NY IHO #223104: New York City... | Special Education Law

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FINDINGS OF FACT AND DECISION

Student’s Name: REDACTED (“Student”)

Date of Birth: REDACTED

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

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

Record Close Date: September 16, 2022

Hearing Officer: Randy Glasser, Esq.

On December 22, 2021, REDACTED Esq., of REDACTED, filed a due process complaint (“DPC”) on behalf of the Parents and their child, the Student, regarding his special education program and services for the 2020/2021 school year, pursuant to the Individuals with Disabilities Education Act (the “IDEA”) (Parent Ex. “A”). This Hearing Officer was appointed as the Impartial Hearing Officer (“IHO”) on December 28, 2021, after the appointment of the previous Hearing Officer for this case was rescinded. A Hearing went forward for this matter on March 9, 2022, March 21, 2022, March 25, 2022, April 12, 2022, April 25, 2022, May 5, 2022, May 24, 2022, June 13, 2022, and June 27, 2022. District Representative, REDACTED appeared for the District, and REDACTED, Esq. for the Parents and Student.

Lists of the appearances and documentary evidence submitted in this proceeding are appended to this Decision. The compliance date for this matter was extended to September 21, 2022 (IHO Ex. “II”).

Pursuant to this IHO’s direction, the Parties submitted written closing statements on July 25, 2022 (see: IHO Ex. “III” and “IV”, respectively).

BACKGROUND AND POSITIONS OF THE PARTIES

The Student is REDACTED (REDACTED) years old, classified as a student with an Other Health Impairment, and diagnosed with Attention Deficit Hyperactivity Disorder, predominately inattentive type, hearing loss (mild to moderate), and a specific learning disorder with impairment in writing (Parent Ex. “BB” at ¶8).

The Student’s Individualized Education Program (“IEP”), dated January 13, 2020, for the 2020/2021 school year recommends the following ten (10) month special education program and services: Integrated Co-Teaching Services for Math, eight (8) times per week, one (1) period per session, and for English Language Arts, twelve (12) times per week, one (1) period per session, along with counseling services in a group of up to five (5) students, one (1) time per week, thirty (30) minutes per session, individual hearing education services one (1) time per week, thirty (30) minutes per session, speech language therapy in a group of up to three (3) students, one (1) time per week, thirty (30) minutes per session, individual speech language therapy one (1) time per week, thirty (30) minutes per session, an individual FM Unit Daily, an audiologist to fit, dispense, and maintain HAT equipment, at the start and end of the school year for maintenance, at the discretion of HES personnel, an HES Provider to monitor equipment and an HES Provider and Audiologist to provide training on care and use of equipment (District Ex. “3”).

The Parents unilaterally placed the REDACTED (the “School”) for the 2020/2021 school year, for which they are now seeking in part, tuition reimbursement (Parent Ex. “A”).

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

FINDINGS OF FACT AND DECISION

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

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

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

Id. (Emphasis added.)

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

• The IDEA empowers a hearing officer to grant the relief he/she deems appropriate. 34 CFR §300.516(c)(3). One such remedy is reimbursement of tuition and related expenses. Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); Burlington Sch. Comm. v. Mass. Dep’t. of Educ., 471 U.S. 359, (1985). Notably, the mere fact that the state educational agency and/or LEA has not approved the private school placement does not bar the parents from reimbursement. Florence County Sch. Dist. Four v. Carter, supra.

The District presented the following witnesses on its direct case: Special Education REDACTED (“DOE Special Education Teacher”), and Assistant Principal, REDACTED (“DOE Assistant Principal”), and on rebuttal, Guidance Counselor, REDACTED (“DOE Guidance Counselor”), and the DOE Special Education Teacher.

The DOE Special Education Teacher testified on direct in relevant part that she was the Student’s fifth grade teacher at PS 290 for the 2019/2020 school year and attended a CSE meeting for the Student on January 13, 2020 (Tr. 90-91), the Student’s strengths and weaknesses, and how he presented as a student in her class (Tr. 94-95), number of students in her class and breakdown of students with IEPs versus those without (Tr. 96), the CSE’s discussion regarding the Student, his use of the FM unit and consideration of the recommendations contained in the neuropsychological evaluation and their incorporation into the IEP (Tr. 96, 97, 98, 101-105), how the goals were formulated and addressed the Student’s deficits (Tr. 106-109), the classroom observation at District Ex. “H” (Tr. 109-110), the Parent’s input at the CSE meeting (Tr. 110-112), her ongoing communication with the Parent during the 2019/2020 school year (Tr. 112), the Student’s final report card for the 2019/2020 school year at Parent Ex. “F”, and why the Student received the grades contained thereon (Tr. 113-117), the Parent did not disagree with the ICT class recommended and the discussion at the CSE regarding SETSS (Tr. 117-118), the Parent did not object to the counseling, hearing services or FM Unit recommended by the CSE (Tr. 118-119), her belief the CSE’s recommended program for the Student was appropriate (Tr. 119-120).

On cross-examination, the DOE Special Education teacher testified in relevant part, that she had a good working relationship with the Student’s parents and they were cooperative (Tr. 121), the purpose of the CSE meeting held on January 13, 2020 was to develop an IEP for the remainder of the 2019/2020 school year and the 2020/2021 school year (Tr. 122), she is familiar with the ICT classes at the District’s Middle Schools (Tr. 122-123), she reviewed the neuropsychological evaluation before the meeting and agreed to continue the Student's ICT class and services on his IEP (Tr. 126), she agreed with certain statements on the IEP (Tr. 129-133), the Student would not necessarily benefit from a small class of between three and fifteen students or SETSS (Tr. 134-135, 137), the evaluations relied upon by the CSE when developing the IEP (Tr. 141-143), the use of the FM Unit in the classroom (Tr. 144-145), progress reports for goals (Tr. 145-150), standardized testing (Tr. 150-153), when the students switched to remote learning during COVID, it was not the same class schedule and the class was not the same frequency (Tr. 153-155, 158), the services were implemented pursuant to the Student’s IEP when he was on remote learning (Tr. 156-157), discussion regarding classroom observation at the CSE meeting, e.g., sometimes the Student would lose focus, and he was most successful in small group explicit instruction of three (3) to five (5) students (Tr. 159-161), the demands are greater in middle school than fifth grade (Tr. 161-162), the Student would not have benefited from adding SETSS to his IEP when transitioning to the middle school (Tr. 162-163), why the Student was in counseling in fifth grade and how his social-emotional needs were addressed through counseling (Tr. 163-164), the improvements in the Student’s anxiousness (Tr. 164), the Student’s anxiety associated with learning challenges were not due to the size of the class (Tr. 165), how she dealt with the class for the Student when it was noisy (Tr. 166-167), and Exhibit “F”, including but not limited to the fact that he was meeting standards in all areas, which was based upon his performance during remote learning (Tr. 172-178).

On redirect the DOE Special Education Teacher testified in relevant part, that there was some overlap with the speech and language goals and what she was working on in the classroom, which she spoke about regularly with the speech therapist, but she only monitored his academic goals (Tr. 242-243, 246, 247), absent progress reports, the IEP at District Ex. “3” was provided to the Parents (Tr. 247), the discussion with the Parent regarding the small group instruction provided to the Student that is noted on the IEP (Tr. 249-252), the option for students to work in the classroom (Tr. 253), the Parent never contacted her after the IEP Team meeting held on January 13, 2020, about e.g., modifying the IEP (Tr. 254-255), the Student would have benefited from and made progress pursuant to the program and services contained in the IEP dated January 13, 2020 during his sixth grade year and why (Tr. 262-263).

