New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 567373 - NYC: 222535

FINDINGS OF FACT AND DECISION

Case Number: 222535

Student's Name: REDACTED

School District: REDACTED

Scho Hearing Requested By: Parents

Dates of Hearing: March 22, 2022

March 31, 2022

April 1, 2022

May 17, 2022

Record Closed Date: June 21, 2022

Hearing Officer: Dora M. Lassinger The student’s parents requested an impartial hearing on December 7, 2021, alleging a denial of a free appropriate public education (“FAPE”) during the 2021-2022 school year, and seeking funding for the cost of tuition at REDACTED (hereinafter “the private school”) as well as special transportation and reimbursement the cost of a neuropsychological evaluation and the cost of any privately provided transportation. (Par. Ex. A).^[1] I was designated to hear this matter on January 31, 2022.

A pre-hearing telephone conference was held on February 11, 2022, and a hearing on the merits commenced on March 22, 2022 and concluded on May 17, 2022. The compliance date was extended to June 30, 2022 (IHO Ex. I).

• • Department of Education (“DOE”) Position
• • The DOE’s position is that it provided the student with a FAPE for the 2021/2022 school year, and therefore, tuition reimbursement for the private school should be denied. The DOE also argues that the parent did not raise concerns regarding related services recommendations in their due process complaint (“DPC”), or their ten day notice; but instead focused on the DOE’s failure to provide ABA instruction and BCBA supervision; and that these issues cannot now be raised. (IHO Ex. II; Tr. p. 17).
• • Parent’s Position
• • The parents maintain that the DOE failed to meet its burden of proof, that the parental placement was appropriate and that equitable considerations support the parent’s request for funding, transportation and reimbursement for the cost of an independent neuropsychological evaluation. (Tr. pp. 19-22). In their closing statement, the parents argued that the DOE’s failure to conduct timely evaluations resulted in a deprivation of educational benefits. (IHO Ex. I).
• • Evidence at Hearing
• • The student was evaluated through early intervention,.and diagnosed with autism. He began receiving Speech/Language Therapy (“SLT”), Physical Therapy (“”PT”) and Occupational Therapy (“OT”). He attended a DOE preschool and received related services. He then attended a local DOE school in a 12:1:1 classroom for kindergarten and first grade; however his mother felt it was not a good fit and that the teachers were not knowledgeable about autism. He began attending the private school in the second grade. (Par. Ex. R).
• • A neurodevelopmental evaluation was conducted in June 2017. The student’s Full Scale IQ was 60 (less than first percentile); with a non-verbal IQ of 69 (2nd percentile) and a Verbal IQ of 54 (less than 1st percentile). The student was diagnosed with Autism Spectrum Disorder, Level 1 (“ASD”) with deficits in expressive, receptive and pragmatic language, as well as articulation problems. He also had asthma. It was also noted that he had decreased attention, an increased activity level, impulsivity and a sensory integration disorder. It was recommended that the student be enrolled in a full day special education program with 1:1 academic instruction, utilizing Applied Behavioral Analysis (“ABA”) therapy, in addition to at home ABA for 15 hours per week; with the home and school ABA programs supervised by a Board Certified Behavior Analyst (“BCBA”). It was further recommended that he receive SLT five times per week for 30 minute sessions at school, individually,and three times per week for 45 minute sessions after school. (DOE Ex. 7).
• • An auditory processing evaluation was conducted on July 22, 2017. At the time, the student was participating in a self-contained classroom in a community school. The student was identified with an auditory processing disorder (“APD”) secondary to a global impairment of ASD. Various accommodation and modifications were recommended for his classroom, including visual supports and repetition. It was recommended that he be placed in a small sized class and low student to teacher ratio, that he receive an FM system, and that SLT be increased to five times per week (three individually, and twice in a group of two). Various forms of Assistive Technology (“AT”) were recommended. (DOE Ex. 8).
