New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACTS & DECISION

Case Number: 224161

NYS Identifier Number 569450

Student's Name: REDACTED

Date of Birth: ["Confidential"]

District: REDACTED

Hearing Requested By: Parent

Dates(s) of Hearing: 06/16/22, 07/27/22, 09/14/22

10/13/22 & 12/09/22

Actual Record Close Date: March 15, 2023

Hearing Officer: Sharifa Milena Nasser

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date

[CONFIDENTIAL] Attorney PARENT 06/16/22 (V)

[CONFIDENTIAL] DOE Representative DOE 06/16/22 (V)

[CONFIDENTIAL] Attorney PARENT 07/27/22 (V)

[CONFIDENTIAL] DOE Representative DOE 07/27/22 (V)

[CONFIDENTIAL] Attorney PARENT 09/14/22 (V)

[CONFIDENTIAL] DOE Representative DOE 09/14/22 (V)

[CONFIDENTIAL] Attorney PARENT 10/13/22 (V)

[CONFIDENTIAL] DOE Representative DOE 10/13/22 (V)

[CONFIDENTIAL] Attorney PARENT 12/09/22 (V)

[CONFIDENTIAL] Mother PARENT 12/09/22 (V)

[CONFIDENTIAL] Witness PARENT 12/09/22 (V) [CONFIDENTIAL] DOE Representative DOE 12/09/22 (V)

DOCUMENTATION ENTERED INTO RECORD

A. Number/Letter Title Dated For # of Pages Due Process Complaint 01/29/22 PARENT 03 pages

B. Parent Letter 08/23/21 PARENT 02 pages

C. Pendency Agreement 11/29/22 PARENT 01 pages

D. '21 to '22 Contract N/A PARENT 05 pages

E. Payment Affidavit 06/15/22 PARENT 01 pages

F. '21/'22 proof of N/A PARENT Payment with Tuition Management Statement 11 pages

G. Federal 1040 Form N/A PARENT 2021 02 pages

H. '21/'22 Schedule N/A PARENT 01 pages

J. I '21/'22 Curriculum N/A PARENT 06 Description Program Description N/A PARENT 01 pages

K. Parent Testimony 11/30/22 PARENT Affidavit 03 pages

L. School Testimony 12/02/22 PARENT Affidavit 08 pages

1. Meeting Notice 04/12/21 DOE 03 pages DOE

2. Student Invitation to N/A DOE 01 IEP meeting DOE

3. Individualized Education 05/07/21 DOE Plan 27 pages DOE

4. School Progress Report N/A DOE 2020/2021 02 pages DOE

5. Occupational Therapy 03/08/21 DOE 02 Report DOE

6. Counseling Report 03/18/21 DOE 02 pages DOE

7. Speech Report N/A DOE 03 pages DOE

8. Prior Written Notice 07/26/21 DOE and School Location Letter 11 pages DOE

On. May 10, 2022, I was appointed as the Impartial Hearing Officer ("IHO") to conduct a hearing pursuant to the Individual with Disabilities in Education Act ("IDEA"), 20 United States Code, Section 1415(f)(1), concerning a dispute involving the special education program of an REDACTED year old student attending a private school and the New York City Department of Education ("DOE") District 21. The Parents filed a Due Process Complaint ("DPC") on or about January 31, 2022. A consolidation request was submitted on behalf of the Parent on May 10, 2022. A decision denying the consolidation request was issued on May 11, 2022. The Impartial hearing was held on December 09, 2022. A list of the documents taken into evidence is annexed to this decision.

