New York City Department of Education, Impartial Hearing Decision

NYSED # 564622 / NYC # 220161

FINDINGS OF FACT AND DECISION

Case Number: 220161

NYS Case Identifier Number: N/A

Student’s Name: [REDACTED]

Date of Birth: [REDACTED]

Hearing Requested by: Parent

Date of Hearing: 11-22-21

1-26-22

3-10-22

5-11-22

Record Close: 6-22-22

Hearing Officer: Nancy M. Lederman, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED NOVEMBER 22, 2021 *

For the Student:

[REDACTED], ESQ., Attorney

For the Department of Education:

EZRA ZONANA, ESQ., Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY 26, 2022 *

For the Student:

[REDACTED], ESQ., Attorney

For the Department of Education:

[REDACTED], ESQ., Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 10, 2022 *

For the Student:

[REDACTED], ESQ., Attorney

[REDACTED], Parent

For the Department of Education:

[REDACTED], ESQ., Attorney

[REDACTED], Special Education Teacher, P.S. REDACTED

[REDACTED], Assistant Principal, M.S. 54

NAMES AND TITLES OF PERSONS WHO APPEARED MAY 11, 2022 *

For the Student:

[REDACTED], ESQ., Attorney

[REDACTED], Parent

[REDACTED], Clinical Neuropsychologist

[REDACTED], CSE Liaison, [REDACTED]

For the Department of Education:

[REDACTED], ESQ., Attorney

* All parties appeared via telephone or videoconference.

This case was brought before me pursuant to appointment by the New York City Department of Education (DOE) under the Individual with Disabilities Education Act (IDEA), 20 United States Code §1415(f)(1)..

[REDACTED] ([REDACTED]) is a [REDACTED]-year-old student whose parents [REDACTED] and [REDACTED] ([REDACTED], [REDACTED], parents or parent) has brought a hearing claiming that the DOE failed to provide [REDACTED] with a free appropriate public education (FAPE) for the 2021-2022 school year. Ex. A. The hearing convened on November 22, 2021, January 26, 2022, March 10, and May 11, 2022. Post hearing briefs were submitted and extensions were granted in accordance with regulations, resulting in a compliance date of July 22, 2022.

POSITIONS OF THE PARTIES

The due process complaint notice (DPCN) included claims that [REDACTED] had not been provided with a free appropriate public education for the 2021-2022 school year, noting the IEP developed for the child on June 16, 2021 and citing an inadequate program recommendation, inappropriate placement recommendation, inadequate evaluations, inaccurate and inappropriate performance levels, goals, and management needs on the IEP, failure to consider various needs of the child and recommendations, and failure to have a school psychologist attend the IEP meeting. As relief, the parent requested reimbursement for [REDACTED]’s placement at the [REDACTED] ([REDACTED]) for the 2021-2022 school year. Ex. A.

FINDINGS OF FACT

[REDACTED] described [REDACTED] as very hard-working, with notable learning disabilities and ADHD, which present difficulties in pursuing her academics. She perseveres and is a bit of a perfectionist. She started medication for her ADHD in January or February 2020, which has ameliorated her issues to some extent. She’s had a really tough time in terms of decoding, and a little bit of that shows in her mathematical ability, with some gaps in understanding how the numbers work together. Her reading skills and math skills are really at a very basic level. Tr. 153-201.

[REDACTED] described [REDACTED]’s history, noting that she was reluctant reading as a young child, and needed tutoring as early as her kindergarten year. A neuropsychological evaluation done at that time did not diagnose any learning disabilities or ADHD. [REDACTED] continued to have private help in kindergarten and first grade. She began at [REDACTED]in[REDACTED], when the family moved to New York City, and she did well in[REDACTED], although the parent thought she was not absorbing some of the math curriculum and started doing after school tutoring for her to build up math skills. Tr. 153-201.

In the fall of [REDACTED], in the 2019-2020 school year, it was like [REDACTED] “ran into a brick wall,” and she stopped being able to function in the classroom. She was upset, getting bad grades, and something was really wrong, and the parent reached out to [REDACTED] to schedule an evaluation. At the time [REDACTED] was in an integrated co-teaching (ICT) classroom, but just as a general education student in the classroom, without an IEP. She was also receiving private tutoring after school two or three times a week, exhibiting difficulty with her homework from the fall of 2019 up until school shutdown, six months of helping with homework, and reiterating what was taught in the classroom. She was having so many issues functioning in class, and the tutors were helping to digest what she been taught in class each day and going over the homework with her. It was a very intense level of support. Tr. 153-201.

