New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 568449 - NYC: 223426

FINDINGS OF FACT AND DECISION

Case Number: 223426

Student's Name: REDACTED

School District: REDACTED

Scho Hearing Requested By: Parent

Record Closed Date: April 22, 2022

Hearing Officer: Dora M. Lassinger The student’s parent filed a request for an impartial hearing on January 3, 2022 challenging the student’s educational program for the 2019-2020, 2020-2021 and 2021-2022 school years and requesting funding for the student’s unilateral placement at the REDACTED (“the private school”) for the 2021/2022 school year, reimbursement for independent evaluations already performed and that the DOE also be ordered to fund an Assistive Technology (“AT”) Evaluation, and compensatory education in the form of a summer program at the private school. (Par. Ex. A; Tr. pp. 12-13), I was designated to hear this matter on January 11, 2022, pursuant to 20 U.S.C. Section 1415(f)(1).

A pre-hearing telephone conference was held on February 14, 2022. An impartial hearing was held on March 22, April 6, and April 8, 2022.

The compliance date was extended twice, with a final compliance date of May 18, 2022. (IHO Ex. I).

Department of Education (“DOE”) Position The DOE presented documentary evidence only at the hearing. The DOE argued that the parent failed to present evidence as to how the student’s specific learning disabilities are being remediated at the private school. The DOE also argued that the record did not support the need for the SLT evaluation; that compensatory services are not warranted, and that the compensatory services requested do not address student’s specific issues. (Tr. pp. 140-142).

Parent’s Position The parent is seeking reimbursement for tuition at the private school for the 2021/2022 school year, compensatory services in the form of funding for the private school’s summer program, for the Summer of 2022, reimbursement for the cost of the neuropsychological and Speech Language Therapy (“SLT”) evaluations, and an order for an independent AT evaluation. (Tr. p. 136).

Evidence at Hearing The student attended public schools through December of her REDACTED grade year (2020-2021 school year. (Tr. pp. 86-87, 92). She was diagnosed with ADHD and dyslexia and was given an IEP in elementary school and placed in Integrated classes. (Tr. pp. 87-88). During middle school, she had an IEP, but continued to struggle with reading; and experienced emotional distress. Her struggles continued during high school. (Tr. pp. 88-89).

A psychoeducational evaluation was performed by the DOE on November 17, 2017, during the student’s REDACTED grade year. The student was attending Integrated Co-Taught Classrooms for core academic subjects. Her teachers reported that she was often disorganized and struggled to pay attention in the classroom. The student’s reading comprehension and math word problem abilities were in the average range; however her scores for pseudoword reading, and word reading were very low. (Par. Ex. B).

An IEP was developed for the student on October 11, 2019, during the student’s REDACTED grade year. It was reported that her attendance was good (98%). She struggled with attention, comprehension (citing evidence from text, determining a theme or central idea, analyzing characters) and with written expression. Some difficulty was also noted math. Progress was noted in the student’s self-confidence, and it was reported that she had made good connections with her peers and teachers. It was reported that the student was reading on a fifth grade level and performing math at a seventh grade level. She was classified with a Learning Disability. It was recommended that she receive Integrated Co-Teaching (“ICT”) Services for her core academic subjects, and group counseling once each week. (Par. Ex. C-10).

The student was in her mother’s custody during the 2019/2020 school year; and the father did not present evidence regarding her grades. (Tr. p. 98). He believed that she was having difficulty with grades and attendance. (Tr. p. 99). An attendance record indicates that the student attended 39 days during the 2020/2021 school year and 94 days during the 2019/2020 school year. (Par. Ex. F).

Another IEP meeting was held on October 9, 2020. It was again reported that the student was reading on a fifth grade level and performing math at a seventh grade level. Progress was noted in her ability to cite information from text; however her other struggles in ELA and math continued. The student was reportedly getting along well with peers, and performing well in group counseling sessions. No change was recommended to her special education program. (Par. Ex. D).