BACKGROUND

In. this case, the Parents allege that the student's Individualized Education Program ("IEP") dated May 7, 2021, is procedurally and substantively flawed and woefully inadequate. (A-DPC) Accordingly, the Parents further allege that the student was denied a. "free and appropriate public education" ("FAPE") for the 2021-2022 school year. (Id.) The Parents allege that the CSE failed to conduct a proper review for the student and make appropriate recommendations for his educational planning. The parents allege that the CSE failed to follow the process by which the meeting was conducted and it failed to comply with appropriate CSE procedure and the CSE failed to appropriately review and consider the evaluative data so that the IEP fails to describe the student and his level of need. (A DPC) The DOE recommended a 15:1 special class in a community school. They state that they served the DOE with notice of the student's unilateral placement at a private school on August 23, 2021. (B)

At. the impartial hearing, the Parent seeks the following relief: (a) Tuition reimbursement and/or direct payment of the student's tuition at the private school for the 2021-2022 school year; and (b) Reimburse to the Parent and/or the private school, for the cost of the provision of the student's mandated related services for the 2021-2022 school year;

THE DOE'S CASE

The DOE did not call any witnesses to testify on its behalf and submitted (8) documents in evidence. In sum, substance and relevant part, the testamentary and documentary evidence for and against the DOE's case is incorporated in the decision below.

THE PARENT'S CASE

The Parent had two witnesses testify on their behalf, who testified on direct testimony via affidavit pursuant to 8 NYCRR 200.5[j][3][xii][f]. The DOE crossed both affiants. The Parent also submitted twelve (12) documents in evidence. In sum, substance and relevant part, the testamentary and documentary evidence for and against the Parent's case is incorporated in the decision below.

DOES' DEFAULT

The DOE failed to call any witnesses to testify on its behalf and submitted eight (8) any documents in evidence. The DOE did not submit any evidence to show that they had replied to the Parents 10. day Notice prior to the Parents unilateral placement of the student. The DOE has the burden of production and persuasion at an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of production and persuasion regarding the appropriateness of such placement. (See Educ. Law § 4404[1][c]) Here, the DOE did not proffer any testamentary evidence that it has offered the student a FAPE. (Supra) This amounts to a concession that the agency did not offer the student a FAPE. It would be fundamentally unfair to allow either party to rely solely on the submission of documents in meeting its burden under law, where those documents are filled with double, triple and even unidentified hearsay sources, that cannot be cross examined. While compliance with technical rules of evidence is not required in administrative hearings, under certain circumstances, the receipt of hearsay evidence may be so prejudicial as to have a tendency to deprive a party of fair hearing. (See Strain v. Sarafan, 57 A.D.2d 525, 393 N.Y.S.2d 572, N.Y.A.D. (1977), where the hearsay testimony was of vital importance and should have been subjected to cross-examination by the petitioner…the petitioner was deprived of a meaningful hearing, Dukes v. New York City Housing Authority, 63 A.D.2d 690, 404 N.Y.S.2d 889, N.Y.A.D. (1978), holding that the excessive reliance on hearsay evidence effectively denied petitioner the right to cross-examine adverse witnesses, Claim of Evans, 254 A.D.2d 564, 678 N.Y.S.2d 696, N.Y.A.D. (3 Dept. 1998), (where in an unemployment compensation proceedings, administrative l[2nd PRIVATE SCHOOL INITIALS] judge ('ALJ") properly exercised discretion to exclude hearsay evidence to protect employer's fundamental right of cross-examination, where claimant proffered written hearsay statement, authored by acquaintance of the employer's president, which allegedly indicated that claimant did not resign but was fired, but the acquaintance failed to answer subpoena directing him to testify at hearing, thereby denying employer the opportunity to cross-examine him on the statement, and Alvarado v. State of New York, 110 A.D.2d 583, 488 N.Y.S.2d 177 (1st Dept. 1985), holding that a license suspension hearing against a boxer and his managers was faulty because of a lack of an opportunity "to cross-examine certain witnesses whose reports were introduced into evidence without their testifying, in violation of SAPA Section 306, subd. (3)." (Id. at 585, 488 N.Y.S.2d at 179) The DOE did not present a case-in-chief and did not controvert the documentary evidence submitted by the Parent. (Supra) The credibility of the documentary evidence was not rebutted by either party and the documentary evidence is clearly relevant and material to the issues to be determined. I find the documentary evidence submitted by the parent in this case to be credible and uncontroverted in this case. As noted above, the DOE's failure to present a case at the hearing is a concession that it denied the student a FAPE and that if the Parent meets her burden under Schaffer v. Weast, the Parent is entitled to the proven relief she seeks. This leaves, as the primary issue to be resolved through impartial hearing, what relief and/or compensatory education remedy, if any, is available and appropriate to remediate the denial of a FAPE. (SRO No. 17-033) It is noted that the DOE was required under the due process procedures set forth in New York State law, to address its burdens in the due process hearing context by describing its views, based on a fact-specific inquiry set forth in an evidentiary record, regarding an appropriate relief and/or compensatory education remedy that most reasonably and efficiently could place the student in the position that he would have been but for the denial of a FAPE. (See Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 457 [2d Cir. 2015], cert. denied, 136 S. Ct. 2022 [2016], quoting Reid v. Dist. of Columbia, F.3d 516, 524 [D.C. Cir. 2005] [noting that the "'ultimate award [of compensatory education] must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place'"]) When, as here, the DOE does not present any case at the hearing, the hearing process essentially becomes an "inquest" as to the appropriate relief. The DOE has conceded liability by failing to present a case and meet its burden under the law. New York State law has placed the burden of production and persuasion an impartial hearing on the school district, unlike states which align the burden of production and persuasion consistent with Schaffer v. Weast, 546 U.S. 49, 58-62 [2005} The undersigned finds that the DOE failed to adhere to the requirements of the law, has denied the student in this case a FAPE for the 2021-22 school year and that the Parent may be entitled to the proven relief she has requested.