• • An IEP meeting was held on January 12, 2021 and the student was classified with autism The CSE recommended placement in a special class in a specialized school, with a staffing ratio of 6:1+1 class with twelve month programming and related services of Counseling, once per week in a group, SLT five times per week for thirty minute sessions, in a group, individual parent counseling, once per month for 60 minute sessions, adaptive physical education, three times per week and 12 month programming. (DOE Ex. 3). The IEP provides for special transportation, via minibus, closest safe curb location to school. It does not provide for limited time or air conditioning. (DOE Ex. 3 at 24).
• • The school psychologist who conducted the January 12, 2021 IEP meeting testified that she is certified as a school psychologist and holds a doctoral degree in clinical school psychology. (Tr. pp. 54-57). She testified that the IEP team reviewed the 2017 neuropsychological evaluation, which indicated that the student’s Full Scale intellectual score was 60, within the extremely low range. His verbal and nonverbal skills were within the extremely low range. The team also reviewed a teacher report indicating that the student had difficulty with language, that his reading abilities were low, his writing skills were at a first grade level, and his math skills were at a third grade level. (Tr. p. 58). The team also noted that the student required counseling to develop his ability to express emotions and enhance his social skills. (Tr pp. 58-59).
• • The IEP noted that the student had started OT this past year, once per week for ALD’s (sic), counting money, cutting, laundry and cleaning up. The OT provider reported that the specific areas of therapeutic focus had included self-regulation, visual-perceptual skills and fine motor coordination. It was reported that he shows age-appropriate fine motor and graphomotor skills and utilizes a proper grasp for handwriting. It was reported that he is independent in his self-help skills; but that he requires maximal assistance to give the correct money to a cashier to make a purchase, It was recommended that he continue to receive OT services as a means to continue current progress and develop OT skills at a more age appropriate level, as deficits persist in his sensory system and executive functioning which affect his ability to participate in community skills. (DOE Ex. 3 at 6). Nevertheless, OT was not included in the January 12, 2021 IEP.
• • The IEP noted a variety of management needs, including a small, structured, classroom, a multisensory environment, movement breaks and positive reinforcement, repetition of instruction and directions, preparation for transitions, modified assignments, refocusing prompts and redirection. (DOE Ex. 3-10).
• • The school psychologist testified that the student’s needs could be met in the recommended program, which would be highly individualized, provided in a specialized school, in a very small structured program, with the accommodations the student requires. (Tr. p. 64).
• • She testified that at the meeting, the parent reported that the student was making progress in his private school setting, and that she wanted him to remain there. The representative from the private school provided information regarding the student’s academic abilities, and his social skills, which is reflected in the IEP. (Tr. pp. 65-67). She does not recall anyone raising issues regarding ABA. (Tr. pp. 67-69).
• • The parent stated she did not agree with the program recommendation, because she wanted him to remain in his current placement, where he was making progress. (Tr. pp. 69-70).
• • At the hearing, the DOE objected to questioning of the witness regarding an updated evaluation, as being outside the scope of the complaint; however I allowed testimony regarding the evaluation process. (Tr. pp. 74-79). The school psychologist testified that the team indicated that an updated evaluation would be warranted. She testified that the team reviewed a quarterly progress report, and an OT progress report., as well as the teacher’s verbal input; which was felt to be sufficient for the team to recommend an appropriate program. (Tr p. 80, 84).^[2] The recommended program did not include an ABA classroom, home-based ABA programming or BCBA supervision, which were recommended in the 2017 neurodevelopmental evaluation. (DOE Ex. 7 at 9; Tr. p. 86).
• • She testified that parent felt there should be updated testing, and was provided with contact information for the CSE chairperson, to request it. Nevertheless, she testified that the parent had no concerns with the evaluation upon which the team relied, and she stated it was accurate; and the team felt it was consistent with his current performance. She noted that the evaluation noted the student’s strength in visual and fine motor skills and quantitative reasoning, which was consistent with his academic performance. (Tr. pp. 89-90, 92).

