New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 566448 - NYC: 221801

FINDINGS OF FACT AND DECISION

Case Number: 221801

Student’s Name:^[1] “Student”

School District: New York City Department of Education Hearing Requested by: “Parent” Request Date/Date Complaint Filed: November 18, 2021

Date(s) of Hearing: May 27, 2022; June 9, 2022

Actual Record Closed Date: March 21, 2023

Date of Decision: April 4, 2023

Date of Distribution if Different than Decision Date:

Hearing Officer: Amy Lynne Itzla, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 27, 2022

For the Student:

REDACTED, Esq., Attorney

REDACTED, Parent

REDACTED, Parent For the DOE:

REDACTED, Esq., Attorney

REDACTED, Special Education Teacher, PS REDACTED REDACTED, Certified School Psychologist, PS REDACTED REDACTED, Esq., Attorney (Observer)

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 9, 2022

For the Student:

REDACTED, Esq., Attorney

REDACTED, Parent

REDACTED, School Psychologist, REDACTED (“the Private School”)

REDACTED, Pediatric Neuropsychologist For the DOE:

REDACTED, Esq., Attorney

INTRODUCTION AND PROCEDURAL HISTORY

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on the Parent’s Due Process Complaint (“DPC") filed on or about November 18, 2021. (Exhibit A)^[2] The undersigned Impartial Hearing Officer (“IHO”) was appointed to this matter on January 31, 2022, by the New York City Department of Education (“DOE”).

A hearing was held on May 27, 2022, and June 9, 2022. It was a closed hearing, conducted by video/teleconference, with the presence of a court reporter to create a written transcript. The Parent was represented by REDACTED, Esq. The DOE was represented by REDACTED, Esq. A list of the individuals who appeared at the hearing and a list of the documents received into evidence are attached to this decision. The record was closed on March 21, 2023.

In scheduling the hearing date, and throughout this proceeding, this Impartial Hearing Officer granted multiple requests by the parties for extensions of the 45-day timeline for the due process hearing, pursuant to 34 C.F.R. §300.515(a). The requests were granted, in accordance with 34 C.F.R. §300.515(c), and after full consideration of the cumulative impact of the following factors: 1) the impact on the child’s educational interest or well-being which might be occasioned by the delay; 2) the need of a party for additional time to prepare or present the party’s position at the hearing in accordance with the requirements of due process; 3) any financial or other detrimental consequences likely to be suffered by a party in the event of delay; and, 4) whether there has already been a delay in the proceeding through the actions of one of the parties. [8 NYCCR §200.5(j)(5)(ii)]

JURISDICTION

The due process hearing was held and the Findings of Fact and Decision in this matter is being issued pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.

BACKGROUND

STUDENT was REDACTED years old when entering the 2021-2022 school year as a second grade student. They had been classified by the Department of Education (“DOE”), through its Committee on Special Education (“CSE”), as a student with a disability, with the classification of Learning Disability.^[3] The CSE convened on April 22, 2021, to develop an Individualized Education Program (“IEP”) for STUDENT for the 2021-2022 school year. At that time, STUDENT had been attending PS REDACTED. The CSE recommended that STUDENT continue in the program of an Integrated Co-Teaching class (“ICT”) with individual, direct Special Education Teacher Support Services (“SETSS”) five periods a week, along with the related services of individual speech-language therapy, twice a week for 30-minute sessions, and group speech-language therapy once a week for a 30-minute session. (DOE Exhibit 1)

By letter dated May 21, 2021, to the Principal of PS REDACTED, the Parent expressed disagreement with the CSE’s IEP for the 2021-2022 school year, explained their concerns, and notified the DOE that they had signed a contract with the REDACTED (“the Private School”) to reserve a seat for STUDENT for the 2021-2022 school year. The Parent informed the DOE that, if the DOE did not offer an appropriate program to STUDENT for the 2021-2022 school year, they would be attending the Private School. (Parent Exhibit L)

By letter dated August 23, 2021, the Parent submitted “Dr. REDACTED’s (“Neuropsychologist”) August 2021 Educational Re-Evaluation Report” for consideration by the DOE. (Parent Exhibit M)

By letter dated August 24, 2021, the Parent notified the DOE that “unless the DOE can provide STUDENT with an appropriate education, we are withdrawing STUDENT from PS REDACTED for the 2021-2022 school year” and “unilaterally enrolling STUDENT at the Private School for the 2021-2022 school year. The Private School specializes in educating students with language-based learning disabilities.” The Parent stated their intention to seek reimbursement for STUDENT tuition at the Private School. (Parent Exhibit B)

The Parent asserts that the DOE denied STUDENT a Free Appropriate Public Education (“FAPE”) for the 2021-2022 school year. (Exhibit A)

POSITIONS OF THE PARTIES

THE DOE’S CASE The DOE presented the testimony of two witnesses: REDACTED, Special Education Teacher (“Special Education Teacher”) at PS REDACTED; and, REDACTED, Certified School Psychologist (“School Psychologist”) at PS REDACTED. The direct testimony of the witnesses was presented through sworn affidavits. The witnesses appeared for the hearing for the Parent's cross-examination.