APPROPRIATENESS OF THE RELIEF SOUGHT

I now turn to the question of whether the DOE should be required to reimburse and/or pay for the private educational services and relief requested for the student, because the services offered by the DOE were inadequate or inappropriate, and the relief sought and services selected by the Parents are appropriate and equitable considerations support the Parent's claim. (Burlington, Florence and Cerra, Supra) The Parent need only demonstrate that the requested services are specially designed to meet the unique needs of the student, supported by such services as are necessary to permit her to benefit from the instruction. (See Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65) Where sought as relief, a private school placement must be "proper under the Act." (See Carter, 510 U.S. at 12, 15 and Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs. (See Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129 and Matrejek, 471 F. Supp. 2d at 419) A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement. (See Carter, 510 U.S. at 14) The private school need not employ certified special education teachers or have its own IEP for the student. (See Carter, 510 U.S. 7; SRO No. 08-085; 08-025; 08-016; 07-097; 07-038; 02-014 and 01-105) Parents also need not show that the placement provides every special service necessary to maximize the student's potential. (See Frank G., 459 F.3d at 364-65) When determining whether the parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits." (See Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 348 F.3d 513, [6th Cir. 2003] [stating "evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"])

State regulations provide in relevant part that "[t]he decision of the impartial hearing officer shall be based solely upon the record of the proceeding before the impartial hearing officer and shall set forth the reasons and the factual basis for the determination. (See 8 NYCRR 200.5[j][5][v])

The party who defaults in concedes only liability and not the amount of "damages." (See CPLR § 3215, First Nat. Bank & Trust Co. v. Classic Collateral Corp., 44 A.D.2d 868, 355 N.Y.S.2d 504 (1974), James v. Powell, 19 N.Y.2d 249, 279 N.Y.S.2d 10, 225 N.E.2d 741 (1967), McClelland v. Climax Hosiery Mills, 252 N.Y. 347, 169 N.E. 605 (1930) The DOE's default constitutes an admission of liability, but not of damages, which remains the Parent's burden to prove. (See Fed. R. Civ. P. 55 & City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114 at 128 [2d Cir. 2011])

The DOE's default herein supports a judgment in favor of the Parent and a finding that the student was denied a FAPE for the 2021-2022 school year.

In sum, substance and relevant part, the testamentary and documentary evidence concerning the appropriateness of the private school is as follows:

The Associate Principal for the Private school testified as follows via affidavit on direct: 5. As the Associate Principal and Educational Director at REDACTED high School, I am responsible for teacher hiring and training, hiring of related service providers, student intake and assessments. I also oversee the curriculum, order materials and provide Professional Development opportunities for our staff.