Evaluation, January 2020. Dr. [REDACTED], a clinical neuropsychologist in the [REDACTED] at the [REDACTED], explained that he began a comprehensive evaluation of [REDACTED] in 2019, for a report that was issued January 9, 2020. He stated that she showed a very uneven profile, meeting the criteria for ADHD, specific learning disorder in reading, and a mixed emotional disorder, showing symptoms of anxiety and depressed mood that seemed to be interacting with her academic and social performance. His recommendation was for a structured and intellectually stimulating academic environment, with a low student-teacher ratio and providing her with both large and small group instruction, as well as individualized support. He stated that her difficulties made it important to increase the amount of teacher attention to her academics, not separating her from the large group instruction, but ensuring she had access to small group instruction, targeting her in a more individualized way, thus the lower student teacher ratio recommended in the report. Tr. 117-151; Ex. 2.

IEP meeting, June 8, 2020. At the initial IEP meeting, it was recommended that [REDACTED] continue in ICT class, but with specific support, mostly around reading and trying to build up reading and comprehension skills in a small group environment within the ICT classroom. Tr. 153-201; Ex. 4.

In the summer of 2020, there were two different tutors working with [REDACTED] privately, [REDACTED] on writing and reading, and in math tutor also working with her on [REDACTED] math. [REDACTED] said that she referred [REDACTED] for another evaluation in September 2020, because she wanted to see how she was doing with all the tutoring she had in the summer, and also to see how she was doing as she was taking ADHD medication. She noted there had been a big difference between the neuropsychological she had when she was six years old in terms of her abilities at that time, and the recent January 2020 evaluation, and she thought maybe some of [REDACTED]’s learning deficits would be corrected if she retook the tests having been taking the medication. Tr. 153-201.

Evaluation, September 2020. As noted, the parents sought additional consultation following a different placement for [REDACTED] through the IEP, as well as private instruction she had received. [REDACTED] conducted an evaluation update, dated September 26, 2020. He noted tests that included some repeat measures from the previous evaluation, as well as using parallel on and alternative measures to get indicators of her vocabulary, problem solving, and processing speed. He also noted consultation with [REDACTED], the child’s teacher, and [REDACTED], who has been providing the private instruction. Asked about the duration between testing, [REDACTED] stated that he would have expected to see improvements in her phonological processing and reading fluency, given the instruction support she was receiving. Instead, the results from the second evaluation were a little bit more concerning, given that she had supplemental instruction outside of school. He noted some progress in reading, but less in the phonological processing test, deficits in identifying sounds within words. In the test of word reading efficiency, which is a fluency measure, she scored at the 7th percentile in sight word efficiency, in contrast to her average performance on the WIAT, which was untimed at the single word level. He noted the same gaps in pseudoword decoding and phonemic decoding efficiency, going from the 39th percentile in an untimed format down to the 2nd percentile when timed, which is notably deficient. He described [REDACTED]’s performance in the GORT-5 oral reading test, putting the overall reading process below average level and below grade level. He described the comprehensive nature of her sound errors affecting her reading and her losing comprehension of the material, noting the WIAT reading comprehension at the 37th percentile and at the 16th percentile in the GORT-5, which is the measure of what she has taken away gleaned from the reading material. He also noted her fluency in math ranging from the 2nd to the 5th percentile, showing the deficiency warranting the additional diagnosis of specific learning disorder with impairment in mathematics. The previous diagnosis of unspecified depressive disorder with anxious to stress was removed and considered to be in remission. Tr. 117-151; Ex. C.

The recommendation in the September 2020 neuropsychological report was for [REDACTED] requiring placement in a small structured special-education environment specialized for students with learning disabilities. He described [REDACTED] a student with multiple learning disabilities that have become present in her profile, not making progress despite the supplemental instruction and the different kind of placement with a better student-teacher ratio. He said it was clear that she needed more of a wraparound level of educational care, with supports built directly into the classroom, with reading targeted throughout the day, and mathematics in a more appropriate way for her learning style and her learning capability. Tr. 117-151; Ex. C.

[REDACTED] testified that she provided the evaluation to Ms. REDACTED, the school’s IEP liaison, and [REDACTED], attaching it to the email in which she also asked to set up a meeting to discuss the evaluation. She never had a response from either, and didn’t confirm that they had received the evaluation. She didn’t recall ever discussing the neuropsychological supplement with [REDACTED]. Asked whether she provided it at the June 2021 IEP meeting, she stated that she thought they already had it. It was not discussed at the June 2021 meeting. Tr. 153-201; Ex. D.

2020-2021 school year. [REDACTED] stated that [REDACTED] was a bit rough for [REDACTED], between delays in opening, and remote instruction with alternating days in person two or three days a week. [REDACTED] participated in some sessions when she was home, although a lot of time her camera would be off. According to [REDACTED], she wasn’t learning as much because it was hard for her to absorb, and on days in person she was trying to make up a lot of ground. There were parent-teacher conferences, which reported progress in reading and writing, a little less on math. Tr. 153-201.