Special Education Teacher provided his direct testimony through a sworn affidavit, which is fully considered part of this decision although not included in its entirety. (DOE Exhibit 11; T. 25-26) Special Education Teacher was STUDENT’s homeroom teacher for all academic classes that were provided in an ICT classroom during the 2020-2021 school year and also provided SETSS to STUDENT from September 2020 through December 2020, twice a week for one hour on each of those days. He believes other SETSS teachers provided that level of service to STUDENT in the second half of the 2020-2021 school year. (T. 26-29)

Special Education Teacher explained that, when STUDENT started 1st grade, their “readiness level” or “grade level” in reading was at the first half of kindergarten. At the end of the 2020-2021 school year, STUDENT was at the end of kindergarten level. He confirmed that STUDENT’s reading level was a full year behind. (T. 33-34) Special Education Teacher testified that there were between twenty to twenty-five students in the class and five of them, including STUDENT, had IEPs. Of those students, STUDENT made the least amount of progress in reading. Special Education Teacher confirmed that, according to the IEP in place for the 2020-2021 school year, STUDENT’s full-scale IQ was in the high-average range, and they are a bright child. (Parent Exhibit K; T. 36-38)

Special Education Teacher participated in the IEP meetings on February 8, 2021, and April 22, 2021. He stated that The IEP dated April 22, 2021, was actually drafted at the meeting on February 8, 2021. (DOE Exhibit 1) The reason for the meeting on April 22, 2021, was to consider a neuropsychological evaluation obtained by the Parent and provided to the DOE. Special Education Teacher testified that, based on the assessments he conducted in April 2021, STUDENT was not yet at the reading level they reached by the end of the school year. (DOE Exhibits 3, 4; T. 44; 47-50)

Special Education Teacher explained the program recommended in the April 22, 2021, IEP. ICT for ELA, 10 periods per week, in the general education classroom, would mean that, twice a day, STUDENT would have received instruction in a small group or one-to-one. Although that is not actually indicated on the IEP, and the IEP says it would be provided in the “general education classroom,” he stated, “that’s how it’s usually conducted in the ICT classroom.” However, ICT for Math, 5 periods per week, and ICT for Social Studies, 3 periods per week, would be instruction as a whole class. Special Education Teacher did not have a reason for why the IEP did not specify that ICT for ELA would be provided in a small group. He acknowledged that the IEP shows that ELA, Math, and Social Studies would all be provided in the large classroom and that, from the IEP, a teacher would understand that to be the environment in which the goals were to be worked on. (T. 61-64) The SETSS for ELA of five period per weeks, “Push-in/Pull-out,” would be individually provided inside or outside of the classroom. (T. 72)

Special Education Teacher confirmed that there was a discussion during the April 22, 2021, meeting about the neuropsychological evaluation of Neuropsychologist and her findings, as well as about the progress made by STUDENT and recommendations to support them going forward. He confirmed that it was decided not to make any changes in the IEP or recommendation. With regard to the decision-making process, he testified that, “it was School Psychologist who ran the meeting. She had said that STUDENT had made progress with the current program, and because it was a pandemic - we were in the pandemic - and because the school year was so affected because of it that because STUDENT had made progress that she didn’t deem it necessary that STUDENT needed a different program.” It was expected that STUDENT would make similar progress going forward, albeit not at the same rate as their peers. (T. 65-66)

School Psychologist provided her direct testimony through a sworn affidavit, which is fully considered part of this decision although not included in its entirety. (DOE Exhibit 10; T. 75-76) School Psychologist could not recall if she attended the February 8, 2021, IEP meeting for STUDENT (T. 79-80) She did recall attending the April 22, 2021, IEP meeting and that it was a “reconvene” to review the findings of Neuropsychologist. School Psychologist testified that, according to the IEP,” [D]uring the meeting parents expressed concerns that STUDENT’s reading ability is not commensurate with the same age peers, and they are concerned that he will continue to fall further behind despite continuation of parent supports in place.” When School Psychologist was asked if that concern was addressed during the meeting, she responded, “Yes, it was - the concern was addressed.” She then explained how it was addressed: “We talked about and highlighted that she is making progress, and we talked about what was indicated with the teacher assessments. We talked about that with the supports in place that we were confident that he would continue to make progress in the areas.” When asked, “Was there any discussion about enabling him to make progress to close the gap between his current performance and his peers current performance?,” School Psychologist responded, “We did say and we talked about it takes time, it takes time to close the gap. We were putting in academic supports and we were seeing progress. We talked about this was not a process that would happen overnight and that the goal is that the gap will get smaller.” (T. 80; 89-90)