On recross-examination the DOE Special Education Teacher testified in relevant part that even though the Student continued to receive his ICT classes and services during remote instruction, they were not at the frequency mandated on his IEP (Tr. 295, 299, 300) and the possible public-school placements for the Student she discussed with the Parent sometime between January and March 2020 (Tr. 305).

The DOE Assistant Principal testified on direct, and redirect, in relevant part, that the Student was placed on her roster for the 2020/2021 school year at REDACTED Middle School, for which the Parents selected remote instruction (Tr. 353-354, 355), the Parent sent an email to the REDACTED Middle School before the beginning of the school year asking a few questions about the program, which were answered by the guidance counselor (Tr. 356-357, District Ex. “8”), and the communications between the REDACTED Middle School and the parents of students before the 2020/2021 school year began (Tr. 357).

On cross-examination and redirect the DOE Assistant Principal testified in relevant part that the REDACTED Middle School was prepared to provide the Student with his ICT classes, services and FM Unit pursuant to his IEP for the 2020/2021 school year (Tr. 363-365, 412), how such program would have been implemented when the Student received remote instruction (Tr. 377), the number of hours daily the Student would have received on remote classes (Tr. 379), implementation of the Student’s counseling services while on remote instruction (Tr. 387-389), the documents used to fashion the Student’s program (Tr. 391), and there are FM Units and a hearing education specialist providing services to the students at the REDACTED Middle School (Tr. 398, 399)

The DOE Guidance Counselor testified on rebuttal in relevant part that she never told the Parent that the School had a great program for the Student (Tr. 1010), she knows the name of the School but does know about the program (Tr. 1011), she discussed public schools with the Parent that are in her neighborhood/zone (Tr. 1012-1013), the counseling services she provided to the Student for two (2) years (Tr. 1019), the Parents were very interested in exploring the public school programs, and told her that they were exploring private school programs as well (Tr. 1022, 1024), she discussed REDACTED Middle School and comparable programs with the Parents (Tr. 1025), the Parents cooperated (Tr. 1025), and she only recommends public school and not private school options (Tr. 1026).

The DOE Special Education Teacher testified on rebuttal in relevant part regarding the classroom observation discussed in the neuropsychological report at Parent Ex. “I”, that she spoke with the woman from Dr. REDACTED’s office when she conducted the observation and the information she shared (Tr. 1031-1032), what happened during the observation (Tr. 1033), she never spoke with Dr. REDACTED (Tr. 1033-1034), and the classroom observation contains an accurate description of the Student (Tr. 1036).

The Parents presented the following witnesses on their direct case: REDACTED, Assistant Head of School (“Assistant Head of School”), REDACTED, Math Teacher (“Math Teacher”), REDACTED, Earth Science Teacher (“Earth Science Teacher”), REDACTED, Director (“Director”), REDACTED, History Teacher (“History Teacher”), REDACTED (“Neuropsychologist”) and the Parent.

The Assistant Head of School’s testimony is contained in Parent Ex. “Y”. She also testified in relevant part on cross-examination that she first met the Student in September 2020 (Tr 465), she plays no role in the admissions process, and then explained the admissions process (Tr. 465-466), the English Class offered to the Students at the School (Tr. 467), the Student was enrolled in Foundations for the writing but not the reading class (Tr. 470), the Student could either attend classes remotely or in-person and the Student attended in-person (Tr. 471), there were eight (8) students in the Student’s English class which includes both the students that attended remotely and in-person (Tr. 471-472), the Student was placed in the first of two tracks (Tr. 472), who made the decision and why it was a good fit for him (Tr. 473-475), the assignments given to the students over the summer (Tr. 477-480), when the School prepared the student’s schedules (Tr. 480), four (4) of the eight (8) students in the Student’s class had IEPs and the four (4) students without IEPs were neurotypical (Tr. 482), the elements of the holistic support referenced in her affidavit (Tr. 483), and it was important for the Student to develop inferential skills and he benefits from graphic organizers (Tr. 482-483).

On redirect, the witness testified in relevant part what she meant when she stated the Student has strong writing mechanics (Tr. 484), the Student benefitted from his class at the School (Tr. 485), he had no trouble hearing the teacher or his classmates (Tr. 485), and some of his classmates were good role models for him (Tr. 486-487).

On recross-examination, the witness testified that he did not receive hearing education services at the School, there was no audiologist on staff, and he did not use the FM Unit in the classroom (Tr. 491).

The Math Teacher’s testimony is contained in Parent Ex. “W”. He also testified on cross-examination in relevant part regarding the 2020/2021 school year, that he met the Student in August 2020 (Tr. 527), that the Student is “very bright” because he grasps new material quickly (Tr. 536-537), he made the decision with the REDACTED teacher and the sixth-grade teacher to put the Student into the Track-1 math class, which he did not question during the school year (Tr. 538, 541, 588^[1]), five (5) of the nine (9) students in the Student’s class had IEPs, but he does not remember their classifications (Tr. 548, 549), he did not use the Student’s FM Unit in his class because it was small (Tr. 565), the REDACTED Academy (Tr. 567) and the STAR assessment which was administered two (2) times during the school year (Tr. 571, 574), he designs the math class so that students with similar skills are grouped together (Tr. 578), Canvas (Tr. 578-579), and that he has never been to the REDACTED Middle School and seen the ICT class there (Tr. 580, 581).

On redirect the Math Teacher testified why he administered three (3) assessments at the beginning of the school year, which gave an accurate picture of the Student’s functioning level in math (Tr. 586-587), the grades contained on the Report Card at Parent Ex. “P”, what they are based upon, and the progress the Student made throughout the school year (Tr. 588-589, 589-590, 590-591), the statement in paragraph 15 of his affidavit that the Student completed 579 skills for the REDACTED Academy and for the Common Core 6th grade standards he had 73% mastery (Tr. 591-592), the Student did not have a problem hearing in his class, and could hear the other students (Tr. 593, 595), how the Canvas System benefitted the Student (Tr. 595-596), that he taught in an ICT class for one year in a public school and why the Student would not have been appropriately served by an ICT class (Tr. 597, 598).

On recross-examination, the Math Teacher testified in relevant part that the Student did not need an FM unit in his class, he never stood out as having a hearing impairment (Tr. 605), the Report Card and why the Student received a “2” for effort (Tr. 610).

The Math Teacher also testified that he was the special education teacher for the ICT class in the public school where he taught (Tr. 611), the fact that the Student completed 570 out of 1000 for the REDACTED Academy was a big achievement for him, and how it was computed (Tr. 612-613, 616, 617), the Student’s 73% mastery for the Common Core 6th grade standards (Tr. 614).

The Earth Science Teacher’s testimony is contained in Parent Ex. “V”. She also testified on cross-examination, and re-cross examination, in relevant part, regarding the 2020/2021 school year that she taught two sections for sixth grade Earth Science and the Student was in section 6-1 (Tr. 634), she met the Student the first day of school (Tr. 641), why she stated in her affidavit that the Student is “very bright” (Tr. 642), how the Student presented at the beginning of the school year (Tr. 643), the grades she gave the Student contained on his report card at Parent Ex. “P” (Tr. 646-647), how the Student behaved in class and why he received a “2” for behavior every quarter instead of a “1” (Tr. 648-649, 676), three or four out of the nine^[2] students in her class had IEPs and their diagnoses (Tr. 650), that some of these students called out during class, and did not turn in assignments causing them to receive incompletes (Tr. 651), the Student did not use an FM Unit in her class (Tr. 656), she read his IEP dated January 13, 2020 at District Ex. “3” (Tr. 656-657, 660), the students had nine weeks of remote instruction, which was spread out throughout the school year^[3] (Tr. 663), and the behavioral management system she implemented in the classroom (Tr. 672-674).