The parents removed her from the public school and enrolled her in a private on-line school in December 2020. During this time period, the student’s mother had physical custody of the student, and she resided with her in [REDACTED]. In May 2021, she was admitted to a [REDACTED] program for two months, due to [REDACTED]. The father did not recall communications with the student’s school regarding the student’s removal from the school and subsequent placement in the [REDACTED] program. (Tr. pp. 90-91; 101-102). Correspondence between the father and the school indicates that in December 2020 the student was removed from the New York City School System. It appears that the parent indicated an intent to home school the student. (Par. Ex. E at 4-5). On May 31, 2021, the parent requested to re-enroll the student in her public high school for a summer program. (Par. Ex. E-4). The student was re-admitted to the high school on June 15, 2021. (Par. Ex. E-1).

The student’s father obtained custody of the student in the Summer of 2021. It was during that time period that he enrolled her at the private school. (Tr. p. 91).

On July 19, 2021, the parent wrote to the CSE requesting independent evaluations, as follows: a neuropsychological evaluation at the rate of $6,000; SLT evaluation at the rate of $2,100 and an AT evaluation at the rate of $2,500.00

On August 25, 2021, the parent wrote to the CSE stating his disagreement with the student’s program and providing notice of his intention to enroll the student at the private school and seek funding. (Par. Ex. G).

On August 30, 2021, the parent signed a contract agreeing to pay $77,200 for the student’s tuition at the private school for the 2021-2022 school year. (Par. Ex. M). The parent paid the tuition in full. (Tr. p. 95; Par. Ex. N).

The parent testified that since attending the private school, the student’s attendance has improved and she has made new friends. She is earning grades of B’s and C’s. (Tr. p. 95).

An independent Speech/Language evaluation was performed, via teleconference, on September 1, 2021 by a licensed speech/language pathologist (hereinafter the”SLT evaluator”). The student had average range skills in speech and language; however she had below average skills in pragmatics (social skills); in reading comprehension and structured writing skills. All of her linguistic skills, including higher order level thinking, were within the average range. (Par. Ex. H; Tr. p. 33). Significant struggles were noted in decoding, and encoding, which impacted her reading comprehension skills. (Tr. pp. 35-36).

It was recommended that she receive multisensory reading instruction by a reading specialist (Orton Gillingham (“OG”), Linda mood Bell, Wilson); and that she read independently daily. A comprehensive assistive technology evaluation was also recommended. (Par. Ex. H at 20-21). The parent was billed $2,100.00 for the SLT evaluation, and the bill was paid. (Par. Ex. Q).

The SLT evaluator testified that the student’s 2019/2020 and 2020/2021 IEPs were deficient, to the extent that they did not provide decoding/literacy support, and due to the lack of an AT evaluation. (Tr. pp. 46-48).

A neuropsychological evaluation was performed in September 2021. The neuropsychologist diagnosed the student with Anxiety Disorder and Depressive Disorder, and Specific Learning Disabilities in Reading (partially remediated), a Specific Learning Disorder with Impairment in Writing and Mathematics, and Attention Deficit/Hyperactivity (“ADHD”). The neuropsychologist noted that the student had a history of [REDACTED] and [REDACTED]; and was admitted to a [REDACTED] program. It was noted that the student was placed in REDACTED during the current school year, due to diminished academic engagement over the past year or so.

It was recommended that she placed in a school that provides access to academic instruction, hands-on learning and social emotional development. He felt that the private school is meeting her unique learning and social/emotional needs. He also recommended that she receive individual academic support during school, including a structured approach for reading instruction, like Orton-Gillingham, Wilson or Linda mood Bell. AT was recommended, to assist the student with decoding and organizing and expressing her ideas. (Par. Ex. I). The parent was charged $6,000.00 for the evaluation. (Tr. p. 73). Proof of payment for the neuropsychological evaluation was not provided at the hearing.