School Psychologist testified that, at the beginning of the 2020-2021 school year, when starting 1st grade, STUDENT was reading at a level B and, that on the instrument used, Fountas & Pinnell, the grade equivalency for that level is the second of the four kindergarten levels. As of April 2021, STUDENT was at a level D, the grade equivalency of the end of kindergarten. (Parent Exhibit I; T. 92-93) School Psychologist confirmed that among the goals in the IEP for the 2021-2022 school year, dated April 22, 2021, was that STUDENT would reach Level F by the end of the year. The grade equivalency would be the second of the six 1st grade levels. She stated that moving two levels, from the end of kindergarten to the second of the six 1st grade levels, would be making progress. (T. 95-97) School Psychologist was asked, “So do you recall Neuropsychologist saying at the April 22nd meeting that, after months of the support that STUDENT had been given, he had not made as much progress as he should have?” Her response was, “I vaguely recall something to that effect, and I remember us discussing that we are in a pandemic, and we were happy that STUDENT was even making progress, and I remember the special education teacher talking about what he was observing remotely and the great things that STUDENT was doing. I remember that context of the conversation.”

(T. 98)

THE PARENT’S CASE The Parent presented the testimony of three witnesses: REDACTED, Mother; REDACTED, School Psychologist, the Private School (“Private School Psychologist”); and REDACTED, Pediatric Neuropsychologist (“Neuropsychologist”). The direct testimony of the witnesses was presented through sworn affidavits. The witnesses appeared for the hearing for the DOE's cross-examination.

Private School Psychologist is a School Psychologist at the Private School. She provided her direct testimony through a sworn affidavit, which is fully considered part of this decision although not included in its entirety. (Parent Exhibit N; T. 122) She described the Private School as “a K-12 college preparatory program accredited by the New York State Association of Independent Schools (NYSAIS) and National Association of Independent Schools (NAIS) which serves students with learning disabilities.” She stated that, “the Private School’s specialized teaching methodologies and challenging curricula are individualized to meet the needs of each student.” “There are 418 students in the entire school. There are 127 students in the elementary school. The majority of the students at the school have IEP’s.” As for the credentials of the faculty, “All Head Teachers have at least a master’s degree in either education or a related field. There are assistant teachers in the classroom; they hold degrees ranging from bachelors in an area of study or in education to a master’s degree or beyond.” “REDACTED, STUDENT’s head teacher has a Masters in Early Childhood and Special Education from Pace University. He is also certified in New York State to teach Early Childhood and Special Education. REDACTED, STUDENT’s assistant teacher, has a BA degree in Organizational Studies from the University of Michigan.”

There are three speech and language therapists and three occupational therapists on staff. Private School Psychologist described faculty training, professional development, faculty meetings and collaboration, and faculty supervision.

Private School Psychologist stated that classrooms typically have nine to twelve students and STUDENT’s class had nine students with two teachers. (T. 130) She explained that STUDENT had a reading group of four students and a math group of four students. The groups are “based on academic ability and skill, and what needs to be worked on, and so they’re really fine tuned to work on the needed skills.” (T. 133-134) STUDENT receives writing instruction in a group of three. Private School Psychologist provided details on the programs used in the reading, math, and writing groups. Private School Psychologist described how teachers modify their instruction to meet STUDENT’s individual needs and utilize various special education strategies. STUDENT receives speech and language therapy and occupational therapy.

Private School Psychologist testified that she knows STUDENT well, as she is the counselor working with STUDENT’s class and has been in STUDENT’s classes many times. She also had lunches and snack groups with STUDENT at the beginning of the school year, as she does for new students to support them through the transition to a new school. In addition, she has taught some lessons in STUDENT’s class. (T. 122-127) She described STUDENT’s diagnoses of a “Language Disorder and a Specific Learning Disability in reading, commonly known as dyslexia.” She stated that STUDENT “is a bright, kind, and friendly, engaging, gender fluid student whose learning and functioning in school is impacted by significant executive functioning issues, working memory as well as expressive language and word retrieval difficulties. Delays in all academic areas are present, as well. STUDENT has made progress in all of these areas this school year.” She testified that specifics of STUDENT’s program and progress are contained in their Mid-Year Report. (Parent Exhibit H)

Private School Psychologist testified that STUDENT “has made progress in all areas with the support of the small class size, smaller groupings in academic areas, appropriate curricula, tools, strategies, modifications, and educators. The small class size with two teachers allows for STUDENT to receive the attention they need in order to make progress.” She stated her professional opinion that STUDENT “has been appropriately placed at the Private School for the 2021-2022 school year and that the Private School has enabled STUDENT to make meaningful educational gains – academically, socially, and emotionally in the 2021-2022 school year.”