The Earth Science teacher testified on redirect that her class was smaller in size (Tr. 666), the Student’s facial expressions demonstrating frustration improved during the school year (Tr. 668-669), the students calling out did not interfere with the Student’s learning and why (Tr. 669-670), the Student directly benefited from being in her class (Tr. 670), and what the grades were based upon that are contained on his report card (Tr. 670-671).

The Director’s testimony is contained in Parent Ex. “Z”. She also testified on cross-examination in relevant part regarding the 2020/2021 school year, that she taught one group of students (Tr. 683), there were 340 students with 200 of them having IEPs at the School which provides an “inclusive” program (Tr. 683, 383), there were two tracks for the 6th grade students (Tr. 687), there was a psychologist and speech therapist on staff to provide services to the students (Tr. 689, 690), the speech therapist met with the Student one (1) time per week in a group of three (3) 6th and 7th grade students from October to Mid-May (Tr. 691-692, 693, 697), the last day of school was the Wednesday during the week after Memorial Day (Tr. 695), there were nine (9) students in the Student’s class which met twelve (12) times per week during morning check-in, and was comprised of students aged eleven to sixteen or seventeen years old (Tr. 698), she first met the Student in August 2020 during Orientation (Tr. 701-702), the admission process and documents required, which she does not participate in (Tr. 704-708), the Student’s Spanish class and how it was determined he would take a foreign language (Tr. 713-715), the Student’s reading and writing class and its focus (Tr. 715), how the Deans determined the Student’s placement (Tr. 718-719), he did not receive hearing education services and there was not an audiologist or FM Unit at the School (Tr. 723-724), the counselor felt he did not need counseling services so they were not provided to the Student (Tr. 724), explanatory questions regarding her affidavit (Tr. 718, 219-720), she never visited the REDACTED Middle School program, and does not know how this program would have implemented the Student’s IEP e.g., the program he would have received (Tr. 721-723).

On redirect the witness testified that if the Student had been experiencing anxiety he would have been provided with counseling, the Student had no problem hearing in class and there was no indication he needed hearing education services (Tr. 725, 726-727).

The History Teacher’s testimony is contained in Parent Ex. “X”. He also testified on cross-examination, and recross-examination in relevant part, that he first met the Student in September 2020 (Tr. 895), the Student was in the first of two tracks for his class, how that was determined (Tr. 896, 897), the Student’s schedule, and why the Student received a “2” for effort on his Report Card at Parent Ex. “P” (Tr. 916-921, 940-943).

On redirect, the History teacher testified in relevant part that Track 1 was appropriate for the Student and why (Tr. 927), the Student had no difficulty hearing in his class and why (Tr. 929, 932-933), there was a minimal amount of ambient noise in his class (Tr. 934), and the Student benefited from the program at the School and why, which was also demonstrated by the grades on his report card for the 2020/2021 school year at Parent Ex. “P” (Tr. 934-936, 937-938).

The Neuropsychologist’s testimony is contained in Parent Ex. “BB”. He also testified on cross-examination in relevant part that the Student scored in the 27th percentile, instead of the 21st percentile noted on the evaluation for reading comprehension (Tr. 982).

The Parent’s testimony is contained in Parent Ex. “AA”. She also testified on cross-examination, in relevant part regarding her affidavit, that the Parents paid a nonrefundable deposit of TEN THOUSAND DOLLARS ($10,000.00) to the School on February 25, 2020, which was the deadline, because they wanted to hold a spot for the Student (Tr. 841, 846), the remaining payments to the School were refundable (Tr. 847), and how they calculated that they spent ONE THOUSAND FIVE HUNDRED DOLLARS ($1,500.00) to transport the Student to the School during the 2020/2021 school year (Tr. 851-852).

On redirect, the Parent testified in relevant part that the Student was diagnosed as being developmentally delayed by his pediatrician and the Neuropsychologist (Tr. 857), she shared the Neuropsychologist’s evaluation with the District in November or December of 2019 for the annual review held for the Student on January 13, 2020 (Tr. 859-860), several members of the CSE agreed with the Neuropsychologist’s report that the Student needed direction instruction small class size and structured support (Tr. 863), and the District never asked her whether or not she was in agreement with not conducting updated triennial testing (Tr. 864-865).

On recross-examination the Parent testified that the Student was diagnosed with mild to moderate hearing loss when he was 3½ years old and what additional testing the Parents were looking for as part of the Student’s triennial testing (Tr. 873-874).

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

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

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

In the instant case, as more fully discussed above, the DOE presented two (2) witnesses on its direct case and two (2) on rebuttal. In this regard the DOE Special Education Teacher testified in relevant part regarding the Student’s progress in her class, and as stated on his report card and her belief that the recommended special education program recommended by the CSE for the 2020/2021 school year was appropriate (see: Infra). While the Assistant Principal testified how the ICT classes and counseling contained on the Student’s IEP could be implemented at the REDACTED Middle School (Tr. 377, 388).

The Parents make the following allegations as to why the District allegedly failed to provide a FAPE to the Student for the 2020/2021 school year, which are addressed by this IHO:

• The CSE/SBST^[4] was not duly constituted according to IDEA 2004, Section 1414(d)(1)(B):

Pursuant to 20 U.S.C. §1414(d)(1)(B) a CSE or IEP Team is comprised of the following members:

(i) the parents of a child with a disability; (ii) not less than 1 regular education teacher of such child (if the child is, or may be, participating in the regular education environment); (iii) not less than 1 special education teacher, or where appropriate, not less than 1 special education provider of such child;

(iv) a representative of the local educational agency who—

(I) is qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of children with disabilities;

(II) is knowledgeable about the general education curriculum; and

(III) is knowledgeable about the availability of resources of the local educational agency.

(v) an individual who can interpret the instructional implications of evaluation results, who may be a member of the team described in clauses (ii) through (vi);

(vi) at the discretion of the parent or the agency, other individuals who have knowledge or special expertise regarding the child, including related services personnel as appropriate; and

(vii) whenever appropriate, the child with a disability.

Id. Similarly, 8 NYCRR §200.3(a) provides:

(a) Each board of education or board of trustees shall appoint:

(1) committees on special education in accordance with the provisions of Education Law, section 4402, as necessary to ensure timely evaluation and placement of students. The membership of each committee shall include, but not be limited to:

(i) the parents or persons in parental relationship to the student; (ii) not less than one regular education teacher of the student whenever the student is or may be participating in the regular education environment; (iii) not less than one special education teacher of the student, or, if appropriate, not less than one special education provider of the student; (iv) a school psychologist;

(v) a representative of the school district who is qualified to provide or supervise special education and who is knowledgeable about the general education curriculum and the availability of resources of the school district, provided that an individual who meets these qualifications may also be the same individual appointed as the special education teacher or the special education provider of the student or the school psychologist. The representative of the school district shall serve as the chairperson of the committee; (vi) an individual who can interpret the instructional implications of evaluation results. such individual may also be the individual appointed as the regular education teacher, the special education teacher or special education provider, the school psychologist, the representative of the school district or a person having knowledge or special expertise regarding the student when such member is determined by the school district to have the knowledge and expertise to fulfill this role on the committee;

* *. *

(ix) other persons having knowledge or special expertise regarding the student, including related services personnel as appropriate, as the school district or the parent(s) shall designate. The determination of knowledge or special expertise of such person shall be made by the party (parents or school district) who invited the individual to be a member of the committee on special education; and

(x) if appropriate, the student;(2) committees on preschool special education in accordance with provisions of Education Law, section 4410 to implement the provisions of section 200.16 of this Part.