The parent testified that the CSE did not review any evaluations or documents during the January 12, 2021 IEP meeting. (Par. Ex. Z). She testified that the IEP team discussed the student’s needs, his need for a 12 month program, the size of his classroom, and the services he was entitled to. (Tr. pp. 186-187). They discussed his weaknesses in speech and communication, his rigidity, and his slow learning compared with other students. They also discussed his APD. (Tr. p. 187). At the meeting, she discussed her concerns for her son, including his asthma. She informed the team that he is checked regularly by a pulmonologist. (Tr. p. 188). His teacher described how the student is a good helper in the classroom. She spoke about his reading level, and his progress in speech, math, and socialization. She also spoke about his receipt of OT, to learn daily life skills. (Tr. pp. 189-190). There was a discussion about use of a keyboard and the student’s need to learn how to type with ten fingers. (Tr. p.190). The parent acknowledged that the student benefits from preparation for transitions, repetition of instructions, redirection and refocusing. (Tr. pp. 193-194).

The parent described the student’s difficulty when attending a public school, and being told that the teacher could not help him. (Tr. p. 189). She testified that he was very active, and the teacher complained that he was jumping around the classroom. (Tr. p. 194). She testified that when he came to the private school, his behavior improved dramatically through the use of ABA strategies, which she also used at home. (Tr. pp. 194-195).