[REDACTED], [REDACTED]’s teacher in [REDACTED] and [REDACTED] ICT class at [REDACTED], described [REDACTED] as having difficulty with inferential or higher questions, such as the main idea or theme. In writing she had difficulty revising homework and really needed teacher feedback. In math, she could do well with a skill taught in isolation, but moving on to another skill she needed repetition to progress; multistep problems were difficult for her. Tr. 34-86.

Asked about her performance in the 2020-2021 school year, she described it as a challenging strange year for students in cohorts in hybrid learning until April 2021. [REDACTED] was attending two to three days a week, and the other days she was learning remotely with some support on Zoom from teacher assistants. During the virtual sessions, the class was split into cohorts of five or six students; when the class size returned it was around 18 students. [REDACTED] stated that she was really working with [REDACTED] when she was in the building, for about half or three quarters of the day, always with math, and alternating reading and writing in small groups. She said that it was difficult for the child because they were working on her skills in person, perhaps on Monday and Tuesday, and then on Wednesday to Friday they had independent practice. She stated that it was difficult for [REDACTED] to work independently and do the asynchronous work on the days that she was home. They tried to implement small groups on Zoom for teacher assistants, but it was sometimes hard for her to log on for the small groups, and the consistency she needed was not there. Tr. 34-86.

[REDACTED] described modification to the reading material for students, and scaffolding and support to make sure [REDACTED] had full comprehension before moving on. She also described lots of modeling, going through the passage with the student and telling her what she thought the main idea was, and having her go on to independent practice from there. In writing [REDACTED] would bring her laptop to school and the unit would work on modeling how to use the graphic organizer. On Google classroom, she was able to give [REDACTED] specific feedback right on her documents. In math, she benefited from being told there was a multistep problems, and how many steps and reformatting the question, as well as modeling. [REDACTED] stated that she did see improvement through the school year, that [REDACTED] was able to use those supports, and was an active participant in small groups. Once she was switched to the whole class she was a little bit more reserved, but still tried her best and made progress. She ended the year at a reading level. T, which [REDACTED] stated is approaching grade level, explaining that students are supposed to be at level U at the end of [REDACTED]. She said that support for her social emotional needs came from lots of check-in’s, with students and she was at lunch and talking to kids at lunch with the class each day. Tr. 34-86.

IEP meeting June 18, 2021. The IEP meeting held in June of [REDACTED]’s [REDACTED] year was an annual review. [REDACTED] stated that it was attended by the general education teacher for the class, and both of [REDACTED]’s parents. She explained that at an annual review meeting, the special education teacher holds the meeting, and updates the areas of strengths and needs on the IEP, the social emotional area, and also the annual goals, but they aren’t able to add any services or change classes at an annual review. She testified that there was no need to modify [REDACTED]’s IEP, as she had just received her initial IEP the year before, and every three years there is a triennial review. As it had been only a year, and she was making progress in the ICT class and wasn’t getting any related services, they didn’t feel that she needed any added. Tr. 34-86; Ex. 6.

Asked what documents she reviewed for the IEP meeting, [REDACTED] said that before any student’s IEP meeting, she looks over the current work, and as it was June, she had just given [REDACTED] a reading level assessment one-on-one, so she looked through that. She confirmed that didn’t review anything more than the assessments and class work material, and it wasn’t necessary to review any additional documents as that was the most current information for [REDACTED]. Tr. 34-86.

[REDACTED] was also asked what documents were reviewed during the meeting, and said “It was just the IEP itself,” clarifying that she was referring to the IEP from the previous year. There was no review or discussion of the neuropsychological evaluation update of September 2020. She also didn’t recall any discussion of the Fountas and Pinnell assessment indicated on the IEP. There was a discussion of her reading level, that she wasn’t quite reading up to grade level, and would need continued support. Tr. 153-201; Ex. 6.

When asked if she reviewed the neuropsychologist report at the IEP meeting in June 2021, [REDACTED] stated that she had already reviewed it, so she didn’t need to review it again a year later. Asked about the subsequent evaluation update in September 2020, [REDACTED] stated that she didn’t recall receiving a September 2020 evaluation in November 2020. Upon reviewing the November 4, 2020 email addressed to her and [REDACTED], the school’s IEP teacher, she conceded that she emailed with the parent; she also testified that she received the neuropsychological supplement and that she had had a discussion with the parent that there was a supplement. Tr. 34-86; Ex. D.