Id. (Emphasis added).

The IEP Team that developed the IEP dated January 13, 2020, in part for the 2020/2021 school year, consisted of the following members: the Student’s Special Education Teacher, REDACTED ^[5], the Student’s General Education Teacher, REDACTED, the Parent, District Representative (School Psychologist) REDACTED, the Student’s Speech and Language Pathologist, REDACTED, and the Student’s Guidance Counselor, REDACTED (DOE Ex. “3” at p. 25). Accordingly, pursuant to 20 U.S.C. §1414(d) and 8 NYCRR §200.3, the CSE was properly constituted at the meeting held on January 13, 2020.

2. The CSE/SBST failed to have all required members attending the meeting: See discussion above.

3. The CSE SBST did not include a special education teacher that meets necessary criteria as defined by applicable federal and state education law: See discussion above.

4. The CSE SBST did not include a general education teacher that meets necessary criteria as defined by applicable federal and state education law: See discussion above.

5. The individual listed as the district representative from the CSE/SBST did not meet necessary criteria as defined by applicable federal and state education law: See discussion above.

6. The CSE/SBST team members lacked the necessary qualifications to interpret the instructional implications of the evaluation results: See discussion above.

7. The CSE/SBST team members lacked the necessary qualifications and/or credentials: See discussion above.

8. The CSE/SBST failed to invite the professionals, who have worked with and/or evaluated the student, to the CSE/SBST meeting: See discussion above.

9. The CSE/SBST failed to invite teachers, services providers and/or school personnel, who know and/or have worked with the student: See discussion above.

10. The IEP was substantively flawed, denying the Student a FAPE. More specifically, the Parents do not believe that the CSE/SBST recommendations can meet the Student’s needs for the following reasons:

a. An ICT classroom is not an appropriate setting for the Student, as he requires individualized attention and frequent redirection to keep him on task. The following statement in the Student’s IEP dated January 13, 2020 confirms the need to stay on task, “While he does appear to be focused he is not always fully paying attention to the lesson and then is unsure how to transition to independent work independently. He requires frequent check-ins from teachers to explain the directions again, and make sure he is on the right track. Sometimes he will sit at his eat and appears to be daydreaming and will need reminders to continue working.” The DOE Special Education Teacher testified in relevant part, how the Student received small group instruction in the ICT class (Tr. 249-252), and that she agrees that he does need small group instruction which may consist of anywhere between three (3) and fifteen (15) students (Tr. 133). The DOE Special Education Teacher continued to explain:

[Parents’ Attorney]: Okay. And is it also then fair to say that [the Student] would benefit from being in a class, a small group class of 3 to 15?

[DOE Special Education Teacher]: Not necessarily, no.

[Parents’ Attorney]: Well, you're saying not necessarily so under what circumstances would he benefit?

[DOE Special Education Teacher: I think it depended on the content, the topic. You know, if it's, let's say, a math lesson where he's a bit stronger, he was fully able to participate in the whole group math lessons and social studies lessons. If it's to teach a specific strategy that's individualized to him, then a small group within the ICT setting would benefit him.

(Tr. 133-134). The DOE Special Education Teacher also testified as follows:

So continued support of services at school, we felt that his current mandates were meeting his needs, and he was making steady progress, so it made sense to continue all of those services. Preferential seating to maximize engagement. And enhanced hearing and visual cues was put into place for that exact reason so that he could be as focused as possible, and also to limit distractions. And enhanced hearing and visual cues. He received regular small group instruction in all subject areas. Frequent teacher check-ins, support, guidance, and positive feedback during independent work were all implemented to support [the Student]. Repeated directions orally and in writing, and also breaking down instructions. All of those were implemented.

(Tr. 99).

Moreover, pursuant to the classroom observation contained in the Neuropsychological evaluations at Parent Ex. “I” and ‘J”, the Student received the redirection he needed to stay on task. In this regard, the Neuropsychological evaluations states, “[The Student] laid on his stomach next to him and the 2 boys began talking. When [the General Education Teacher] became aware of this she instructed [the Student] to return to his seat and to get back to work. [The Student] was compliant.”

Also, pursuant to the IEP developed for the 2020/2021 school year, it states that the Student will have on-task focusing prompts for all assessments, when he is “looking around the room or not working productively” (DOE Ex. “3” at p. 20). However, there was no testimony or evidence proffered by the District how this support would continue in the classroom when the Student transitioned to the Middle School, other than the Assistant Principal’s testimony regarding the fact that she started to build a program for the Student during the Summer before he would have started school for the 2020/2021 school year, and the Student’s ICT class and counseling could be implemented at the REDACTED Middle School (Tr. 363, 377, 388). b. The Student requires a small class where teachers can assist him on tasks in a very small group or on a one-to-one basis, and the recommended program does not provide him with this opportunity. This allegation appears to be based upon the statement contained in paragraph “16” of the Neuropsychologist’s affidavit at Parent Ex. “B” (see Petitioner’s Post-Trial Memorandum of Law and Closing Statement at pp. 10-11). Pursuant to the discussion above, the Student was placed in a small class where teachers did in fact assist him on tasks (see: Infra). However, as stated above, the District failed to proffer any evidence explaining how such assistance would continue when the Student attended REDACTED Middle School, other than the fact that the REDACTED Middle School could implement the ICT classes set forth on his IEP (see: Infra). c. The Student requires a learning environment that will challenge him, and that provides him with step-by-step support so that he does not fall behind in her areas of weakness. Parents’ Attorney did not offer any evidence in this regard. Accordingly, this allegation is unsubstantiated. d. The CSE/SBST failed to conduct current evaluations or to collect adequate and appropriate data on which to make a program recommendation. A district must conduct an evaluation of a student where the educational or related services needs of a student warrant a reevaluation or if the student's parent or teacher requests a reevaluation (34 CFR §300.303)(2); 8 NYCRR §200.4(b)(4)); however, a district need not conduct a reevaluation more frequently than once per year unless the parent and the district otherwise agree and at least once every three years unless the district and the parent agree in writing that such a reevaluation is unnecessary (8 NYCRR §200.4(b)(4); see 34 CFR §300.303(b)(1)-(2)). A CSE may direct that additional evaluations or assessments be conducted in order to appropriately assess the student in all areas related to the suspected disabilities (8 NYCRR §200.4(b)(3)). Any evaluation of a student with a disability must use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the student, including information provided by the parent, that may assist in determining, among other things, the content of the student's IEP (20 U.S.C. § 1414(2)(A); 34 CFR §300.304(b)(1)(ii); see S.F. v. New York City Dep’t. of Educ., 2011 WL 5419847 at *12 (S.D.N.Y. 2011); see Letter to Clarke, 48 IDELR 77 (OSEP 2007)). A district must rely on technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors (20 U.S.C. § 1414(b)(2)(C); 34 CFR 300.304(b)(3); 8 NYCRR 200.4(b)(6)(x)). A district must ensure that a student is appropriately assessed in all areas related to the suspected disability, including, where appropriate, social and emotional status (20 U.S.C. § 1414(b)(3)(B); 34 CFR §300.304(c)(4); 8 NYCRR §200.4(b)(6)(vii)). An evaluation of a student must be sufficiently comprehensive to identify all, of the student's special education and related service needs, whether or not commonly linked to the disability category in which the student has been classified (34 CFR §300.304(c)(6); 8 NYCRR §200.4(b)(6)(ix).