• • She testified that the recommended program was not appropriate, because it did not include OT; and that private school representative stated he required one-to-one support and ABA supervision. (Par. Ex. Z1). She testified that she believed the meeting concerned the 2020-2021 school year. She stated that the student required door-to-door transportation with a minibus, with limited travel time and air conditioning, due to his asthma. (Par. Ex. Z1). She testified that, at present, the student is picked up at 7:30, by a minibus and arrives at school at 9:00 AM, which is satisfactory. (Tr. pp. 205-206). In the past, he was picked up as early as 7:00 AM in a large bus. His commute time has been satisfactory, since he was switched to a minibus. (Tr. p. 207). She is not sure if the minibus has air conditioning. She testified that he needs air conditioning, because he will have a hard time breathing is it is too hot. (Tr. p. 209). The parent presented a statement from the student’s pediatrician that the student requires a smaller bus to decrease agitation, with limited travel time (amount of time not indicated). (Par. Ex. BB).
• • She testified that the student required OT to learn life skills, but the CSE did not agree, or request an OT evaluation. (Tr. pp. 202-203).
• • Following the IEP meeting, on February 16, 2021, the parent wrote to the CSE Chairperson stating that the 2017 evaluations were outdated and requesting funding for an independent neuropsychological evaluation. (Par. Ex. L).
• • On February 23, 2021, the CSE sent the parent a letter offering to implement the IEP at REDACTED. (Par. Ex. M). The parent contacted the school and was informed that it did not offer ABA methodology; that there was only one BCBA on site for the school; and that the student would be instructed in groups. (Par. Ex. Z2).
• • On March 29, 2021, the parent wrote to the Chairperson stating that she disagreed with the January 2021 IEP recommendation because the student requires constant 1:1 ABA instruction throughout the day and BCBA supervision, which was not included in the IEP. The parent also disagreed with the proposed site REDACTED because she was informed that ABA is not used at the school and the school has only one BCBA on staff. She also wrote that the student had not been recently evaluated. (Par Ex. N).
• • On June 6, 2021, the CSE provided the parent with a list of providers who could perform independent neuropsychological evaluations. (Par. Ex. O). On June 8, 2021, the parent reached out to several evaluators. The record indicates that none were immediately available to perform the evaluation. (Par. Ex. P). The parent testified at least one of the evaluators had a funding question, which she was unable to answer; and that when she tried to get information from the CSE Chairperson, she did not receive a response. (Par Ex. Z3).
• • On June 9, 2021, the DOE sent the parent a letter offering to implement the student’s January 12, 2021 IEP at REDACTED (hereinafter referred to as “the recommended site”). The recommended site includes six 6:1:1 classes, as well as classes with different staffing ratios. The total student population is 110 students. The recommended site is housed in a junior high school.
• • The Unit Coordinator at the recommended site is certified to teach special education, grades birth to eighth grade. (Tr. pp. 25-26; 30-31). Within the building as a whole, there are approximately 400 to 500 students. (Tr. pp. 40-41). The recommended school is housed on the third floor, on one side of the building, with a separate entrance; and there is very little interaction between the students at the recommended school and the junior high school students. (Tr. pp. 45-46). The recommended school has six SLT providers on staff. (Tr. p. 41).
• • She testified that the student’s mother requested a virtual tour in June 2021, after receiving the placement letter. A virtual tour was provided, which included a discussion of the curriculum and teaching methods. The parent was shown the nursing office, related service areas and classrooms. The Unit Coordinator testified that there was an open seat for student for the 2021/2022 school year, and that all of the services recommended for the student, including the management needs described in the IEP, could have been provided at the recommended site..She testified that recommended school provides separate classrooms for SLT and Counseling providers. (Tr. pp. 27-29, 31, 34).
• • The Unit Coordinator testified that the recommended school utilizes a multisensory approach and components of ABA, therapy, including positive reinforcement, prompting, repetition and generalization, as well as picture exchange. (Tr. pp. 34, 37). She testified that ABA was very important to the parent; and that she explained to the parent that school uses many different parts of ABA methodology. She testified that in another building of the school there is a BCBA (board certified behavior analyst), available to provide advice. (Tr. p. 35). She testified that the IEP goals are data driven; and based upon SANDI and FAST assessments. (Tr. pp. 37-38, 43). The student’s IEP goals would be modified once he was enrolled at the school. (TR p. 46).
• • The parent testified that when she spoke with the Unit Coordinator; she was informed that the school did not use ABA methodologies. She was concerned that related services were combined into two very noisy rooms with lots of people, which would be distracting. She testified that the Unit Coordinator could not tell her if her son would be grouped with students of similar functional levels and learning profiles. (Par. Ex. Z3). She corroborated the testimony of the Unit Coordinator, that a teacher could access BCBA methodology from a provider who also serves other locations. (Tr. pp. 196-201).
• • The parent obtained an independent neuropsychological evaluation, (with testing performed in October 2021), which included an observation of the student at the private school. On measures of intellectual functioning and cognitive development, the student obtained a Full Scale IQ score of 55, with a meaningful difference between his nonverbal IQ of 69 and his Verbal IQ of 46. The results of the testing in combination with his adaptive functioning indicated a mild to moderate impairment in intellectual functioning and cognitive development. His language was also moderately to severely delayed. He was judged to be functioning well behavioral and emotionally at school. He continued to show qualitative abnormalities in reciprocal social skills and communication skills, as well as the ongoing presence of repetitive and restricted patters of behaviors. He continued to meet criteria for Autism Spectrum Disorder with accompanying intellectual and language impairment. His overall level of language impairment was judged to be severe. It was recommended that he continue to be placed in a small classroom setting with a low student to staff ratio, so that he received the consistent and frequent supports he requires to learn; with a particular focus on language and social development. It was further recommended that he continue to receive related services of SLT, OT and Counseling at current frequencies. (Par. Ex. R; Par. Ex. AA).
• • The neuropsychologist testified that the student has relative strengths in visual-spatial processing, graphomotor skills and activities of daily living (“ADL”s), with relative weaknesses in receptive and expressive language skills, verbal cognition and reasoning, and various facets of reading comprehension. In his affidavit, he wrote that in addition to the recommendations made in his report, the classroom staff should receive supervision from a BCBA, with ABA informed support provided by the classroom staff. He recommended that he be provided with SLT fives times per week individually and OT once per week. He wrote that the private school provides an appropriate class for the student. He wrote that the parents paid $2,500 for his evaluation. (Par. Ex. AA; Tr. p. 212).).
• • The neuropsychologist testified that the student would benefit from multisensory instruction, positive reinforcement, movement breaks, repetition of instruction and directions.