The neuropsychologist testified that the student was previously diagnosed with dyslexia. (Tr. p. 55). She had average intellectual functioning, with notable strengths with her fluid reasoning. Academically, she exhibited strength in reading comprehension, with some lingering signs of dyslexia, which is partially remediated. She continued to struggle with writing and math. (Tr. p. 56). He estimated her math ability to be at a fifth grade level; and testified that her ability to write was significantly weaker than same age peers. (Tr. pp. 57-59). On a test of reading, with unlimited time, she performed at ninth grade equivalent. He testified that she had made some progress in her reading skills, and that they are not as impaired as they were in the past, although she exhibited remnants of her dyslexia in her inability to sound out unfamiliar words and with spelling. (Tr. pp. 73-74).

He recommended placement in a therapeutic setting, counseling (individual and group) in addition to one-to-one support for reading, math and written expression. (Tr. p. 61) He testified that she should receive individual academic support two to three times per week. (Tr. p. 75).

The clinical director of the private school testified that she has a doctorate in clinical psychology and is a licensed clinical psychologist. She oversees the clinical program at the school, including supervising clinical staff. (Tr. p. 113). The private school is a small, therapeutic college preparation program for students with complex diagnostic profiles. There are approximately 80 students at the school ranging in age from 13 to 18. (Tr. p. 114). Core curriculum teachers have master’s degrees in education or content area, and certification in any state; as well as prior teaching experience. The counseling center is staffed by four full-time licensed psychologists and a predoctoral intern. (Tr. p. 115). Classes average five to ten students, and are capped at twelve students. Staff receive ongoing professional development. (Tr. p. 116).

The school provides an after school study period for more intensive academic support, including one-to-one support. The school employs a full-time learning specialist who is available to meet with students, and regularly meets with faculty members. (Tr. p. 117). The learning specialist is certified in special education. (Tr. p. 133).

• • Every student is assigned to an advisor within an advising group of two advisors and eight advisees, which meets three times each day. During these meetings, the students receive support for executive functioning, goal setting, and coping skills. (Tr. p. 118).
• • The student has access to the counseling center on demand, which she uses when needed. She signed up for a student support group which meets each week, and focuses on positive social skills. (Tr. pp. 118, 122).
• • The school meets the student’s academic needs through personalized scheduling. She is placed in classes based upon her skills; and in electives based upon her interests. (Tr. p. 121). She is taking four core classes (math, science English and history) and two electives. (Tr. p. 127). She receives audio books and specialized software, one-to-one support from teachers and additional support from the learning specialist. (Tr. pp. 122, 134). The student has progressed and stabilized clinically. Academically, she is passing all of her classes, and achieving grades of A’s, B’s and C’s. She is active and participating in her classes; and is performing in theater, in front of groups of students. (Tr. pp. 123, 132).

In addition to its 10 month program, the school offers a July program for additional support, and to provide students who are behind, the opportunity to earn more credits. Students can take three classes, and receive full clinical and academic support. (Tr. pp 124-125). The clinical director testified that this would also be beneficial clinically, in light of the student’s recent history of [REDACTED] and [REDACTED]. (Tr pp. 125-126). The cost of the program is 10% of the tuition, or in the range of seven to eight thousand dollars. (Tr.p. 126).

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 the student’s circumstances. Id. at 1002. The school district is not required to provide "every special service necessary to maximize the student's potential" Application of a student with a Disability, Appeal No, 20-096. citing (Mr. P v. W. Hartford Bd. of Educ., 885 F.3d 735, 756 [2d Cir. 2018], cert. denied sub nom., 139 S. Ct. 322 [2018]).

2019-2020; 2020/2021 School Years The record indicates that for the 2019-2020 and 2020-20121 school years, the student was offered ICT classes for core academic subjects and counseling. The student was frequently absent from school during the 2019/2020 school year, and was in fact withdrawn from the public schools from December 2020 through June 2021 school years. Her grades for both school years are unknown. The mother, who had physical custody of the student during both school years, did not testify, Clearly, there were significant social/emotional factors impacting the student; but it is unknown to what extent these were communicated to the school district. According to the neuropsychologist who evaluated her, the student fell behind in school, by one grade, due to limited academic engagement.