Neuropsychologist conducted a neuropsychological evaluation for STUDENT in 2019 and has done two targeted updated evaluations since then. As a result of the 2019 evaluation, conducted while STUDENT was in kindergarten, Neuropsychologist diagnosed them with “[A] language disorder and specific learning disorder with impairment in reading, which we commonly know to be dyslexia.” Neuropsychologist provided a detailed explanation of STUDENT’s disorder and impairment. (DOE Exhibit 12; T. 138-143) Neuropsychologist described STUDENT’s needs in terms of the supports they required. Neuropsychologist testified that, “We were at a lucky point at that time in which we identified dyslexia in kindergarten, and so there are really great supports and interventions that are available.” Neuropsychologist explained the Orton-Gillingham approach to reading and why she recommended it for STUDENT. She also described STUDENT’s various areas of weakness. Neuropsychologist explained that, “[W]e weren't really able to assess some of those higher-level reading abilities because the foundational skills were not there. As STUDENT got older and we did the targeted evaluations, that's when, because also the expectations increase, we're able to at least kind of assess the orthography, fluency. And at that point, again, even when we were trying to assess fluency, I believe he was below the 1st percentile, because they still haven't really developed even kind of letter naming, letter sound, and phonics and phonemic awareness.” (T. 145-150)

Neuropsychologist conducted a “targeted reevaluation” of STUDENT and her findings were contained in a report dated December 15, 2020. She explained that, “I was targeting language, pre-literacy skills, reading abilities, math abilities, and writing abilities. And it's targeted because I didn't do a full neuropsych evaluation. I was assessing progress or lack thereof, of the abilities that were at risk or weak in the prior evaluation.” The reevaluation revealed, “nominal progress in terms of reading abilities and writing abilities and that he would -- that STUDENT was falling further and further behind their peers.” STUDENT’s percentile a year prior, in terms of letter and word recognition, relative to their peers, had been 25% and in the reevaluation, it was down to 13%, which shows that STUDENT did not progress along with their peers. In addition to the concern with falling percentiles, Neuropsychologist explained the associated risk for STUDENT: “[T]hat they would fall further behind their peers because, as you know, in time, you know, the -- the demands increase, peers increase, you know, improve their abilities, and then that gap widens. And as a student gets older, the ability to close that gap gets harder and harder. So, when a student is behind in reading in 1st grade, it's -- it really is a predictor of difficulties in 3rd grade. And once a student is struggling to read in 3rd grade, then it really is a predictor of someone’s difficulties reading through high school. And — and that is extremely detrimental, which -- which is why I emphasize the importance of having a strong reading instruction right away and right when we identify those difficulties.” (DOE Exhibit 5; T. 152-155)

In April 2021, Neuropsychologist attended the CSE meeting with the Parent and discussed her reevaluation. She expressed “grave concerns about the minimal progress that was concluded from the updated evaluation, and I emphasized the importance of delivering strong reading instruction based on the principles of Orton-Gillingham, and that I had not noticed some of the progress, or at least the progress that was presented at that meeting was not generalized to the assessment setting, and you know, or kind of amongst others that were observing STUDENT’s reading and that generalization is, you know, if someone could do it in the moment after repeating it several times, that’s great. However, reading is all about generalizing those skills, and so STUDENT was still not able to do that.” Neuropsychologist was aware of the educational setting STUDENT was in at the time, in the ICT class, and she expressed her opinion to the CSE that it was not supportive enough and she did not hear about individualized instruction for STUDENT During the meeting, Neuropsychologist explained the risk to STUDENT She said she had “used strong language that I don’t use unless warranted. And I was pretty blunt and said that it was a wait-to-fail model.” Their response was that what they were going was working. (T. 155-159)

In August of 2021, Neuropsychologist conducted another reevaluation. She described it as “heartbreaking.” She specifically addressed those areas in which the school said STUDENT had made progress. She found that STUDENT’s letter and word identification abilities relative to same-age peers went from the 13th percentile down to the 4th percentile. She described other results, including that, “So when I looked at STUDENT’s ability to read out loud connected text, it was consistently below the 1st percentile, and actually it hit the floor in that, you know, they weren't really able to do any of those skills.” Neuropsychologist shared her report with the Parent in a feedback session and recommended that, “[W]e need more intensive instruction and that I had significant concerns about, you know, the rate of progress and that if we keep doing what we've done, we're going to get the same result.” (Parent Exhibit C; T. 159-162)

REDACTED is STUDENT’s mother (“Mother”). She described STUDENT’s special education history, which began with them receiving speech and language therapy through the Committee on Preschool Education (“CPSE”) while in a preschool program. When STUDENT went into pre-kindergarten, they were not retaining the alphabet the way their peers were or the way the Parent’s older daughter had. In a meeting with STUDENT’s pre-kindergarten teacher, during the 2018-2019 school year, the teacher expressed concerns and recommended the parent have a reevaluation with the CPSE and request Special Education Itinerant Teacher (“SEIT”) services. STUDENT was assigned a SEIT who worked with him daily and focused on letters. By the end of the year, the SEIT reported very little progression and her observation that there was an issue with retention. She suggested a private evaluation to look for a learning disability. As a result of STUDENT’s “turning five” process, the recommendation was for an ICT class and speech and language therapy for STUDENT’s kindergarten year, the 2019-2020 school year. Mother stated that, at the time they felt very supported and hopeful. (T. 169-173)