(Tr. pp. 215-216).

The parent sent a copy of the independent evaluation to the CSE, on December 1, 2021.(Par. Ex R2). She testified that she was not contacted to update or revise the January 2021 IEP until February 2022. (Par. Ex. Z4). Neither party offered into evidence an updated or revised IEP.

• • On June 10, 2021, the parents signed a contract enrolling the student at the private school for the 2021/2022 school year, at a cost of $104,553. (Par. Ex. C). As of March 10, 2021, the parent paid 0 leaving a balance due of $104,553. (Par. Ex. D). The parent testified that the parents are unable to pay the tuition, based upon their income, and requested direct payment of the balance due. (Par. Ex. Z4). A copy of their tax return was received in the record. (Par. Ex. S).
• • June 17, 2021, the parents wrote to the CSE stating that in the absence of an appropriate and timely program and placement for their son, they planned to enroll him at the private school (as well as other services) and seek funding. They specifically cited the CSE’s failure to recommend ABA instruction and BCBA supervision. With respect to the recommended site, they complained that related services are provided in combined rooms, which are unsafe and noisy, and that they lacked information about the functional abilities of peers with whom the student would be placed. (Par. Ex. B).
• • The executive director of the private school testified that she is certified in special education, general education and as a school district administrator teacher. (Tr, p. 105.). This is the student’s third year at the private school. (Tr. p. 110). The private school utilizes ABA methodology and has on staff two licensed BCBA’s on staff. The related services providers are certified and licensed. (Tr. pp. 106-107). 62 students are enrolled at upper school (which the student attends). (Tr. p. 108). Parent meetings are held twice per month. One of those meeting is a parent training workshop. (Tr. p. 109). The student attended the private school remotely during the Summer of 2021, with all of the related services he received during the ten month school year. (Tr. pp 168-169, 173). He received academic instruction in a group of two to three students, and receive his related services individually. He received whole group instruction for specials in a class of approximately ten students. (Tr. pp. 176-178).
• • The student’s class consists of eight students with one teacher and two teaching assistants. Whenever there is a need, the ABA specialist will conduct a behavioral assessment, collect data, define behavior, and train staff and provide additional behavioral supports. (Tr. p. 111). The student receives related services of SLT, OT and Counseling. OT was added to the student’s program. to help with sensory processing, attention and executive functioning. (Tr. p. 112). She testified that since attending the school, the student has improved in his ability to attend and in his emotional regulation. (Tr. p. 115).
• • A variety of methodologies are used in the student’s class, including TEACHH, which involves the use of structured space and time, and completion of tasks, QBS,, which is a method of dealing with conflict and aggression, floor time, and a multisensory approach..(Tr. pp. 119-123).
• • Teachers collect data on academic skills, and progress toward goals.

The student has not had a behavior plan during the current school year. (Tr. pp. 123-125).