With respect to the Parents’ claim related to evaluations and assessments of the Student conducted by the District, the hearing record shows that the January 13, 2020 CSE considered the 2019/2020 private neuropsychological report and memorialized in part, the results of cognitive and academic testing from the evaluation in this IEP (DOE Ex. “3” at pp. 1-2). Moreover, the CSE meeting at issue in this matter was held in January 2020, approximately one week after the completion of the private neuropsychological dated 9/19/2019 through 1/7/2020 (Parent Ex. “I”). Accordingly, the evaluation was still current, and without a request for a reevaluation or, at least, a more detailed complaint indicating a reason why the CSE should not have relied on this neuropsychological evaluation, the District was not obligated to conduct a reevaluation of the student at the time of the January 2020 CSE meeting. e. The goals are too general and vague, and not specific to the student. Parents’ Attorney failed to offer any evidence in this regard. Accordingly, this allegation is unsubstantiated. f. The goals do not address all of the Student’s needs. See discussion below. g. There was no academic reasoning as to how the recommended program could meet the student’s needs. To the contrary, the DOE’s Special Education Teacher gave extensive testimony addressing this allegation (see: Infra). h. The IEP failed to sufficiently identify the Student’s present levels of functional performance and the full range of his strengths and weaknesses both for academics and for social/emotional development, and include corresponding goals required to address his identified needs. The IEP failed to adequately describe the student. Parents’ Attorney did not offer any evidence in this regard. Accordingly, this allegation is unsubstantiated. i. The goals fail to indicate baseline and target grade levels of performance. Parents’ Attorney did not offer any evidence in this regard. Accordingly, this allegation is unsubstantiated. j. The methods of measuring achievement lack specificity. Parents’ Attorney did not offer any evidence in this regard. Accordingly, this allegation is unsubstantiated. k. The goals were not reasonably calculated to confer educational benefit. Parents’ Attorney did not offer any evidence in this regard. Accordingly, this allegation is unsubstantiated. l. Many of the goals are inadequate in scope and specificity and therefore immeasurable. Parents’ Attorney did not offer any evidence in this regard. Accordingly, this allegation is unsubstantiated. m. The IEP and the IEP goals are not individualized to address the student’s unique needs. Parents’ Attorney did not offer any evidence in this regard. Nonetheless, see the discussion below regarding the fact that not all of the Student’s areas of need, are addressed with corresponding goals. n. The IEP failed to sufficiently identify the Student’s present levels of functional performance and include corresponding goals required to address the Student’s identified needs. Parents’ Attorney failed to offer any evidence or testimony in this regard. Nevertheless, this IHO notes that, all, of the Student’s areas of needs identified on the IEP are not addressed with corresponding goals.

In this regard, the IEP dated January 13, 2020 states, “A goal for [the Student] is to accurately apply what he learned during a writing lesion to his own independent writing. Additionally, a goal for [the Student] is to revise his writing by elaborating on important parts that bring meaning to his piece, however these goals are not contained in this IEP (District Ex. “3” at p. 4). Moreover, this IEP states that the Student continues to struggle with self-esteem, and demonstrate some difficulties with processing information in an efficient manner while processing multiple task demands, evidenced below grade level performances on unstructured tasks, is working on independently managing his FM unit by remembering to bring it with him to each class and ensure it’s turned on and functioning properly, shows difficulty in sharing original ideas, has difficulty solving word problems, etc.; however, there are no corresponding goals (Id. at p. 6). Regardless, every deficit area of the student's functioning need not, have had a corresponding goal in the IEP in order to offer a FAPE (see, e.g., J.L. v. City Sch. Dist., 2013 WL 625064, at *13 (S.D.N.Y. 2013)... failure to address all areas of need though goals does not necessarily constitute a denial of a FAPE)). Nonetheless, in this instance, the evidence in the hearing record support a finding that the lack of goals that should have been developed, specified in the IEP along with the goals to address the areas of need listed above, and the fact that books on audio, a graphic organizer, and the repetition and rephrasing of information, are not listed as accommodations on the Student’s IEP, constitute procedural violations that contribute cumulatively with the other violations to a finding that the district failed to offer the student a FAPE for the school year (see: 20 U.S.C. § 1415(f)(3)(E)(ii); 34 CFR 300.513(a)(2); 8 NYCRR 200.5(j)(4)(ii)). o. The evaluations and data used by the CSE/SBST did not support the proposed recommendation. The CSE/SBST did not have a cogent and reasonable explanation for the recommendation. The DOE Special Education Teacher testified in detail how the neuropsychological evaluation and the data contained therein were used by the CSE to support the proposed recommendation and provided a cogent and reasonable explanation regarding same. (see: Infra). p. The recommendation is contrary to the opinions of the professionals and educators who have direct knowledge of the Student’s needs. This statement is overly broad and without further explanation. Moreover, to the contrary, the DOE Special Education teacher, who had direct knowledge of the Student’s needs, opined that the recommended placement for the 2020/2021 school year was appropriate and why (see: Infra). q. The program recommended does not offer adequate or appropriate instruction, supports, supervision, or services to meet the Student’s unique needs in order to make progress. See discussion above. Moreover, up until the pandemic in March 2020, for the 2019/2020 school year, the Student was Proficient in Mathematics, Physical Education, Social-Emotional Development, and all areas of Science, and Academic and Personal Behaviors; he also excelled in standards for Visual Arts, Music, and Technology. However, he remained below standards in Reading, Writing Listening Speaking and Language, and Social Studies (Parent Ex. “F”). Regardless, the DOE Special Education Teacher testified that the Student received “MT” or meet standards for all areas during the third and fourth marking period in 2020, which was based upon assessments administered during that time period (Tr. 175-176). Nonetheless, see the discussion above regarding why all, of the needs of the Student are not addressed with corresponding goals and the suggested accommodations are not contained in his IEP. In addition, pursuant to his IEP he benefits from listening to books on audio, a graphic organizer, and the repetition and rephrasing of information, but these accommodations are not listed on his IEP (District Ex. “3”). r. The CSE/SBST failed to provide the Parent with adequate information about how the program would be implemented in an actual placement. Parents’ Attorney failed to proffer any evidence or testimony in this regard and therefore substantiate this claim. To the contrary, the DOE’s Special Education Teacher provided credible and substantial testimony as to the fact that the proposed placement for the 2020/2021 school year, e.g., ICT classes, was explained to the Parent at the CSE meeting held on January 13, 2020 and that the Parent did not contact her after the meeting to discuss this matter further (see: Infra). s. The CSE/SBST failed in its affirmative duty to develop an appropriate or adequate IEP. See discussion above, as to why this allegation is substantiated. t. The CSE/SBST failed to provide the Parents with a school location letter. To the contrary see DOE Ex. “9”. u. The NYC DOE has failed to offer the student a FAPE for the 2020-21 school year by violating and committing numerous substantive and procedural violations of Federal, State and local laws and procedures including failure to follow the mandates of the Standard Operating and Procedure Manual (SOPM). See above. Nonetheless, the Parents failed to provide a legal basis as to why the NYC DOE is obligated to follow the SOPM and what exactly this document is. v. Upon information and belief, any proposed school cannot keep the Student safe and does not have appropriate protocols in place to ensure that the Student can maintain his safety from COVID-19. Parents’ Attorney failed to proffer any evidence or testimony in this regard and therefore substantiate this claim, or to provide a legal basis as to how this would impact upon the District’s ability to provide a FAPE to the Student. w. Failure to account for a plan for transition or a plan for distance learning for a complex student with significant needs like the Student is a denial of FAPE. To the contrary, the Assistant Principal at the Middle School provided detailed testimony as to the fact that a plan would have been developed to provide distance/remote learning for the Student for the 2020/2021 school year, if he commenced enrollment at the School (see: Infra).