Although the email expressly asked to set up a meeting to discuss the supplement, the next formal meeting was not until the June 18, 2021 IEP meeting. [REDACTED] stated that the email included [REDACTED], who spoke to [REDACTED]’s parents after receiving that email. [REDACTED] stated she was not involved in that meeting, but there was a parent-teacher conferences in March 2021 before the June 2021 IEP meeting, although she testified that the neuropsychological supplements wasn’t reviewed at that conference as it wasn’t the purpose of the parent-teacher conference. [REDACTED] stated that she reviewed it on her own, stating that “if I received it, I definitely would review it on my own.” She testified that she did not review it in anticipation of the June 18, 2021 IEP meeting. [REDACTED] confirmed that there was no school psychologist at the meeting, because it was an annual review. She explained that if at the annual review meeting they discussed that the program should be changed, she would contact the psychologist to hold another meeting or joined the meeting. Tr. 34-86.

The recommendation was for continued ICT-type support for math, for reading and writing, as part of a general education process. The IEP stated that other options considered included general education, and special education teacher support services. Ex. 6. According to [REDACTED], the recommendation was for an ICT class, as [REDACTED] was doing well in an ICT class. Despite the unusual circumstances of being hybrid for most of the year, she was still making progress, and they felt she could benefit from being in a class with students working at grade level across subject areas. Tr. 34-86.

She confirmed that a general education class, with SETSS, was also considered but they felt the ICT was appropriate, as she needs more help across subject areas. [REDACTED] stated there was no disagreement with the program recommendation, the parents had asked how she would do in an ICT class, and they were told that if she wasn’t doing well, they could always revisit with teachers and asked for reevaluation. Tr. 34-86.

[REDACTED] said she wasn’t aware of any other programs being discussed that was shared with her. In regard to the goals, she said it was “pretty high level,” providing a lot of scaffolding around skills and support to transition into writing. She said it was very generic, obviously educational advancement was the goal. She said that she didn’t have an opinion regarding the recommended ICT support, except that she was worried that it might not be enough for [REDACTED] as it wasn’t really addressing some of the decoding or building block things she thought [REDACTED] was missing. She stated that at the meeting, and was told they thought it would be sufficient and most appropriate environment for her. She stated she had concerns that the recommendation of June 2021 meeting, whether the level of support suggested would be enough, and she agreed the concerns were in part based upon the updated supplement and also her progress during the academic year. She stated that she expressed concerns about whether or not it would be sufficient. Tr. 153-201; Ex. 6.

[REDACTED] testified that the goals, stating that they addressed are areas of weakness and they were as she would be going on to [REDACTED] in sixth grade. They were measurable, and they were discussed with the team and parents, without any objection. Management needs were also created. She acknowledge that grade level expectations for [REDACTED] are S and T at the beginning of the school year. Asked whether grade level U for students at the end of the [REDACTED] is considered not meeting expectations and needing intensive interventions per Fountas and Pinnell, she said that she does not know if the rubric they use was the official regular rubric because of the differences and challenges that year, there was an understanding that students might be behind where they would be in a normal year. Asked about the rubric that was used, [REDACTED] said it’s “not exactly rubric,” just where students should be at each point of the year, broken up by months. Given that there were four categories from assessing the child’s reading level, according to [REDACTED], she was asked what intervention would be recommended based on those categories, and she said she was not familiar with the four specific categories. She confirmed her opinion that a [REDACTED] students at grade level should be at a level U at the end of the school year, and that there was no formal evaluation done to determine math grade level. [REDACTED] stated that it could be more complex, but it was not possible to indicate that on the IEP. She was having issues with decoding, automatic naming, retrieval and fluency, and she also has difficulty with her spelling, although she could use spell check. The computer and the technology was beneficial for her, including the Google classroom. [REDACTED] said that she was still below grade level, but she wasn’t a full year below grade level. So she was a grade level the year before. Tr. 34-86.

[REDACTED], [REDACTED] School. The DOE did not recommend a specific school to implement the IEP. Prior to the meeting, [REDACTED] had received a placement notice concerning placement at [REDACTED], [REDACTED] School, through the lottery system, accepting and emailing the principal. She said she began emailing in May 2021, although documents only reflect August 2021 correspondence. She stated that she wanted to understand what the school was going to offer in terms of meeting [REDACTED]s IEP. She said that she want to hear from the school about how they were going to meet her needs. The principal asked her questions about what she was seeking; [REDACTED] testified that she responded by saying she was looking for a full-time special education program for [REDACTED], although the email correspondence only indicate she said she was awaiting a placement recommendation based on the IEP. Tr. 153-201; Ex. E.

[REDACTED], an assistant principal at [REDACTED], testified that she oversees the special education department and the student support team and the school. She described the school as a large [REDACTED], stating that the special education program included small self-contained 12:1:1 classes and ICT classes, as well as offering SETSS. The school also has related services provided, including physical therapy, speech and language services, counseling, occupational therapy, and assistive technology. Tr. 89-99.