6. There were 40 students in our school location for the 2021-2022 school year, spanning from ages 14-18. We are housed on one floor in a small, nurturing setting.

7. REDACTED provides all staff, including teachers and related service providers with professional development and training. We have curriculum development, as well. There are workshops and meetings to discuss behavioral techniques, language development, and how to address our students' special education needs. There is professional development prior to the start of the school year and ongoing workshops during the year. In my supervisory role, I meet with all teachers and work with them to develop the curriculum for their classes. We review the common core learning standards to determine student's functional levels and then to determine what skills must be achieved over the course of the year. I work with the teachers to develop the curriculum and fill the holes where a student lacks proficiency. I observe our teachers as well to ensure they are properly implementing curriculum and addressing students' needs.

8. In addition to the professional development provided by the school, I supervise and train all staff members. All staff are therefore trained in special education and implement consistent specialized techniques tailored to our students' needs.

9. I am familiar with REDACTED was a student in our 11th grade class for the 2021-2022 school year (and is currently in 12 grade). Based upon my role as the REDACTED associate th director and REDACTED 11th grade ELA teacher, I am very familiar with his needs and comfortable talking about his program.

10. For the 2021-22 school year, REDACTED was in a small special education class of 7 students, one teacher, and one classroom assistant.

11. In addition to my ELA class, REDACTED also took math with REDACTED who has a Masters Degree in Special Education, American History was taught by REDACTED, who holds a Juris Doctor and has over 10 years of teaching experience. Science was taught by REDACTED who is a certified nutritionist and worked under my guidance. Judaic studies was taught by Rabbi REDACTED who has a Rabbinic certification, and also has a BA in psychology. He was also under my supervision. The class also had a part-time assistant, REDACTED. REDACTED is trained in ABA and works under the supervision of REDACTED who is a certified ABA therapist. She provided additional teacher support in the classroom.

12. The students in the class were all between 15 and 16 years old. They had similar learning needs to REDACTED. The students were classified as learning disabled, speech/language impaired, and other health impairment.

13. More specifically, the students in REDACTED class had difficulty with attention and required redirection and support. In addition, they struggled with speech and language processing issues, as well as delays in executive functioning issues.

14. During the year, students are assessed both formally and informally for reading, writing, and math readiness. In order to obtain a baseline of academic performance for our students, at the start of the 2021-22 school year, we utilized the GORT for reading and language assessments, as well as Regents Competency Test (RTC)assessments in math. The GORT is a standardized reading assessment. We utilize this assessment because it provides critical information in all areas of reading development. Likewise, the RCT helps to assess our student's math strengths and weaknesses so that we know how to directly target their math needs.

15. Although students are placed in classes by similarity of need, they are further divided into more targeted academic groups throughout the day. These groups can contain between 1 and 4 students depending on need and subject.

16. REDACTED is a student who is eager to learn. REDACTED struggles greatly with critical thinking skills and will often perceive situations in black and white. Due to his very literal thought patterns, REDACTED struggles to comprehend nuanced and figurative language. He is a hard worker, but his diagnosis of ADD affects his academic performance. Academically, he was delayed across all content areas and needed a small special education classroom. Like his peers, REDACTED had difficulty with attention and required a smaller setting to ensure that he was focused and had the attention of a teacher to keep him engaged.

17. REDACTED also presents with many characteristics of Autism Spectrum Disorder. As a result, he struggled to relate to his peers and would often misinterpret their words and actions making it hard for him to maintain friendships. REDACTED also struggled with self-regulation and would often need to be removed from the classroom to give him an opportunity to calm down.