• • The student’s teacher has a Master’s Degree in special education. (Tr. p. 128). She described her experience teaching in public schools. (Tr. p. 130). She testified that the student is currently in a classroom with nine students with similar academic and behavioral needs. The class has two teacher assistants (“TA’S”). (Tr p.131, 144). One of the TA’s has a master’s degree in social work. The other TA has a High School diploma and some college credits. (Tr. p. 148). Two of the other students in the class have individual paraprofessionals. The class also includes a student teacher. (Tr. p. 132).
• • At the start of the school year, the student was easily distracted, and required a great deal of prompting and redirection. He struggled in his engagement with the other students. She testified that he needs a lot of visual supports and extended wait time, due to his slow processing speed. (Tr. pp. 133-134).
• • The teacher conducted assessments of reading, writing and math. For reading, he was assessed using the Fountas & Pinnell. For writing, he was asked to write sentences based upon visuals. The student’s teacher testified that she teaches all of his academic subjects. The school has a physical education coach, an art therapist and teachers of music and drama. (Tr. pp. 134-136). She testified that the school is not an ABA school; but that a BCBA is available for assistance. (Tr. pp. 135-136).
• • For reading the student’s goals are to improve his fluency and comprehension. Most of his reading instruction is with a group of two to three students. Whole group instruction is also provided. (Tr. pp. 137, 147-148). She testified that during the current school year, the student has improved in his reading fluency and comprehension. Math is taught using visuals and manipulatives. During the current school year, the student learned to add and subtract with regrouping, and how to multiply. He is currently learning how to divide within 100. He has also progressed in his knowledge of time and money (Tr. pp. 139-141). He has also progressed in his self-confidence and his social interactions. (Tr. p. 143). Counseling is provided individually. SLT is provided five times per week. One of the sessions is in a group. (Tr. pp. 144, 152; Par. Ex. G-1). The student receives one thirty minute session per week of OT, and one thirty minute session per week of Counseling. (Par. Ex. G-1, H). In OT, specific areas of therapeutic focus include self-regulation, visual-perceptual skills, and fine motor coordination. (Par. Ex. H-7).
• • The private school serves students with Autism, Social/Emotional disorders and Learning Disabilities. Students are grouped based upon their disabilities and needs. (Tr. pp. 156-157).

Findings of Fact, Conclusions of Law and Order The school district bears the burden of proving the appropriateness of the recommended program. Education Law 4404(1). The school district must comply with the procedural requirements of the Individual with Disabilities Education Act. (IDEA), and the IEP developed through its CSE must be reasonably calculated to enable the student to receive meaningful educational benefits. (Board of Educ. v. Rowley, 458 U.S. 176, 192 [1982]. The instruction offered must be specially designed to meet the child’s unique needs through an individualized education program. Endrew F. v. Douglas County School District, 137 S. Ct. 988 (2017). The IEP must be reasonably calculated to enable the child to make progress appropriate in light of his circumstances. Id. at 1002. The IDEA guarantees an appropriate education, “not one that provides everything that might be thought desirable by loving parents”. Walczak v. Florida Union Free School District, supra, citing Tucker v. Bay Shore, 873 F. 2d 563 (2d Cir. 1989).

Procedural violations, may constitute a denial of a Free and Appropriate Public Education (“FAPE”) if they "impeded the child's right to a [FAPE]," "significantly impeded the parents' opportunity to participate in the decision making process," or "caused a deprivation of educational benefits." R.E. v. New York City Dept. of Educ., 694 F. 3d 167 (2d Cir. 20212), citing 20 U.S.C. § 1415(f)(3)(E)(ii).

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 be Board of Education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim. Forest Grove School District v. T.A., 557 U.S. 230 (2009); School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U. S. 359 (1985).

The fact that the facility selected by the parents to provide special education services to the child is not approved as a school for children with disabilities does not preclude an award of reimbursement. Florence School District Four et al. v. Carter, 510 U.S. 7(1993).

Scope of Hearing

A party requesting an impartial hearing may not raise issues at the impartial hearing that were not raised in its original due process complaint notice unless the other party agrees. 8 NYCRR 200.5 (j)(1)(ii); See R.E. v. New York City Dept. of Educ., supra.

While the due process complaint does not specifically allege that the CSE relied on outdated evaluations, it does allege that the parent reached out to the CSE, on more than one occasion, regarding the need for an evaluation; before securing her own independent evaluation. (Par. Ex. A-7), and the record supports that allegation.