She stated that the first day of school in the 2021-2021 school year was September 13, 2021, and that there were ICT classes for sixth-graders available, with spots available. She stated that she reviewed the child’s IEP and the [REDACTED] offer letter, and there was a seat available for [REDACTED] in the ICT classroom. She testified that the school would been able to implement the child’s IEP for the school year. [REDACTED] explained the class schedule, stated that there were five periods entitled ELA per week, which is one per day, and two language periods per week, which for [REDACTED] would be reading class. She then added social studies, described as the “old humanities program,” at five periods per week, saying that would be 12 periods per week where the child’s ELA skills would be addressed. Tr. 89-99; Ex. 8.

[REDACTED] stated that she didn’t go to the school, that information was available but there were no tours of the school at the time of the lottery or after the acceptance. She did not know whether there had been a virtual tour available. She didn’t inquire in her emails to the principal regarding the programs offered at the school. Tr. 153-201.

[REDACTED], 2021-2022. Based on the neuropsych supplement and what she was seeing, [REDACTED] explained that she thought [REDACTED] should be in a full-time special education environment. [REDACTED] said that she didn’t really have any information about what [REDACTED] would provide for her and she didn’t visit [REDACTED] prior to enrolling [REDACTED] or any schools in 2020 to 2021 because schools weren’t open. She said that [REDACTED] had multiple periods focused on language arts, and the entire curriculum was based on remediating language-based learning disabilities, which she described as the intense remediation [REDACTED] needed to address her learning disabilities. Tr. 153-201.

[REDACTED]. CSE and parent liaison at [REDACTED], described [REDACTED] as a full-time special education, private school with three campuses. The school serves students with learning disabilities, who have been unsuccessful in learning to read and write. Criteria for admission include average or above average cognitive potential, a diagnosed language-based learning disability, which may be accompanied by attention difficulties, and without any significant behaviors to interfere with learning. Tr. 205-235.

[REDACTED] is a [REDACTED] student at the [REDACTED] campus, which has about 380 students. Teachers all have BAs, many with Master’s in education as well as training at [REDACTED]. Students are grouped homogeneously in ELA and math, with others who learn at a similar pace. [REDACTED]’s language arts group moves at a slower pace for 6th grade. It is the same group and the same teachers for reading, writing and skills. There are ten students and a teacher and teacher assistant in her language arts class, six students and one teacher in math. [REDACTED], her ELA teacher, has a Master's in education and is certified in special education. [REDACTED], her math teacher, also has a Master's in education and is has state certification. The assistant teacher in ELA has a college degree. Tr. 205-235.

[REDACTED] has three periods of English language arts, a reading class based on Preventing Academic Failure, a multi-sensory Orton-REDACTEDingham program for small class instruction, a writing class focused on written expression, and a skills class for additional practice in the decoding and encoding. She also has one period of math, and science and social studies every day, with a focus period at the end of the day for organization, homework, and teachers help. Tr. 205-235; Ex. F.

[REDACTED] described [REDACTED]’s difficulties in decoding, struggling with multisyllabic words and reading at a slower pace that impedes accuracy. She noted written expression as another area of weakness, requiring direct instruction for all sentence writing. [REDACTED]’s distraction requires frequent prompts from the teacher to stay on task, with consistent redirection and refocusing during the class. She noted work for comprehension that included checks-ins, modeling, scaffolding, prompting, and teacher directing to connect. She also described a very structured writing program focused on 12 sentence writing skills. In math, she struggles with computation. The program uses a multisensory curriculum, modeled on Singapore Math, which focuses on really teaching students to understand math concepts, making anything abstract concrete and breaking down the language in math. Tr. 205-235.

Asked about progress, [REDACTED] testified that seems much more comfortable, and she trusts the process of the program. She understands that everything is at a slower pace and being broken down to help her understand, and she's more confident and comfortable, and participating more. She stated that [REDACTED] displays more comprehension, and is taking more risks to answer comprehension questions. She noted the progress reports as revealing improvement in all areas, in all of her academic classes. Exs. L, M. The winter progress report stated steady improvement in understanding key concepts in math, and classwork showing her grasp of algebraic procedures. She also was beginning to internalize writing strategies. Science and social studies earned marks of demonstrating progress or approaching proficiency. Tr. 205-235; Exs. L, M.

