY THREE THOUSAND FIVE HUNDRED DOLLARS ($63,500.00);

AND IT IS FURTHER ORDERED that no later than thirty (30) days after this Decision, the DOE shall reimburse the Parents for their payment to Uber for the Student’s transportation to the School for the 2021/2022, upon the Parents’ submission to the District evidencing payment for same, in an amount not to exceed of ONE THURSDAND SEVEN HUNDRED NINETY THREE DOLLARS AND TWENTY CENTS ($1,793.00); and AND IT IS FURTHER ORDRED that no later than thirty (30) days after this Decision, the DOE shall reimburse the Parents for their mileage for transporting the Student to the School for the 2021/2022 school year in an amount not to exceed of SIX HUNDRED SEVENTY DOLLARS AND FORTY-THREE CENTS ($670.43);

AND IT IS FURTHER ORDERED that even though the Parents’ request for “special transportation” to the School is denied, the District is obligated to provide the Student with roundtrip transportation between her home and the School for the 2021/2022 school year.

April 24, 2022

Randy Glasser

Randy Glasser, Esq.

Impartial Hearing Officer

NAMES AND TITLES OF APPEARANCES ON HEARING DATES HELD ON

DECEMBER 3, 2021

DOE

REDACTED, Esq.

REDACTED, Speech Language Pathologist

PARENTS

REDACTED, Esq.

REDACTE, Esq.

REDACTED, Parent

REDACTED, Director of Enrollment Management, the School

REDACTED, Head Teacher, the School

JANUARY 12, 2022

DOE

REDACTED, Esq.

REDACTED, Speech Language Pathologist

REDACTED, Special Education Teacher

PARENTS

REDACTED, Esq.

REDACTED, Esq.

REDACTED, Parent

JANUARY 25, 2022

DOE

REDACTED, Esq.

PARENTS

REDACTED, Esq.

REDACTED, Esq.

REDACTED, Parent

REDACTED, Ph.D., Neuropsychologist

DOCUMENTS ENTERED INTO THE RECORD

IHO Exhibits

  • • Email, 2/24/22, 1 page
  • • DOE Closing Brief, 3/14/22, 18 pages
  • • Memorandum of Law In Closing, 3/14/22, 20 pages
  • • Order of Extension, 12/3/2021, 1 page
  • • DOE Exhibits
  • • 2/22/21, DOE Assistive Technology evaluation, 4 pages
  • • 12/7/20 & 12/11/20 REDACTED, REDACTED Neuropsychological evaluation, 19 pages
  • • 3, 2/22/21, Parent concerns, 1 page
  • • 3/5/21, IEP signature sheet, 1 page
  • • 1/16/21, DOE Consent for additional assessments signed by parent, 1 page
  • • 3/5/21, IEP (duplicate), 19 pages
  • • 3/11/21, Prior Written Notice (Notice of Recommendation), 9 pages
  • • 3/5/21, Procurement Order, 3 pages
  • • 6/15/21, IEP meeting notes, 1 page
  • • 6/14/21-6/18/21, SESIS events log, 3 pages
  • • 6/15/21, IEP, 19 pages
  • • 2/2/2021, IEP meeting notice, 3 pages
  • • 6/14/21, Prior Written Notice (Notice of Recommendation), 3 pages
  • • 4/1/21, DOE speech language referral, 3 pages
  • • Parent Exhibits
  • • 10/15/2021, Impartial Hearing Request, 6 pages
  • • 08/20/2021, 10-Day Letter, 2 pages
  • • 12/10/2019, IEP, 14 pages
  • • 03/05/2021, IEP, 14 pages
  • • 06/15/2021, IEP, 15 pages
  • • 2020-2021, [The School’s] Elementary School Program Description, 1 page
  • • Undated, Class Schedule, 1 page
  • • 2020-2021, [The School’s] School Enrollment Contract, 8 pages
  • • 12/01/2021, Affidavit, 4 pages
  • • 12/02/2021, Affidavit, 3 pages
  • • 12/02/2021, Affidavit of Parent, 3 pages
  • • 05/17/2021, Email from Parent to REDACTED, 2 pages
  • • 12/29/2021, Prior Written Notice (Notice of Recommendation), 6 pages

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.

Footnotes

[1] According to the Parents’ attorney at the PHC the Parents are not seeking direct funding (Tr. 10-11).

[2] At the PHC, the Parents’ attorney confirmed that they were not requesting a pendency order by this IHO (Tr. 8).

[3] According to the Parents’ attorney at the PHC, this issue has been resolved, because the DOE is transporting the Student to School, and the Parents’ request for compensatory services is waived (Tr. 10, 11).

[4] Specifically, the teacher testified that the Student’s academic goals were appropriate, “Because they addressed the curriculum that she would be working with through the end of 2nd grade and going into 3rd grade” (Tr. 272).

[5] The Prior Written Notice dated June 14, 2021 states that the Parent requested a reevaluation of the Student on June 10, 2021 (DOE Ex. “13” at p. 1).

[6] The Parent testified that the Student was in first grade during the 2020/2021 school year, which based upon her affidavit appears to have been during the 2019/2020 school year (Parent Ex. “K” at ¶¶3-4).