34 C.F.R. Sec. 300.502(b) provides that a parent has a right to an independent educational evaluation, at public expense, if the parent disagrees with the evaluation obtained by the public agency, subject to the following conditions:

(2) If a parent requests an independent educational evaluation at public expense, the public agency must, without unnecessary delay either –

(i) File a due process complaint to request a hearing to show that its evaluation is appropriate; or

(ii) Ensure than an independent evaluation is provided at public expense, unless the agency demonstrates in a hearing pursuant to Sec. 300.507 through 300.513 that the evaluation obtained by the parent did not meet agency criteria.

In these proceedings, the Department of Education (“DOE”) neither commenced a hearing to demonstrate the appropriateness of its evaluation nor ensured that an independent evaluation was provided to the parent, without delay. The DOE did not respond to the parent’s original request for an independent evaluation (made in February 2021) for almost four months. When the parent’s independent evaluation was provided to the CSE, it failed to promptly reconvene to review it; even though the parent had repeatedly raised concerns about the need for updated evaluations.

Furthermore, while it is true that the complaint focused on the IEP’s omission of ABA instruction, it does contain an allegation that the student should receive related services of OT. (Par. Ex. A5). It further alleges that the CSE did not reconvene following the receipt of the independent evaluation, to incorporate its recommendations for the student. (Par. Ex. A8). The independent neuropsychologist specifically recommended that the student continue to receive OT.

The program recommended by the CSE was in many respects similar to the private program. It included a staffing ratio of 3:1 (6:1:1, as compared with the private school’s 9:3 ratio); SLT five times per week, availability of consultation with a BCBA for behavioral issues, and parent counseling. Nevertheless, I find that the omission of OT from the student’s educational program was significant, as deficits persisted in his sensory system and executive functioning, which affected his ability to participate in community skills.

For the foregoing reasons, I find that the January 12, 2021 was substantively inadequate because it did not include OT as a related service. I also find that the CSE’s delay in authorizing the independent evaluation and its failure to review the evaluation promptly, when it was received, caused a deprivation in educational benefits.

For all of the foregoing reasons, I find that the CSE failed to meet its burden of proving the appropriateness of its recommendations for the 2021/2022 school year.

Appropriateness of Parental Placement To qualify for funding under the IDEA, the parents must demonstrate that the parental placement provides “educational instruction specially designed to meet the unique needs of a handicapped child supported by such services as are necessary to permit the child to benefit from instruction.” See Frank G. v. Bd. Of Educ. Of Hyde Park, 459 F. 3d 356, 365 (2d Cir. 2006) (citing Rowley). cert. denied, Board of Educ. Of Hyde Par, v. Frank G. 128 S. Ct. 436 (2007).

The private school met the student’s academic and emotional/behavioral needs, by providing a small student to teacher ratio, small group instruction, parent counseling, and related services of SLT, Counseling and OT. The student progressed in reading fluency and comprehension, and in his math skills, during the 2021/2022 school year. He also improved in his ability to attend and in his emotional regulation. While the student did not require a behavior plan during the 2021/2022 school year, his behavior had previously been an issue; and a BCBA was on staff and available for consultation, if needed.

For all of the foregoing reasons, I find that the parents met their burden of proving the appropriateness of the parental placement.

Equitable Considerations In determining whether equitable considerations support a request for reimbursement, the courts will consider whether the parents have cooperated with the school district throughout the process to ensure that their child receives a FAPE. Bettinger v. New York City Bd. of Educ., 49 IDELR 39 [S.D.N.Y. Nov. 20, 2007]. The Courts must consider all relevant factors, including whether the parent participated in the IEP meeting, visited the proposed placement and provided timely notice of her intent to place the student in a private school. See M.H. and E.K. v. New York City Dept of Education, 685 F 3d 217 (2d Cir. 2012

• • The record indicates that the parents cooperated with the DOE by participating in the IEP meeting, sharing the private evaluation, and providing notice of their disagreement with the CSE’s recommendations and their intention to unilaterally place the student and seek funding.
• • The parents presented evidence that their income is not sufficient for them to pay the annual tuition at the private school, (which is $104,553), and seek reimbursement.