[REDACTED] stated that [REDACTED] made progress at [REDACTED], providing the remediation [REDACTED] needed, as she was in a very small class environment, noting a math class with five students, and language arts periods with four students. [REDACTED] stated that [REDACTED] is doing well in school, her confidence is up, and her skills are progressing. She cited specific progress in understanding math concepts better, reading more fluently and aloud without hesitation and more rapidly. In addition to comprehending, she is retaining information and doing well on tests. She also noted [REDACTED]’s ability to digest complex passages of nonfiction for social studies and science without a lot of the difficulty tracking and retaining the material that she had seen in fourth and [REDACTED]. Tr. 153-201.

Contract. The parents’ contract with [REDACTED] for the 2021-2022 school year specified a tuition fee of $64,400. Two payment plan for an additional 350. Ex. G. [REDACTED] stated that the tuition was “65,600 some-odd dollars,” and that all that had been paid as noted on the affidavit from the school. The affidavit from a [REDACTED] official indicated tuition of $64,400 plus unspecified “miscellaneous fees of $1,565.” Exs. G, N.

The contract with [REDACTED] was signed on February 28, 2021. The parent explained that she wasn’t sure what kind of program [REDACTED] would be offered from [REDACTED] or whatever school [REDACTED] would wind up in the sixth grade at that point, and she wanted to keep her options open. She noted that [REDACTED] had clearly recommended a special education, environment with a lot of specific support, remediation and instruction in phonics, and she wasn’t sure the city public school would be able to provide what she needed. She said if what the city offered was sufficient, she would have considered walking away. Tr. 153-201.

CONCLUSIONS OF LAW

The decision in this case rests on a determination of the three-pronged test set forth by the United States Supreme Court in the Burlington case, which provided that a board of education may be required to pay for educational services obtained for a child by the child’s parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim. School Committee of the Town of Burlington v. Dept. of Educ., Massachusetts, 471 U.S. 359 (1985); Florence County Sch. Dist. Four v. Carter, 510 US 7 (1993).

ISSUE 1 - Appropriateness of School District Program

A central purpose of the Individuals with Disabilities Education Act (IDEA) is to ensure that students with disabilities have available to them a free appropriate public education (FAPE). 20 U.S.C. § 1400(d)(1)(A); see Schaffer v. Weast, 126 S. Ct. 528 (2005); Bd. of Educ. v. Rowley, 458 U.S.176 (1982); Frank G. v. Bd. of Educ., 459 F.3d 356 (2d Cir. 2006). A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP, which is reasonably calculated to enable the student to receive educational benefit. See Bd. of Educ. v. Rowley, 458 U.S.176 (1982); 20 U.S.C. § 1401(9)(D); 34 C.F.R. § 300.17; see 20 U.S.C. § 1414(d); 34 C.F.R. § 300.22. The student's recommended program must also be provided in the least restrictive environment (LRE). 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. § 300.114(a)(2); 8 NYCRR 200.6(a)(1).

In this case I find that the DOE has failed to sustain its burden and failed to offer [REDACTED] a free appropriate public education for the 2021-2022 school years.

There were multiple claims in the DPCN, and discussion begins with the many claims that do not contribute to my finding. I discount the claims concerning flaws in the present levels of performance, management needs, and goals on the IEP. I credit [REDACTED]’s testimony concerning the accuracy of performance levels, development of management needs, and measurable annual goals. The claim that [REDACTED] did not make progress, automatically requiring a change in the program, is similar without merit. Again, I credit [REDACTED]’s testimony concerning the child’s progress in the school year in question. Despite argument, there was no real challenge in the record to her testimony in regard to these issues. I also discount the claim concerning language challenges not being addressed as not being specific enough to know what it means. As for social emotional challenges, that also was addressed by [REDACTED]’s testimony concerning [REDACTED]’s participation in class, and noting check-in’s with students and she was at lunch and talking to kids at lunch with the class. In that regard, I note that [REDACTED]’s evaluation of the child at the beginning of the school year in question had eliminated the child’s mixed diagnosis of depression/anxiety. Similarly the claim that the program cannot offer a suitable and functional peer grouping is belied by testimony concerning the basis of the ICT recommendation, and as for the claim that peer-reviewed research-based methods were not included, there is no authority for methodology to be included on an IEP.

In regard to the claim that [REDACTED] was not evaluated in all areas of suspected disability, subject to the finding below concerning the neuropsychological evaluation that was not before the IEP team, I discount the claim and credit [REDACTED]’s testimony about the requirements of an annual review and the testing that had been done for the initial IEP meeting the year before. As for the claim that an assistive technology evaluation was not recommended, while it was undisputed that the child benefitted from the technology used during remote instruction, this was not sufficient evidence to warrant a requirement that an AT evaluation be considered.

Finally, the claim that the recommended placement cannot implement the IEP is without merit. While the decision below details my conclusions concerning the program recommendation as inappropriate, the claim in the DPCN specifically addresses the ability of the placement recommendation to implement the IEP, further stating that it cannot provide the mandated services recommended in the IEP. I credit [REDACTED] concerning both the availability of an ICT class as well as related services available at the school. (Of course, the ruling below basically nullifies the appropriateness of the [REDACTED] placement recommendation.)