Upon receiving Neuropsychologist’s neuropsychological evaluation report in December 2019, with the formal diagnosis of dyslexia and Neuropsychologist’s concerns and observations, the Parent shared it with STUDENT’s school. As a result of another IEP meeting, SETSS was added to STUDENT’s program and the Parent was satisfied. The program continued for the remainder of the kindergarten year and into the 2020-2021 school year, for 1st grade. That school year looked different, with remote instruction, although it seemed STUDENT was getting support, especially from Special Education Teacher, without the typical classroom distractions. However, the Parent was not seeing progress. Special Education Teacher had told the Parent that STUDENT was an independent level B reader, however, when the Parent bought those books to read with STUDENT, STUDENT could not read the basic words, such as “the, and, and up.” This set off “alarm bells” for the parent, since level B was far behind where STUDENT should be and they could not even read a level B book at home. This prompted the Parent to have the second evaluation with Neuropsychologist in December 2020. (T. 174-177)

The CSE had said that Neuropsychologist’s December 15, 2020, report could not be addressed at the February 8, 2021, meeting and that a different type of meeting was required for that purpose. The Parent expressed that STUDENT still did not consistently know the letters but felt that there was no acknowledgement of the problems and that the degree of progress was not being considered as long as STUDENT had made a “tiny bit of progress.” The CSE recommended the same program of the ICT class, SETSS and speech and language therapy. (T. 174-179) On April 22, 2021, the CSE met to consider Neuropsychologist’s December 15, 2020, report and School Psychologist and Neuropsychologist participated. Mother described it as a particularly “painful” meeting because “[S]ome of the main takeaways that we had from that December evaluation, you know, and she just spoke to, it was that -- it was that STUDENT still wasn't progressing at a rate that would, you know, narrow the gap between STUDENT and their peers. You know, which was then concerning, you know, and was still very low in many percentiles and still didn’t know the letters and -- and kind of all the rest.” Mother testified that they felt the information was dismissed. Mother referred to School Psychologist’s testimony during the hearing that it takes time to narrow the gap, which the Parent did not understand, since “the gap wasn’t narrowing at all” and they were not putting in any additional interventions. Any progress there may have been was not at a rate that was bringing STUDENT any closer to their peers. Mother also referred to School Psychologist’s testimony that if STUDENT were “plateauing,” there would be a change in services. Mother realized this is what Neuropsychologist referred to as a “waiting-to-fail” model. Mother believed there was no acknowledgment that STUDENT was so far behind and “we just kind of felt like we kind of hit a brick wall.” (T. 178-181)

Mother testified that they started to look at private school options, based on Neuropsychologist’s recommendations, for the kind of educational setting STUDENT needs. Mother said, “we absolutely did not want to take him out of the public school. We were very connected to the school. As I mentioned, our daughter was there, a block and a half away from our house. You know, I mean, even just the concept of logistics, of getting to private school, you know, were — were overwhelming. You know, we were committed to being -- it felt like a real loss, you know, and STUDENT was -- had friends at the school. You know, it's a close-knit community. And that's really where we had envisioned STUDENT continuing elementary school. And you know, so it wasn't something we did lightly, but we -- we really just didn't know what else to do.” (T. 182-183) Since this was a very difficult decision for the Parent to make, they sought another, updated evaluation from Neuropsychologist. Faced with the results of that evaluation, dated August 3, 2021, the Parent reached a decision. (Parent Exhibit C; T. 186-187)

Mother described the types of progress observed after STUDENT’s year at the Private School for the 2021-2022 school year. (T. 187-190)

Mother could not recall the exact cost of the three evaluations conducted by Neuropsychologist, but stated it was “at least $1,000 each time.” (T. 191)

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The DOE has the burden of establishing that it offered a FAPE to STUDENT (R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-185 [2d Cir. 2012]; Educ. Law § 4404[1][c]). A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 [2d Cir. 2014]; R.E., 694 F.3d at 189-190; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998], quoting Rowley, 458 U.S. at 206; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]). The Supreme Court has indicated that "[t]he IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement" (Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. __, 137 S. Ct. 988, 999 [2017]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]). 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 (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245).

A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). "The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created" (Endrew F., 137 S. Ct. at 1001). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations 5 omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and... affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Endrew F., 137 S. Ct. at 1001 [holding that the IDEA "requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances"]; Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132).

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]).