(Parent Ex. “A” at pp. 4-7).

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

No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.

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

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

In the instant case, the testimony and documentary evidence support the Parents’ claim that the Student’s placement at the School provides him with educational instruction that is specifically designed to meet his unique special education needs, supported by such services that are necessary to permit him to benefit from instruction and established that the Student has, in fact, made meaningful progress at the School. In this regard the Assistant Head of School testified how the School worked using clear outlines and graphic organizers to articulate the Student’s ideas, and they focused on inferential thinking, and ability to develop more complex ideas in his writing, he was placed with peers who were an appropriate match based on age, grade and skills level which was beneficial to the Student in that he was able to learn with and from his classmates, and focused on the Student’s learning in areas in which he would see the most growth; the School ensured he was never far from the teacher in a small classroom, so that he could hear what was being shared, and how instructions and activities were always shared visually both in hard copy and on the board; the Student received extended time and preferential seating, he was placed in an English course with other students who were at or above his level in terms of inferential thinking and idea development so that he was able to learn not just from his teacher but from his classmates as well, some of the texts read in this group were more difficult than the other grouping which allowed the Student to be exposed to more challenging texts and learn about character change, subtext, metaphor, simile, figurative language, etc., how the School focused on character change, and explaining their analysis to address the Student’s struggle with analytical writing and inferential thinking, and utilized Judith Hochman’s Writing Revolution to utilize sentence level skills to articulate higher-level concepts and analysis, and addressed his processing speed by asking him questions in advance of his needing to share an answer and gave the Student extra time to think through both the question and answer prior to having to share it verbally; how they continued to address the Student’s needs when the School had to return to remote learning during the school year, which all resulted in the Student being able to access his education and making progress, and why the School’s program was appropriate for the Student (Parent Ex. “Y” at ¶¶8-18).

Similarly, the Student’s History Teacher testified as to why the Student’s placement in Track 6-1 for World Geography was appropriate and how the determination was made and how the determination was made to put him in that class (Parent Ex. “X” at ¶5), the fact that there were eight (8) students in his class that were placed based on age, grade and ability, and how the Student benefited from being placed with these peers from the small class size e.g., he was able to learn at the same pace and level of sophistication as others in his class, and the fewer students meant he received more of the individual attention that he needed, and he was able to participate and learn “commensurate with his peers” in the class, despite his hearing impairment (Id. at ¶6), how the Student’s educational needs were addressed in the classroom (Id. at ¶¶9, 10), how the Student had the same level of access, instruction and support regardless of whether or not he was in person or receiving remote learning (Id. at ¶¶11, 12), the significant progress he made in World Geography (Id. at ¶13), how he benefited from the modifications, accommodations and individualized attention he received in World Geography (Id. at ¶14), he responded to the structured Writing Revolution program as seen by the fact that his writing became more sophisticated, and how he took advantage of the organizational tools, put his laptop to good and appropriate use and internalized the individual help he received (Id. at ¶15), how any why the Student benefited at the program he was in at the School e.g., his teacher provided direct specialized instruction and was able to review and reteach academic content including from his class; he was able to work on written assignments and time management with his program’s services and it helped him in his class with completing assignment on time and enable him to make the most of the teacher’s written comments and feedback (¶16), and why the program he attended at the School was appropriate (Id. at ¶17).

The Student’s Earth Science Teacher testified how she assisted the Student in her class by she used concrete to abstract prompting questions to help him demonstrate understanding of concepts, graphic organizers to show cause and effect patters, which improved the Student’s ability to think abstractly and connect ideas to each other (Parent ex. “V” at ¶7), she provided instruction and with his program’s teacher to ensure assignments and concepts were scaffolded and modified to meet his needs (Id. at ¶8), why he benefited from being in the Earth Science class he was placed in at the School, why he was placed in the class, and how given the class size the Student was able to access the material and lessons, he sat in the front row in front of the teacher’s desk which gave him clear access to lectures, how his difficulties with understanding abstract concepts and th9inking analytically, and difficulties with written expression and generating his own ideas were addressed in her class (Id. at ¶11), how the Student’s needs were addressed when classes had to be remote (Id. at ¶12), the fact the Student could access the Earth Science curriculum and how this was measured, he showed progress in different areas, and with written assignments he was able to access the curriculum and how, how long-term projects were provided to the Student and the fact that he received an 87 for Semester I and 86 for Semester 2, and why the program at the School was appropriate for the Student (Id. at ¶13, 14). (See also Math Teacher’s testimony at Parent Ex. “W” at ¶¶11-14, 16, Director’s Testimony at Parent Ex. “Z” at ¶¶ 48, 51, 53-55, 58, 60, 64-67, and Parent’s testimony at Parent Ex. “AA” at ¶¶47-49, 52-53, 56-58).

Finally, the Student’s Math Teacher and History Teacher, as well as the Director and Assistant Head of School testified as to how his hearing impairment was addressed and therefore was not an issue when he was in his classes at School, even though he was not provided with hearing education services and did not have access to an FM Unit (Tr. 485, 593, 595, 725, 726-727, 929, 932-933). Accordingly, the School was reasonably calculated to enable the Student to receive educational benefits and was likely to and did in fact produce progress, not regression. is providing is pro The determination of whether, or not equitable factors support a parent’s claim for tuition reimbursement hinges, in large part, on whether, the parent cooperated with the CSE. In the instant matter, the DOE failed to provide any evidence and/or raise any equitable factors, which would preclude or limit tuition reimbursement for the Parent’s unilateral placement of the Student at the School for the 2020/2021 school year. In addition, the District’s witnesses testified the Parents did in fact cooperate (see: Infra). Moreover, the Parents’ provided notice to the District of their intention to unilaterally place the Student at the School, for which they did not receive a reply (Parent Ex. “AA” at ¶¶43-44). In addition, even though the Parent signed the enrollment contract with the School on February 25, 2020 and paid a nonrefundable deposit of TEN THOUSAND DOLLARS ($10,000.00), which was the deadline, because they wanted to hold a spot for the Student (Tr. 841, 846), and the remaining payments to the School were refundable (Parent Ex. “Q”; Tr. 847; see also: Infra).