Turning to the finding that the district failed to provide a FAPE for [REDACTED], the decision is based on a number of factors compelling a conclusion that the program recommendation was not appropriate. These include the absence of any consideration of the September 2020 neuropsychological evaluation that was provided by the parent, the failure of the IEP team to consider any more intensive special education program than the general education ICT class despite parent requests, the failure to include a school psychologist in the meeting to consider a change in the program, and the specific recommendations for a small structured special education environment that would and should have been considered had the June 2021 IEP meeting properly addressed [REDACTED]’s report.

The recommendation in the September 2020 neuropsychological report was for [REDACTED] requiring placement in a small structured special-education environment specialist for students with learning disabilities. He described [REDACTED] a student with multiple learning disabilities that have become present in her profile, not making progress despite the supplemental instruction and the different kind of placement with a better student-teacher ratio. He said it was clear that she needed more of a wraparound level of educational care, with supports built directly into the classroom, with reading targeted throughout the day, and mathematics in a more appropriate way for her learning style and her learning capability.

The parent wrote about the evaluation in November 2020, forwarding it to the district. The district’s argument that the email doesn’t indicate an attachment belies [REDACTED]’s testimony, after first insisting that she had read the evaluation a year before, agreeing that that she received it and further that Ms. REDACTED spoke with the parents about it. The district’s attempt to blame the parent for not following up on confirming receipt given the district’s failure to act misunderstands the respective duties of the parties. The parent made an express request, which was ignored, and then it was not discussed at the IEP meeting. While the IEP team may choose not to adopt recommendations concerning a child, it cannot refuse to hear them and have them discussed. The parent further stated her concerns about the sufficiency of the ICT recommendation at the meeting, testifying that were in part based upon the updated supplement as well as her progress during the academic year. Yet the IEP team failed to consider anything other than even less restive programs with less support, considering only general education and SETSS

It also didn’t matter whether the school psychologist had ever talked to the parent about it or not. The parents expressed their concerns about the sufficiency of repeating an ICT placement, which was ignored. That, along with the failure to consider the neuropsychological evaluation include the failure to have a psychologist participate in the meeting. As [REDACTED] explained, if at the annual review meeting, they discussed that the program should be changed, she would contact the psychologist to hold another meeting or joined the meeting. Yet when the parents questioned the ICT class, instead of considering additional support they were told that if she wasn’t doing well, they could always revisit with teachers and asked for reevaluation. Amazingly, they had already done that in November 2020, without response.

In summary, the failure of the IEP team to consider the neuropsychological evaluation update, the failure to address the parent’s concerns for special education program with more supports by considering a more intensive program, and the failure to have a psychologist present to discuss the possibility of a more intensive special education program as recommended therein adds up to a denial of FAPE. It makes the defense of the program recommendation essentially worthless.

For the reasons noted above, I find the district failed to provide FAPE to [REDACTED].

ISSUE 2 - Appropriateness of Parent Placement

Under the second prong of Burlington, the parents bear the burden of proving the appropriateness of the services sought for IR. M.S. v. Board of Education of the City of Yonkers, 231 F.3d 96, 104 (2d Cir. 2000); Application of a Child with a Disability, Appeal No. 99-51; Application of a Child with a Disability, Appeal No. 94-29; Application of a Child with a Disability, Appeal No. 95-57. In order to meet that burden, the parents must show that the [REDACTED] offered an educational program designed to meet [REDACTED]’s special education needs. School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); Application of a Child with a Disability, Appeal No. 99-51; Application of a Child with a Disability, Appeal No. 98-76; Application of a Child with a Disability, Appeal No. 94-29. A unilateral placement is only appropriate if it provides education instruction specifically designed to meet the unique needs of a handicapped child. Gagliardo v. Arlington Central School District, 489 F.3d 105 (2d Cir. 2007).

I find that the parents have sustained their burden of demonstrating the appropriateness of the program at [REDACTED] for [REDACTED] for the 2021-2022 school year.

The district objected to [REDACTED], arguing it was too restrictive a placement and outside the standards for a least restrictive environment. [REDACTED] is an exclusively special education school, and the classes the child was in are also small classes. The restiveness of a private placement may be a factor in determining the t appropriateness of a nonpublic placement, but it is only a factor to be considered, not dispositive. As a general statement, the placement is reasonably calculated to enable the child to receive educational benefit. M.S. v. Bd. of Educ., 231 F.3d 96, C.L. v. Scarsdale UFSD, 744 F.3d 826 (2d Cir. 2014), Frank G. v. Bd. of Educ., 459 F.3d 356 (2d Cir. 2006).