For the reasons set forth above, I find that the parents are entitled to direct funding for the student’s tuition at the private school for the 2021-2022 school year, in the amount of $104,553.

Funding for Independent Evaluation

While the DOE ultimately responded to the parent’s repeated request for an independent evaluation, the parent faced delays in securing a provider available to conduct the testing. The amount charged by the independent neuropsychologist, $2,500, is modest, in comparison with fees paid for similar testing in the New York Metropolitan Area. See Application of a Student with a Disability, Appeal No. 21-228. Application of the New York City Dept of Educ., Appeal No. 21-135. Under the circumstances, I find that the parents should be reimbursed for their expense in securing the independent evaluation.

Transportation The student’s IEP already includes special transportation consisting of a minibus and curb to school. Although the parents requested limited time travel, they did not submit any documentation to support a specific time limitation; and the record indicates that the length of the student’s present ride to and from school is acceptable. The parent explained that the student required air conditioning on his bus, due to asthma. The student’s history of asthma is well documented in the record. Accordingly, I will order the CSE to add air conditioning, to the student’s special transportation accommodations.

ORDER

For all of the foregoing reasons, it is hereby ordered that the DOE shall, within 14 days of this decision;

• • Directly fund the student’s tuition at the private school for the 2021-2022 school year ($104,553);
• • Reimburse the parents $2,500 for the independent neuropsychological evaluation; and
• • Reconvene an IEP meeting to add air conditioning to the student’s special transportation accommodations.
• • Dated: June 24, 2022 Dora M. Lassinger

DORA M. LASSINGER, 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 Office (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.

DOCUMENTATION ENTERED INTO THE RECORD

• • Impartial Hearing Officer Exhibits
• • Parent’s Closing Statement, 6-21-22, 14 pp.
• • DOE Closing Statement, 6-21-22, 10 pp.
• • Orders of Extension, various dates, 5 pp.

Department of Education

Exhibit

Dated

Description

No. of

Pages

12/7/2021

Due Process Complaint

9

6/17/2021

Ten Day Notice

2

1/12/2021

Individualized Education Program and

6

June 9, 2021

Prior Written Notice

4

June 9, 2021

School Location Letter

3

12/11/2020

Notice of IEP Meeting

3

7/28/17

Letter with Neurodevelopmental Evaluation

13

7/22/17

Auditory Processing Evaluation

5

6/11/19

Assistive Technology Evaluation

8

10 08/2021 Quarterly Progress Report 9

Parent’s Exhibits

REDACTED

Footnotes

[1] The parent alleged that the recommended program was deficient because it did not include Applied Behavioral Analysis (“ABA”) instruction; that the manner in which related services were provided at the recommended site was inappropriate; and that the CSE failed to reconvene upon receipt of the parent’s independent evaluation. The parents alleged that the student should receive Occupational Therapy (“OT”) (See Par. Ex. A5), and complained that at the recommended site, PT and OT are provided in one combined room. (Par. Ex. A 7. As of the time of hearing, the student was receiving transportation. Parent’s counsel stated that the parents also incurred costs for driving the student to school, when he did not receive transportation; however no evidence was presented regarding those expenses. (Tr. pp. 21-22). Nor did the parents include any request for transportation reimbursement in their closing statement. (IHO Ex. I). Therefore, the request for reimbursement for transportation expenses is deemed withdrawn.

[2] The progress report indicated that the student was receiving OT once per week for thirty minute sessions provided through video conferencing, largely focused on independent living skills and executive functioning skills. The student continued to work on keyboarding skills, using two hands to type accurately. Continuation of the service was recommended to increase the student’s independence throughout the school day. (DOE Ex. 10-9).