There is no basis in the record for me to find that there was a denial of FAPE during these two school years which would warrant the award of compensatory education which is requested here. Although the program provided by the school district did not specifically address the student’s reading deficit, she did receive special education support for academics; and her reading difficulty was partially remediated. Compensatory awards should place children in the position they would have been in but for the violation of the Act. See Application of a Student with a Disability. No. 18-010. The specific compensatory award requested here does not address the deficit in reading instruction which was noted by the parent’s expert. Rather it addresses the gap in the student’s achievement caused by her absence from school.

While I find that the Summer Program at the private school will benefit the student academically and emotionally, there is no basis for me to order the DOE to fund it as a compensatory service. For the foregoing reasons, the parent’s request for funding for the private school Summer Program, for the Summer of 2022, as a compensatory remedy, is denied.

2021-2022 School Year

I find that the DOE failed to meet its burden of proving the appropriateness of its recommendations and programs for the 2021/2022 school year. The DOE failed to present any evidence to support its recommendations. The last IEP in evidence, dated October 2020, recommends ICT classes and one period per week of counseling, which was insufficient to support the student’s academic needs, and her intensive therapeutic needs during 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).

I find that that the parent demonstrated that the program at the private school was specially designed to meet the student’s unique needs. The school provides the student with small classes, counseling as needed, access to a learning specialist, one-to-support from teachers, and technology to support her learning. Although the program does not provide the specific multisensory approach to reading prescribed in the independent evaluations; the record indicates that the private school is meeting the student’s emotional and academic needs, and that she is progressing in both areas.

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 student was in urgent need of a therapeutic placement, due to her history of [REDACTED] and [REDACTED]. The parent provided 10 day notice of his intention to unilaterally place the student and seek funding.

For the reasons set forth above, I find that the parent is entitled to reimbursed for the student’s tuition at the private school for the 2021-2022 school year, in the amount of $77,200.

Evaluations 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 DOE neither commenced a hearing to demonstrate the appropriateness of its evaluation nor ensured that the requested independent evaluations were provided, after they were requested by the parent. I find that both independent evaluations obtained by the parent were appropriate in light of the student’s history, and that the parent should be reimbursed for those evaluations. I also find that the requested AT evaluation is appropriate, and that the student is currently benefiting from the AT provided at the private school.

For all of the foregoing reasons, it is hereby ordered as follows:

• • The DOE shall, within 20 days of this order, reimburse the parent $77,200.00 on account of the tuition at the private school for the 2021-2022 school year;
• • The DOE shall, within 20 days of this order, reimburse the parent $2,100 on account of the independent speech/language evaluation;
• • The DOE shall reimburse the parent $6,000. on account of the independent neuropsychological evaluation, upon presentation of proof of payment thereof;
• • The DOE shall fund an independent AT evaluation of the student at the rate of $2,500.

Dated: April 30, 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

Department Of Education

01/03/2022

Due Process Complaint (WITHDRAWN)

NA

10/09/2020

Individualized Education Program

20

10/13/2020

Prior Written Notice

4

09/25/2020

Notice of IEP Meeting

3

11/20/2017

Psychoeducational Evaluation

4

10/05/2017

Student Vocational Report

1

10/11/2019

Individualized Education Program

21

10/17/2019

Prior Written Notice

4

06/16/2020

Special Education Remote Learning Plan

3

10/30/2018

Individualized Education program

21

10/30/2018

Prior Written Notice

4

10/23/2018

Teacher Report

2

09/07/2018

Student Level1 Vocational Report

1

Impartial Hearing Officer Exhibits

• • Orders of Extension, various dates 2 pp.

Parent’s Exhibits

REDACTED