Any argument concerning restrictiveness must start with [REDACTED]’s report. The neuropsychological evaluation was clear that [REDACTED] required placement in a small structured special-education environment specialized for students with learning disabilities. It was also noteworthy that in recommending this placement, [REDACTED] was overruling his own previous recommendation for large and small group instruction, concluding that she needed more of a wraparound level of educational care with supports built directly into the classroom, with reading targeted throughout the day, and mathematics in a more appropriate way for her learning style and her learning capability.

His recommendation outweighs any argument from the district concerning restrictiveness, and is supported by the evidence describing [REDACTED]’s program at [REDACTED]. I credit the description of [REDACTED] concerning the high level of teacher support [REDACTED] receives, particularly in the extensive ELA classes, and the improvement she has shown in reading. The parent also testified about the benefit of the multiple periods focused on language arts, noting that the curriculum provided the intense remediation [REDACTED] needed. [REDACTED] also cited specific progress in understanding math concepts better, reading more fluently and aloud without hesitation and more rapidly. Of particular note is her observation that [REDACTED] is retaining information, doing well on tests, and digest complex passages for social studies and science without the difficulty she had previously shown in tracking and retaining material. Her observations in this regard were confirmed by the progress reports form the school.

Under the circumstances, I find that the parents have sustained their burden of demonstrating the appropriateness of the program at [REDACTED] for [REDACTED] for the 2021-2022 school year.

ISSUE 3 - Equitable Considerations The third prong of the Burlington decision requires a balancing of the equities in determining whether reimbursement should be awarded. The Individuals with Disabilities Education Act (IDEA) provides that an award of tuition reimbursement may be reduced or denied if notwithstanding their being advised that they should do so, parents neither inform the CSE of their disagreement with its proposed placement and their intent to place their child in a private school at public expense at the most recent CSE meeting prior to their removal of the child from public school, nor provide the school district with written notice of such information ten business days before such removal. 20 U.S.C. 1412(a)(10)(C)(iii).

In this case, there was no evidence that the parent did anything but cooperate with the DOE, attending the IEP meeting and forwarding the required ten-day notice. The district’s objection to the timing of signing a contract ignores the clause in the contract allowing cancellation before July 1, 2021 without penalty other than the $5,000 deposit and the parent’s testimony that she would have considered an appropriate public school placement. Ex. G. The credibility of her testimony was supported by the child’s two years of attendance in the ICT class at the public school. I also note the contract was signed some months after the district failed to respond to the parent’s request to meet to review the neuropsychological supplement submitted. Equities cannot be said to support the district, given its own failure to act in a timely and appropriate manner.

Under the circumstances, there is no evidence to warrant any denial or reduction of an award.

ORDER

• • The DOE shall reimburse the parents $64,400 for [REDACTED]’s tuition at the [REDACTED] for the 2021-2022 school.

IT IS SO ORDERED.

Dated: July 6, 2022

__Nancy M. Lederman_______ NANCY M. LEDERMAN

Impartial Hearing Officer

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 proceedings 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.

EXHIBITS

DEPARTMENT OF EDUCATION EXHIBITS

1 Consent for electronic mail, 5/1/20, 1 page

2 Neuropsychological evaluation, 1/9/20, 20 pages

3 Social history report, 5/21/20, 3 pages

4 IEP, 6/8/20, 18 pages

5 Notice of IEP meeting, 6/9/21, 3 pages

6 IEP, 6/18/21, 18 pages

7 Prior written notice, 6/25/21, 4 pages

8 [REDACTED] admission office stated offer, 5/21, 5 pages

9 Closing brief, DOE, 6/10/22, 16 pages *

PARENT EXHIBITS **

A Due process request, 10/22/21, 4 pages

B Notice of placement, 8/25/21, 3 pages

C Evaluation update, 9/26/20, nine pages

D Email from parent, 11/4/20, 1 page

E Email exchange, 8/21, seven pages

F [REDACTED] class schedule, 2021/2022, 1 page

G [REDACTED] enrollment contract, 2/28/21, 3 pages

H Quarter one report, 2021/2022 6 pages

I Email exchange between parent and public school, 5/19/21, 5/25/21, 2 pages

J Email exchange between parent and public school, 8/2/21, 8/4/21, 1 page

L Winter progress report, 2021/2022, 6 pages

M [REDACTED] quarter 2 report card, 2021/2022, 3 pages

N Payment affidavit, [REDACTED], 1/28/22, 1 page

O Closing statement, [REDACTED], 6/10/22, 29 pages *

* Parties’ closing briefs were submitted post-hearing.

** There was no exhibit K entered into evidence.