The District argues that an analysis of the equitable considerations in this case do not favor the Parents because in part e.g., the DPC alleges the Parent did not receive a School Location Letter, which was disproven by District Ex. “9”, the Parent misrepresented the fact when she testified that REDACTED and REDACTED recommended the School, the Parent omitted the Student’s IESP for kindergarten and the Parent testified the Student was not provided with an FM Unit pursuant to this IESP which he in fact was, the Parent never provided the Neuropsychological (see: Infra). However, these allegations go to the credibility of the Parent’s testimony, and not the equitable considerations in this case. Rather, the IDEA enumerates specific instances in which reimbursement may be reduced or denied, due to equitable factors such as if the parents did not inform the district of their rejection of the district's proposed placement at the most recent IEP meeting prior to the child's removal from the district, "including stating their concerns and their intent to enroll their child in a private school at public expense;" if the parents failed to give written notice to the district ten business days prior to the child's removal from the district; or upon a "judicial finding of unreasonableness with respect to actions taken by the parents." 20 U.S.C. §20 U.S.C. §1412 (a)(10)(C)(iii). As seen by the testimony elucidated above and the evidence in this case, these equitable factors do not apply. Accordingly, equitable factors should not preclude the parent from reimbursement in this case.

Based on the foregoing, this IHO finds that the Parents have satisfied the third prong of the Burlington/Carter Criteria for tuition reimbursement. Having met all three (3) of the Burlington/Carter Criteria, the Parents are entitled to reimbursement for the cost of the Student’s tuition at the School for the 2020/2021 school year. The record in this case establishes that the Student’s total annual tuition at the School for the 2020/2021 school year is EIGHTY-TWO THOUSAND FIVE HUNDRED DOLLARS ($82,500.00), of which the Parents paid the total amount (Parent Ex. “Q”, “R”, and “S”).

C. TRANSPORTATION: The Parents request in part, “funding and/or reimbursing[sic] door-to-door special education transportation services to and from the Student’s home and [the School] with limited traveling time (60 minutes) in an air-conditioned vehicle, including reimbursement of monies paid to date and any payments made in the future” (Parent Ex. “A”). In this regard the Parent testified that they paid out of pocket for taxi rides and the MTA bus for the Student to attend the School FIFTEEN HUNDRED DOLLARS ($1,500.00) for the 2020/2021 school year (Parent Ex. “AA” at ¶61). However, Parents’ Attorney failed to make any legal argument regarding this requested relief (IHO Ex. “IV”).

Nonetheless, as explained by the SRO in App. No. 18-115 (2018), citing relevant case law:

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

Id. (emphasis added).

Accordingly, this IHO’s decision that the Parents are entitled to tuition reimbursement, encompasses reimbursement for the Student’s reasonable transportation to the School for the 2020/2021 school year. Since the 2020/2021 school year at the School went from September until the Wednesday after the week of Memorial Day, which is approximately nine (9) months, or approximately one hundred and fifty (15) days, the FIFTEEN HUNDRED DOLLARS ($1,500.00) spent by the Parents appears to be reasonable (e.g., approximately $1,500 divided by 150 days = $10.00 per day) (Tr. 683). Moreover, the District failed to present any evidence countering a finding regarding the reasonableness of this expense.

However, there was no evidence proffered by the Parents substantiating their request for funding and/or reimbursement for door-to-door special education transportation services to and from the Student’s home and the School with limited traveling time (60 minutes) in an air-conditioned vehicle, as requested by the Parents in their DPC (Parent Ex. “A”). Moreover, pursuant to the Student’s IEP for the 2020/2021 school year, he does not need, nor does it provide for special transportation (DOE Ex. “3”). There was also no authority provided by the Parents substantiating their request for such funding/reimbursement for payments made in the future. Nonetheless, since the request for reimbursement of travel expenses is for the 2020/2021 school year and the Parent’s affidavit is dated March 7, 2022, in which the Parent attests they spent FIFTEEN HUNDRED DOLLARS ($1,500.00) on such transportation, which was approximately nine (9) months after the end of the 2020/2021 school year, it does not appear that there were any “future” or other payments for the Student’s transportation, other than what is stated in paragraph 61 of the Parent’s Affidavit (Parent Ex. “AA”). Accordingly, there is no basis for the IHO to award the requested reimbursement for “special” or future transportation costs.

D. REIMBURSEMENT FOR NEUROPSYCHOLOGICAL EVALUATION: The Parents argue in part that because the District allegedly failed to reevaluate the Student and used the Neuropsychological evaluation to develop the IEP, this IHO should issue an order directing the DOE to reimburse the Parents for the cost of such evaluation, totaling SEVEN THOUSAND DOLLARS ($7,000.00) (see: Parent Ex. “T”).

The District maintains the Parents this IHO should deny the Parents’ request because the Parent sought this evaluation on her own terms, the Neuropsychologist is taking credit for a classroom observation he did not conduct, and there is no evidence in the record that the Parent is entitled to same.

Neither party has provided a legal basis for their respective positions on this matter.

The Parents’ argument in this regard is unclear with respect to whether they are seeking reimbursement for this evaluation as a remedy for a denial of a FAPE or as a publicly funded IEE under the IDEA's procedures. As to the former, the Parents to provide a legal basis for this argument. As to the latter, the evidence in the hearing record also does not demonstrate that the parent is entitled to reimbursement of the private evaluations as IEEs.

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. 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 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)). Guidance from the United States Department of Education's Office of Special Education Programs (OSEP) indicates that if a parent disagrees with an evaluation because a child was not assessed in a particular area, "the parent has the right to request an IEE to assess the child in that area to determine whether the child has a disability and the nature and extent of the special education and related services that child needs" (Letter to Baus, 65 IDELR 81 (OSEP 2015); see Letter to Carroll, 68 IDELR 279 (OSEP 2016)). 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)).

With respect to the Neuropsychological evaluation (Parent Ex. “I”), there is no evidence in the hearing record to suggest that the parent requested that the District assess the student prior to that evaluation, nor is there any evidence of a District evaluation in place at that time with which the Parent disagreed. Rather, the Parent testified that the reason why the Parents sought this evaluation was because the Student was doing so poorly in school (Parent Ex. “AA” at ¶21). Therefore, the Parents cannot seek district funding/reimbursement for the 2019 Neuropsychological evaluation as an IEE.

ORDER

IT IS HEREBY ORDERED that no later than thirty (30) days after this Decision, the DOE shall reimburse the Parents the total amount of EIGHTY-TWO THOUSAND FIVE HUNDRED DOLLARS ($82,500.00), representing the Student’s total tuition for the School for the 2020/2021 school year;

AND IT IS FURTHER ORDERED the District shall reimburse the Parents the total amount of FIFTEEN HUNDRED ($1,500.00), representing the total cost of providing roundtrip transportation for the Student to the School for the 2020/2021 school year; within thirty (30) days after the Parent’s presentation of receipts for such transportation to the District;

AND IT IS FURTHER ORDERED that the Parents’ request for funding and/or reimbursement for door-to-door special education transportation services to and from the Student’s home and the School with limited traveling time (60 minutes) in an air-conditioned vehicle, is denied;

AND IT IS FURTHER ORDERED that the Parents’ request for reimbursement for the cost of the 2019 Neuropsychological evaluation is denied.

September 16, 2022

Randy Glasser

Randy Glasser, Esq.