18. At REDACTED, we addressed REDACTED overarching special education needs by providing him with a small class throughout the day. We also provided 1:1 support for him to keep him engaged and focused throughout the day as well as at the end of the day in Learning Lab. Learning Lab is a period when students can get one on one support for material that they need help with, for homework help, or to make up missed work. REDACTED needs a lot of teacher support and prompting to focus and actively participate. Due to the small class size, we were able to provide him with direct attention and support. As noted, he has ADD and so he can be easily distracted. He can daydream and be unfocused so the class size is critical to ensure that he is frequently checked in with and prompted to remain on task. In addition, REDACTED finds it difficult to transition from one activity to another or to understand when a teacher is ending a break or down time and starting the lesson. This sometimes caused disruption in the classroom and he required intervention from an adult to help him adjust.

19. Understanding that REDACTED presented with ADD and significant attentional difficulties, the small class size of 7:1:1, as well as the 1:1 support he received, was critical to helping him remain focused and on task in class. It also allowed us to monitor his work and address his specific needs in the moment. Even in the class of 7 he often needed material broken down further than the class lesson, as well as chunking, and scaffolding of information.

20. For ELA, we followed the common core curriculum, but modified it to a level that was appropriate for REDACTED and his classmates. We considered not only the common core learning standards for 11 grade, but also the standards that corresponded with REDACTED's th functional levels. Our goal was to bridge the gap between these two levels by modifying the curriculum and adjusting the scope, sequence, pacing, and delivery of instructional materials.

21. At the start of the 2021-22 school year, the GORT Reading Assessment indicated that although REDACTED is a fluent reader, he has a time processing information when reading to himself. REDACTED had a difficult time formulating ideas and expressing himself when answering comprehension questions. He also struggled with figurative language and inferential comprehension.

22. At the start of the year, REDACTED could decode on an 11th grade reading level, yet his comprehension skills assessed at a 5.7 grade level. The disparity in these skills greatly impacted th REDACTED as although it appeared that he could read at a grade appropriate level, he actually could not comprehend what he was reading. When answering comprehension-based questions, REDACTED could only give very literal answers and needed direct teacher instruction to develop his comprehension skills.

23. For reading, we use a literature-based reading program which focused on novel studies. Over the 2021-22 school year, some of the books we read included The Wave and A Raisin in the Sun. We also completed a unit on Shakespeare plays. Over the course of the year, texts were read together as a class as compared to the typical expectations of an 11 grade high school th class where students would read independently. This was very important for REDACTED as he needed a more individualized, guided approach to read and monitor his comprehension.

24. Over the 2021-22 school year, REDACTED reading goals targeted answering literal comprehension questions, recounting basic details of a story, answering deeper level comprehension questions, and using graphic organizers to organize and retain information.

25. REDACTED made progress in reading during the 2021-2022 school year. We saw him gain important comprehension skills and develop his critical thinking skills. In addition, when he was having difficulty understanding a text, he would ask clarifying questions until he was satisfied with his understanding. This was something he had not done at the beginning of the year. This progress was assessed through both formal and informal assessments, observing him read, taking reading comprehension tests and completing assignments.

26. In writing, at the beginning of the 2021-2022 school year, REDACTED was able to write simple paragraphs using a hook, background and thesis statement to support the body of his essay. REDACTED benefited from graphic organizers, sentence starters to expand his ideas and outlines that broke down the elements of each paragraph into sentences that he could then use to write each paragraph in essay format. At the beginning of the 2021-2022 school year, REDACTED was able to write in essay format, but still struggled with writing paragraphs that were longer than two sentences.

27. Our writing curriculum was also based on the New York State common core standards and working towards the ELA Regents exam that will be taken at the end of 12th grade. Where necessary, we aligned the instruction to meet REDACTED and the rest of his class' unique learning styles and needs. We concentrated on goals to help REDACTED focus on the organization of writing and writing using textual proof of his statements in a persuasive essay. These writing goals included making sure that REDACTED thesis statement was able to support a four paragraph essay that included two body paragraphs. In addition, we helped REDACTED find text based evidence to support his claims from the text, through highlighting techniques and using two different colors for pro and con points of view. Sometimes, we would brainstorm ideas as a class and then on an individual basis with REDACTED and a teacher. This technique made REDACTED feel more secure as he got into the habit of generating ideas and hearing the ideas of others. If REDACTED had a hard time generating a writing piece, we would support him step by step until he got it until we established independence and automaticity in the skills we were learning at a specific point.