The DOE maintains that it offered a FAPE to STUDENT for the 2021-2022 school year. In its closing argument, the DOE stated that it met the requirement to have an IEP in place at the beginning of the school year. The DOE recognized its obligation to “[D]evelop an IEP that is reasonably calculated to enable the child to obtain a meaningful educational benefit.” In referring to the IEP developed for STUDENT, the DOE argued that it “was appropriate for the student and would have provided an educational benefit.” (T. 200-201) Presumably, the DOE did not intentionally and repeatedly exclude “meaningful” in describing the educational benefit that the IEP would have provided to STUDENT However, the exclusion of the level of educational benefit that is required, does exactly reflect the failure of the DOE’s position. Even if educational benefit could have been identified, without the measure of “meaningful” attached to it the IEP fails. That would equate to “mere trivial advancement,” not meaningful educational progress. The record reflects that the CSE, in developing the 2021-2022 IEP, was content with any minimal progress that could be noted, even if it had to strain to find it. The CSE ignored the true data on progress, which was actually a lack of progress, and the growing gap between STUDENT and their peers. The DOE claims that the only issue was that “the student wasn’t progressing at the rate the parent would have liked to have seen.” The rate at which STUDENT was progressing, should have been one the DOE was equally dissatisfied with, had the data been appropriately considered.

The DOE asserted that, “All necessary evaluative material was reviewed and considered by the IEP team that developed the student's present levels of performance, as well as the recommendations and accommodations necessary for the student.” If this statement is true, it follows that Neuropsychologist’s evaluation reports were reviewed and considered. Therefore, the fair conclusion that can be made is that after the evaluative results, findings, and recommendations contained in those reports were reviewed and considered, they were then rejected and dismissed. Even if they were not completely ignored, which it seems they were, they were considered and rejected. It is extremely difficult to understand, and quite disturbing, that the CSE could have actually reviewed and considered this particular evaluative material and believed, that based on the “progress” they continually referred to, no changes were necessary. The DOE also argued that, “This IEP would have provided for more than trivial advancement, given the needs of student,” which is required. The DOE’s own witnesses only ever described progress that was exactly that: trivial. The trivial progress is what they were satisfied with and what they deemed sufficient to go forward with no changes. With regard to Neuropsychologist reporting to the CSE on April 22, 2021, that STUDENT had not made the progress they should have given the support provided, School Psychologist testified” “I vaguely recall something to that effect, and I remember us discussing that we are in a pandemic, and we were happy that STUDENT was even making progress.” This shows that School Psychologist was not disputing that STUDENT “had not made as much progress as they should have,” but that she and others were “happy that STUDENT was even making progress.” This statement highlights the DOE’s deficiencies. The DOE’s witnesses offered no real basis on which to reject the recommendations of Neuropsychologist and the requests of the Parent. During Special Education Teacher’s testimony, he indicated that it was School Psychologist’s decision to continue the same program recommendation into 2021-2022 school year. During School Psychologist’s testimony, she said that to be “even making progress” was such an accomplishment and something to be “happy” about. She referred to the circumstances of the pandemic and while she was “happy,” based on her own lowered standard, it does not change the legal obligations under which the DOE must operate.

The DOE failed to provide a FAPE to STUDENT for the 2021-2022 school year and, therefore, the first prong of the analysis, under the Burlington and Carter decisions, supports the Parent’s case.

The Parent has the burden of establishing the appropriateness of the program they have provided to STUDENT. (Application of a Child with a Disability, Appeal No. 95-57; Application of a Child with a Disability, Appeal No. 02-093) In order to meet that burden, they must demonstrate that the services provided offer an educational program which meets the student’s special education needs. (Burlington, 471 U.S. at 370; Application of a Child with a Disability, Appeal No. 94-29; Frank G. v. Board of Education of Hyde Park, 459 F. 3d at 363; Gagliardo v. Arlington Cent. Sch. Dist., 489 F. 3d 105 [2d Cir. 2007]) The standard used to measure the appropriateness of the parent’s placement is “not perfection.” (M.S. ex rel S.S. v. Bd. of Ed., 231 F.3d 96 [2d Cir. 2000]) “The issue turns on whether a placement - public or private- is reasonably calculated to enable the child to receive educational benefits.” (Gagliardo, 489 F. 3d at 112) A parent’s failure to select a program approved by the state in favor of an unapproved option is not itself a bar to reimbursement. (Carter, 510 U.S. 7 [1993])

The DOE challenged the appropriateness of STUDENT’s placement at the Private School by arguing that: STUDENT’s classroom ratio was “not necessarily determined by the student's needs;” was “excessively restrictive,” given STUDENT’s need for social interaction; the Private School “failed to provide the related services necessary,” since fewer sessions of speech and language therapy were provided than were recommended in the IEP, and because occupational therapy was provided but not needed. (T. 204) There has been no evidence or testimony presented to rebut any aspect of the Parent's case for the placement at the Private School for the 2021-2022 school year. The DOE’s challenges were not supported by the record and are dismissed.

Those who are familiar with STUDENT, including Private School Psychologist and Mother strongly agree that the Private School was appropriate for STUDENT for the 2021-2022 school year. The specifics of the program offered to STUDENT at the Private School satisfy the recommendations made by Neuropsychologist, based on her evaluations, about which she testified in detail. The testimony of the Parent’s witnesses and the supporting documentary evidence was highly persuasive. The testimony provided by the witnesses affirms the appropriateness of the placement and demonstrates that the Private School addressed STUDENT’s individual needs and was reasonably calculated to allow STUDENT to make meaningful progress. In fact, STUDENT made meaningful progress through their attendance at the Private School in the 2021-2022 school year. I find that the Parent has prevailed with respect to the second criterion for reimbursement under the Burlington and Carter decisions.