Impartial Hearing Officer

NAMES AND TITLES OF APPEARANCES FOR HEARING HELD ON:

March 9, 2022

DOE

REDACTED, District Representative

REDACTED, Special Education Teacher

PARENTS

REDACTED, Esq., REDACTED

REDACTED, Parent

March 21, 2022

DOE

REDACTED, District Representative

REDACTED, Special Education Teacher

PARENTS

REDACTED, Esq., REDACTED

REDACTED, Parent

March 25, 2022

DOE

REDACTED, District Representative

REDACTED, Assistant Principal

PARENTS

REDACTED, Esq., REDACTED

REDACTED, Parent

April 12, 2022

DOE

REDACTED, District Representative

PARENTS

REDACTED, Esq., REDACTED

REDACTED, Parent

REDACTED, Assistant Head of School

April 25, 2022

DOE

REDACTED, District Representative

PARENTS

REDACTED, Esq., REDACTED

REDACTED, Parent

REDACTED, Teacher

REDACTED, Director

REDACTED, Teacher

May 5, 2022

DOE

REDACTED, District Representative

PARENTS

REDACTED, Esq., REDACTED

REDACTED, Parent

May 24, 2022

DOE

REDACTED, District Representative

PARENTS

REDACTED, Esq., REDACTED

REDACTED, Parent

REDACTED, Teacher

June 13, 2022

DOE

REDACTED, District Representative

PARENTS

REDACTED, Esq., REDACTED

REDACTED, Parent

REDACTED, Clinical Neuropsychologist

June 27, 2022

DOE

REDACTED ugu

, District Representative

REDACTED, Guidance Counselor

REDACTED, Teacher

PARENTS

REDACTED, Esq., REDACTED

REDACTED, Parent

DOCUMENTS ENTERED INTO THE RECORD

IHO Exhibits

I. Class List and Email, undated, 7 pages

II. Order of Extension, 6/27/2022, 1 page

III. Closing Statement for the New York City Department of Education, 7/25/2022, 22 pages

IV. Petitioners’ Post-Trial Memorandum of Law and Closing Statement, 7/25/2022, 29 pages

• DOE Exhibits
• 1. Due Process Complaint, 12/22/2021, 11 pages
• 2. Ten Day Notice, 8/27/2020, 2 pages
• 3. IEP, 1/13/2020, 27 pages
• 4. Prior Written Notice, 1/17/2020, 4 pages
• 5. Prior Written Notice, 1/29/2020, 4 pages
• 6. Classroom Observation, 1/10/2020, 2 pages
• 7. Neuropsychological Evaluation, 11/22/2019, 15 pages
• 8. Emails, 8/2020 – 9/2020, 4 pages
• 9. School Location Assignment, 4/2020, 2 pages
• 10. NYC REDACTED Welcome Letter, 5/2020, 2 pages
• 11. Email, 6/3/2020, 2 pages
• 12. Orientation meeting, 6/12/2020, 2 pages
• 13. Town Hall Reminder, 6/17/2020, 1 page
• 14. REDACTED Middle School Update, 8/6/2020, 2 pages
• 15. Health and Safety Protocols, 8/3/2020, 3 pages
• 16. Update for School reopening, 7/27/2020, 3 pages
• 17. Questions and Answers, 7/29/2020, 6 pages
• 18. REDACTED Middle School Principal Update, 7/28/2020, 4 pages
• 19. Letter from Chancellor, 8/6/2020, 3 pages
• 20. Student Schedule, 8/2020, 1 page
• 21. Email, 6/3/2020, 3 pages
• 22. Email, 6/12/2020, 3 pages
• 23. REDACTED School Orientation Town Hall Reminder Email to Parent, 6/17/2020, 3 pages
• 24. REDACTED School Email to Parent, 8/6/2020, 3 pages
• 25. Update from Principal, 7/27 and 28/2020, 5 pages
• 26. Email, 7/37/2020, 6 pages
• 27. Email, 8/7/2020, 3 pages
• 28. Email, 8/26/2020, 5 pages
• 29. IEP, 3/19/2020, 20 pages
• 30. Emails, October 2019, 4 pages
• Parents’ Exhibits A. Due Process Complaint, 12/22/2021, 11 pages B. Ten Day Notice Letter, 8/27/2020, 3 pages C. Department of Education Response to Ten Day Notice Letter, 9/1/7/2020, 1 page D. Third Grade Report Card, 6/20/2018, 2 pages E. Fourth Grade Report Card, 6/14/2019, 2 pages F. Fifth Grade Report Card, 7/15/2020, 2 pages G. Fourth Grade State Assessment Scores and Scoring Explanation, 2017-2018, 2018-2019, 2019-2020, 2 pages H. 01/10/2020, DOE Classroom Observation, 1/10/2020, 2 pages I. Neuropsychological Evaluation, 09/19/2019, 09/23/2019, 09/26/2019, 10/07/2019, 11/22/2019, 01/07/2020, 16 pages J. Neuropsychological Evaluation, 09/19/2019, 9/23/2019, 09/26/2019, 10/07/2019, 11/22/2019, 07/09/2020, 07/10/2021, 18 pages K. Updated Educational Evaluation, 08/31/2021, 09/10/2021, 10 pages L. Independent School Entrance Exam Individual Student Report, 12/14/2019, 3 pages M. School Program Description, 2020-2021, 3 pages N. School Remote Learning Plan, 110/16/2020, 0 pages O. School Student Schedule, 09/18/202002/28/2022, 2 pages P. School Report Card, 06/11/2021, 1 page Q. School Tuition Affidavit, 06/24/2021, 1 page R. School 2020-21 Tuition and Fees, 02/25/2020, 4 pages S. Proof of Payments to School, 02/25/2020- 01/14/2021, 12 pages T. Invoice for Neuropsychological Evaluation, 09/19/2019, 09/23/2019, 09/26/2019, 1 page U. Proof of Payments for Neuropsychological Evaluation, 09/19/2019- 09/26/2019, 2 pages V. Affidavit, 03/07/2022, 4 pages W. Affidavit, 03/07/2022, 4 pages X. Affidavit, 03/07/2022, 4 pages Y. Affidavit, 03/08/2022, 4 pages Z. Affidavit, 03/08/2022, 15 pages AA. Affidavit, 03/08/2022, 19 pages BB. Affidavit, 4/22/2022, 7 pages CC. School English Recommendation Form, 12/03/2019, 4 pages DD. 5th Grade Report, 11/2019, 03/2020, 4 pages EE. Emails, 9/2/2019, 9/10/2019, 9/11/2019, 9/11/2019, 10/3/2019, 4 pages FF. Email, 05/15/2020, 2 pages GG. Email, 08/17/2020, 1 page HH. Email, 08/17/2020, 1 page II. Email, 08/24/2020, 1 page

NOTICE OF RIGHT TO APPEAL

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

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

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

Footnotes

[1] The witness gave the testimony at Tr. 588 on redirect.

[2] The witness testified on redirect that there were nine (9) students in the Student’s Earth Science class (Tr. 665).

[3] The witness testified on redirect the latter, that the remote instruction was spread out throughout the school year (Tr. 664).

[4] It appears that pursuant to the DPC, SPST means “School Based Support Team”, even though the DPC first states that the abbreviation for same is “CBST” (Parent Ex. “A” at p. 4)

[5] REDACTED testified in relevant part that she was the Student’s special education teacher and REDACTED was the Student’s general education teacher during the 2019/2020 school year, and that REDACTED, the District Representative is also a school psychologist (Tr. 89-90, 92-93).

New York City Department of Education, Impartial Hearing Decision

ORDER