28. With this program and our support, REDACTED, made progress in writing. By the end of the year, he was able to write a full persuasive essay that included a topic sentence, details, transition sentences, and a conclusion sentence. He continued to work on elaborating on his ideas and adding more descriptive words to his writing through the use of adjectives and adverbs. We worked together with his speech-language therapist to focus on these written language goals so that we were giving him this support, both in the classroom and out.

29. At the start of the year, we assessed REDACTED's math abilities using the Regents Competency test. His math level was found to be at an 8th grade level at the start of the year. Math is a relative strength for REDACTED. At the beginning of the year, he was able to solve some mathematical calculations without a calculator. He was able to solve algebraic expressions with variables and was able to calculate the midpoint between two points on a number line or coordinate plane. He was able to identify different properties of triangles to solve for a variety of missing information. The class also focused on transformation, coordinate geometry, proportions and right triangles. They have used the sine, cosine, and tangent functions, as well as the Pythagorean Theorem to find missing sides and angles of a right triangle. REDACTED struggled when applying logic and reasoning skills needed to solve mathematical proofs that include finding variables in a shape. He also has difficulty understanding abstract concepts. Breaking down the concepts into small steps and providing direction at a slower pace was helpful to him.

30. After we identified his skills, we planned a curriculum to focus on his math needs. The math curriculum was based on the common core curriculum for Geometry. We modified and broke down the materials into smaller, simpler steps to ensure that he was grasping the materials and concepts. The small class size allowed REDACTED to be easily redirected and refocused and get the attention and help he needed.

31. Over the course of the year, REDACTED improved in math. He ended the year at an 8.5th grade level. He was able to solve for variables and to calculate for missing sides and angles on a triangle but still had to work on his logic and reasoning and had difficulty understanding abstract concepts which will be goals in the future.

32. REDACTED also took American History is a Regents required class, taught over the span of 2 years. During the 2021-2022 school year, REDACTED was in year one of his American History course. In American History, there was considerable overlap in the skills taught during ELA. In American History, REDACTED not only learned the history content, but also how to break down document-based questions and how to write essays.

33. REDACTED also took Chemistry the course emphasizes an in-depth understanding of major concepts rather than memorization of science facts. Students learned about the study of the structure and composition of matter that makes up living things and their environment. They also studied the changes in matter and the mechanisms by which the changes occur. This also included chemical reactions, solutions, and nuclear chemistry. Students studied graphs and charts as well as complete in-class labs.

34. REDACTED was able to handle the parts of the class that involved memorization. He had a more difficult time with understanding processes and the reasons behind the chemical reactions or interpreting graphs. With the use of hands on experiments in the classroom as well as virtual computer demonstrations on a program called Kami, REDACTED was able to understand integrate information, in addition to the memorization of facts more easily. He was able to apply information read and interpret them in relation to the periodic table, with the use of color coding and individualized opportunities for processing information.

35. REDACTED receives the related services of speech-language therapy (3x30) , occupational therapy (3x30), and counseling (2x30). All related services were provided by licensed providers.

36. In speech, REDACTED worked on his expressive language, receptive language, pragmatic language, comprehension skills, writing skills, higher order thinking skills, his impulsivity, and his difficulty focusing. By the end of the school year, REDACTED made progress in his speech and showed improvement in answering literal comprehension questions to passages he has read and listened to. He also showed improvement in identifying new vocabulary words and using them in meaningful sentences. In addition, REDACTED demonstrated improvement in his knowledge of appropriate behaviors and perspective taking skills.

37. In OT, REDACTED focused on addressing his graphomotor skills, visual perceptual skills, sensory processing skills, executive functioning skills, and his behavioral skills. He also worked on increasing his impulse control. By the end of the school year, REDACTED improved the sizing of his letters. REDACTED has further shown improvement in organizing folders in his google drive with support. His ability to focus and attend within the classroom environment has also shown improvement.