The final criterion for an award of funding or reimbursement is whether the Parent’s claim is supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M. C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required"]). Such considerations "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters" (Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff'd, 471 U.S. 359 [1985]). An award may be impacted by a parent’s failure to cooperate with the CSE in the development of an IEP or if the parent's conduct precluded the CSE's ability to develop an appropriate IEP (Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80, 86 [3rd Cir. 1999]; see Application of the Bd. of Educ., Appeal No. 04-102; Application of the Bd. of Educ., Appeal No. 04-026).  In the absence of evidence demonstrating that a parent failed to cooperate in the development of the IEP, or otherwise engaged in conduct that precluded the development of an appropriate IEP, or failed to give proper notice, equitable considerations generally support an award in favor of the parent. (Application of a Child with a Disability, Appeal No. 04-049). The DOE did not offer any equitable consideration that would preclude an order in favor of the Parent. The record clearly established the Parent’s continuous communication and cooperation with the DOE. There is absolutely no basis on which to reduce or modify the remedy for the Parent.

The Parent’s DPC alleged the following with regard to an Independent Educational Evaluation (“IEE”):

27. The CSE failed to provide STUDENT’s parents with a copy of the Procedural Safeguards Notice as per IDEA § 1415(d). a. PS REDACTED failed to inform the parents of their right at an independent educational evaluation at public expense. b. PS REDACTED had advised the parents that STUDENT should be evaluated. c. PS REDACTED failed to conduct assessments to identify specific learning disabilities as per 20 USC § 1414(b)(6)(A),(B), 34 CFR § 300.307, 8 NYCRR § 200.4(b)(6)(xiv) and 8 NYCRR § 200.4(j).

28. Upon the advice of PS REDACTED, STUDENT was evaluated by Neuropsychologist for suspected disabilities and present levels of performance at the parents’ expense.:

a. November 2019, Kindergarten, report submitted to school. b. December-January 2021, 1st grade, submitted to school Feb. 1, 2021. c. August 2021, rising to 2nd grade, submitted to school & CSE August 23, 2021.

The opening statement for the Parent, contained, in part, the following: “At their own expense they invested in three different evaluations to track the progress of their child in reading through the 1st grade, and in anticipation of being able to assist the District in designing a program that would meet their child's needs going into the 2nd grade.” (T. 23) The Parent’s closing argument referred to the relief being sought as: reimbursement for tuition “and of the expenses of the evaluation which has been which was requested in the IEP; the supporting documents haven't been provided, but the request for reimbursement for evaluation costs has been included in the hearing request, rather.” (T. 199)

The IDEA and State and federal regulations guarantee parents the right to obtain an IEE (see 20 U.S.C. § 1415[b][1]; 34 CFR 300.502; 8 NYCRR 200.5[g]), which is defined by State regulation as "an individual evaluation of a student with a disability or a student thought to have a disability, conducted by a qualified examiner who is not employed by the public agency responsible for the education of the student" (8 NYCRR 200.1[z]; see 34 CFR 300.502[a][3][i]). Parents have the right to have an IEE conducted at public expense if the parent expresses disagreement with an evaluation conducted by the district and requests that an IEE be conducted at public expense (34 CFR 300.502[b]; 8 NYCRR 200.5[g][1]; see K.B. v Pearl Riv. Union Free Sch. Dist., 2012 WL 234392, at *5 [S.D.N.Y. Jan. 13, 2012] [noting that "a prerequisite for an IEE is a disagreement with a specific evaluation conducted by the district"]; R.L. v. Plainville Bd. of 32 Educ., 363 F. Supp. 2d. 222, 234-35 [D. Conn. 2005] [finding parental failure to disagree with an evaluation obtained by a public agency defeated a parent's claim for an IEE at public expense]).

If a parent requests an IEE at public expense, the school district must, without unnecessary delay, either (1) ensure that an IEE is provided at public expense; or (2) initiate an impartial hearing to establish that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria (34 CFR 300.502[b][2][i]-[ii]; 8 NYCRR 200.5[g][1][iv). If a school district's evaluation is determined to be appropriate by an IHO, the parent may still obtain an IEE, although not at public expense (34 CFR 300.502[b][3]; 8 NYCRR 200.5[g][1][v]). Additionally, both federal and State regulations provide that "[a] parent is entitled to only one [IEE] at public expense each time the public agency conducts an evaluation with which the parent disagrees" (34 CFR 300.502[b][5]; 8 NYCRR 200.5[g][1]). The Second Circuit Court of Appeals has recently found that, if a district and a parent agree that a student should be evaluated before the required triennial evaluation "the parent must disagree with any given evaluation before the child's next regularly scheduled evaluation occurs" or "[o]therwise, the parent's disagreement will be rendered irrelevant by the subsequent evaluation" (D.S. v. Trumbull Bd. of Educ., 975 F.3d 152, 170 [2d Cir. 2020]). Initially, in past decisions, SROs have held that a parent may request a district funded IEE in a due process complaint notice in the first instance (see Application of a Student with a Disability, Appeal No. 19-094). However, this is not exactly the process contemplated by the IDEA and its implementing regulations (34 CFR 300.502[b]; 8 NYCRR 200.5[g][1]), and, in most instances it is likely that a parent would be in a better position to elicit an agreement from the district to fund an IEE if the IEE was requested outside of the more formal context of an impartial hearing.

The Parent included the request for reimbursement of the IEE in the DPC. The record does not establish that the Parent had previously requested an IEE, as the procedure above describes. The record also shows that the request in the DPC is not even a belated request for an IEE; it is a request for reimbursement after the IEE was obtained and funded by the Parent, without having first been requested. It appears that the DPC explains the reason the request for funding of the IEE was handled this way: “PS REDACTED failed to inform the parents of their right at an independent educational evaluation at public expense” and “PS REDACTED had advised the parents that STUDENT should be evaluated.” The Parent alleged that, “The CSE failed to provide STUDENT’s parents with a copy of the Procedural Safeguards Notice as per IDEA § 1415(d).” There is nothing in the record to support this claim. The Parent testified that, in the summer of 2019, at the end of STUDENT’s pre-kindergarten year, STUDENT’s SEIT suggested that the Parent seek an IEE. The neuropsychological evaluation was conducted in November 2019. The manner in which the request for the IEE at public expense was made, in the DPC and after-the-fact, could have been explained, although not necessarily excused, if the receipt of the Procedural Safeguards Notice was a substantiated matter. There was no reference during the hearing, in argument, testimony, or otherwise, by the Parent regarding the Procedural Safeguards Notice or even generally related to what the Parent knew or did not know in this regard. The Parent’s request for reimbursement of the initial neuropsychological evaluation and subsequent updated evaluations, based on allegations made in the DPC alone, is denied. The Parents DPC also included requests for payment for the cost of related services, and for compensatory education for SETSS and related services. There was nothing in the record addressing these requests and they are, therefore, denied.

ORDER

1. The DOE failed to offer a FAPE to STUDENT for the 2021-2022 school year;

2. The Parent’s unilateral placement of STUDENT at the Private School was appropriate for the 2021-2022 school year;

3. There are no equitable considerations which would reduce or bar an award of reimbursement; and, therefore,

4. The DOE shall immediately reimburse the Parent for the tuition paid to the Private School for STUDENT for the 2021-2022 school year in the amount of $73,174. Proof of payment has already been established. (see Parent Exhibit D).

5. Parent’s requests for reimbursement for an IEE and other relief are denied.

SO ORDERED.

DATED: April 4, 2023 Amy Lynne Itzla, Esq.

Amy Lynne Itzla Esq.

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 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.

THIS PAGE IS NOT SUBMITTED TO THE NYSED.

APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD

DOE EXHIBITS

Number Description Date Pages

1   Individualized Education Program (IEP) 4/22/2021 23 2   Meeting Notice 6/1/2021 3 3   Oral Reading Scores 4/16/2021 5 4   Word Identification Assessment 4/5/2021 4 5   Neuropsychological Evaluation 12/15/2020 7 6   Adaptations for Remote Learning 2/24/2021 4 7   Consent to Tele-therapy 9/21/2020 7 8   Adaptations for Remote Learning 9/24/2020 6 9   Prior Written Notice 6/4/2021 4 10   Affidavit of School Psychologist 5/19/2022 5 11   Affidavit of Special Education Teacher Undated 4 12   Neuropsychological Evaluation 11/2019 17

PARENT EXHIBITS

Letter Description Date Pages

A Hearing Request 11/8/21 8

B Parent Letter to CSE 8/24/21 3

C Educational Re-evaluation 8/3/21 6

D School contract, payment affidavit, 1/12/22 13 parent proofs of payment

E School Program Description 21-22 2

F Student Class Schedule 21-22 1

G Attendance Report 5/4/21 1

H Student Mid-year Progress Report 1/31/22 19

I Fountas and Pinnell Instructional 5/20/22 2 Grade Level Chart

J Student’s First Grade IEP 2020-2021 6/17/20 20

K Student’s First Semester Progress Notes 10/8/21 4

L Parent Letter to PS REDACTED with POD 5/21/21 3

M Parent Letter to PS REDACTED with POD 8/23/21 8

N Affidavit of Private School Psychologist, 6/2/22 13 the Private School

Footnotes

[1] Personally identifiable information is attached to this decision as Appendix A, “Redaction Identification Page,” and must be removed prior to public distribution.

[2] A more detailed list of the admitted exhibits is attached to this decision as Appendix B, “Documentation Entered Into the Record.”

[3] REDACTED