38. REDACTED counseling sessions focused on improving his self-awareness, selfadvocacy, self-regulation, and impulsivity. By the end of the school year, REDACTED made progress in advocating for his academic, social, and emotional needs while maintaining respect to those who he interacts with. He displayed an increased maturity, as well as an increased ability to reflect on his own behaviors. In addition, he emphasized a greater desire to expand his social network and showed an increased motivation to gain stronger social skills to develop friendships.

39. Understanding that social development was a key area of deficit for REDACTED there was consistent communication with REDACTED counselor and all of his teachers to help support his social skills in the classroom and allow for carryover of skills addressed in counseling into the classroom. The small size of his class, as well as the overall small school setting, allowed REDACTED to feel comfortable and connected so that he could further develop his peer relationships.

40. REDACTED program includes both secular and religious instruction. Religious instruction included Bible Studies, Talmud, Jewish Law, Jewish Philosophy, Morning Prayer and Afternoon Prayer. The non-secular/religious instruction makes up 19.47% of the week. Secular instruction is 80.53%.

41. I participated in REDACTED May 2021 IEP meeting. At this meeting the CSE recommended a Special Class 15:1 in a community school. I am familiar to with this program offer and based upon REDACTED needs and profile I have significant concerns with this recommendation (which I shared at the IEP meeting). I cannot underscore enough the importance of a 1:1 and small group instruction for REDACTED. Due to REDACTED social/emotional and attentional needs, he required a significant amount of teacher prompting and redirection in order to stay focused and available for learning, even in our small class of 7. Given his struggles, even in our 7:1:1 class, I do not believe he could appropriately manage in a 15:1 class which would be double the size and less adult support REDACTED program.

42. In addition, REDACTED would be unable to handle a large community school setting. Understanding his constellation of attentional and social struggles REDACTED required a tremendous amount of support even in our school of 40. As such, placing REDACTED in a large general education school setting would leave REDACTED completely overwhelmed and dysregulated. He simply could not keep up with the academic and social demands of this setting, which would shatter his already fragile sense of self-esteem.

43. Overall, REDACTED provided an appropriate setting for REDACTED for the 2021-22 school year. The small class and school setting has been critical to his success, as has the full-time special education support. REDACTED is a small school with a warm environment with much support staff. This allows for learning in small groups for math and reading. In turn, REDACTED has made significant progress in all academic and social-emotional areas. (L)

The witness was also cross examined about the portion of instruction that is related to religious instruction. (T 39-47)

When determining whether the parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits." (See Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003]) (emphasis added) This standard is well below those other standards of review in the law such as "beyond a reasonable doubt", "clear and convincing evidence", "preponderance of the evidence", "substantial evidence" or even perhaps "rational basis." The record, as accurately summarized by the parties above and adopted in this decision and order, supports a finding that the decision to place the student at the private school was "reasonable" as an appropriate placement for the student's 2021-2022 school year.

There is nothing in the record that support a finding that the Parent has not cooperated with the DOE.

NOW therefore, it is hereby

ORDERED that the DOE denied the student a FAPE for the 2021-2022 school year and that upon its receipt of reasonably satisfactory proof of services having been rendered, the DOE shall either reimburse the Parent, and/or directly pay for the cost of the student's tuition and related services cost at the private school for the time the student attended the private school during the 2021-2022 school year; (minus the portion of tuition related to religious instruction)and it is further

ORDERED that the CSE shall forthwith reconvene after the completion of the student's evaluations and consider all of the student's evaluations and any other relevant information and produce a new IEP for the student's 2022-2023 school year; and it is further

ORDERED that any of the other relief sought by the Parent not addressed by this "Final Order" is found to be either resolved by the parties, withdrawn by the Parent, outside the scope of the IHO's authority or unsupported by the record.

Sharifa Milena Nasser

DATED: March 23, 2023

Queens, New York Sharifa Milena Nasser - I.H.O.

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. (Rev. 07/09/20)