New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACTS & DECISION

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date

[REDACTED] Attorney PARENT 06/27/22 (V)

[REDACTED] DOE Representative DOE 06/27/22(V)

[REDACTED] Attorney PARENT 07/26/22 (V)

[REDACTED] DOE Representative DOE 07/26/22 (V)

[REDACTED] Attorney PARENT 10/07/22 (V)

[REDACTED] DOE Representative DOE 10/07/22 (V)

[REDACTED] Attorney PARENT 11/18/22 (V)

[REDACTED] DOE Representative DOE 11/18/22 (V)

[REDACTED] Attorney PARENT 01/11/23 (V)

[REDACTED] Parent PARENT 01/11/23 (V)

[REDACTED] DOE Representative DOE 01/11/23 (V)

DOCUMENTATION ENTERED INTO RECORD

C. Number/Letter Title Dated For # of Pages A Demand for Due 05/18/22 PARENT 07 Process B Individualized 05/20/21 PARENT 15 Education Program Letter from Parent to 06/24/21 PARENT CSE 02 pages

D. Letter from Parent to 08/16/21 PARENT CSE 04 pages

E. Neuropsychological 01/25/18 PARENT 20 Evaluation F Auditory Processing 05/09/18 PARENT 17 Evaluation

G. 2021/2022 Schedule, N/A PARENT [REDACTED] Incorporated 01 pages

H. Progress Report, N/A PARENT [REDACTED] Incorporated Fall 04 pages

I. Progress Report, N/A PARENT [REDACTED] Incorporated Spring 04 pages

J. 2021/2022 Attendance N/A PARENT Record, [REDACTED] Center, Incorporated 01 pages

K. Tuition Contract, 09/01/21 PARENT [REDACTED] 02 pages

L. Affidavit of Payment 11/17/22 PARENT 01 pages

M. Tax Return 05/15/20 PARENT N Affirmation of 01/05/23 PARENT 15 2019 03 pages

[REDACTED]

O Affirmation of 01/05/23 PARENT 04

[REDACTED]

1 IEP Meeting Notice 05/11/21 DOE 03

2 IEP 05/20/21 DOE 19

3 Prior Notice Package 08/24/21 DOE 11

4 Progress Reports N/A DOE 09

On June 13, 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 eleven(11) 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 May 19, 2022. Impartial hearings were held on June 27, 2022, July 26, 2022, October 7, 2022, November 18, 2022 and January 11, 2023. A list of the documents taken into evidence is annexed to this decision.

BACKGROUND

On or about May 20, 2021, a CSE meeting was held for the student. The CSE recommended an ICT program. The Parents allege that the student's previous Individualized Education Program ("IEP"), 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 years. (Id.) The Parents allege that the CSE failed to conduct a proper review for the student and make appropriate recommendations for his educational planning. At the impartial hearing, the Parent seeks the following relief:

• Tuition funding and or reimbursement for the student's attendance at the private school for the 2021-2022 school years.

THE DOE'S CASE

The DOE did not call any witnesses to testify on its behalf and submitted four (4) 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 DOE failed to cross examine any of the two affiants presented by the Parent. (T-34)

The Parent also conducted a psychological and cognitive assessment report on January 25, 218. The report indicates as follows:

"REDACTED meets diagnostic criteria for a Speech Sound Disorder (315.39; F80.0). REDACTED performance on tasks of attention and executive functioning were also quite variable. Across both assessment days, evidence of inattention and impulsivity were present. REDACTED fidgeted, had trouble staying in his seat, needed frequent breaks and re-direction to task, grabbed at materials, and was easily distractible. Though his parents did not report many symptoms of inattention or hyperactivity, these symptoms were clearly evident in the one-on-one testing environment and his teacher reported significant difficulty with both distractibility and hyperactivity; as such, he meets criteria for Attention-Deficit/ Hyperactivity Disorder (ADHD), Combined Presentation (314.01, F90.2). Furthermore, as seen in many children with ADHD, REDACTED exhibits poor emotional regulation. His frustration tolerance was low and he required significant encouragement to persist through tasks. He also struggles with other aspects of emotional regulation, particularly when he is feeling anxious or worried about something. He had difficulty separating from his mother, was perfectionistic, and liked things to be a specific way. While REDACTED does not meet full criteria for an anxiety disorder at this time, his symptoms are best captured under Unspecified Anxiety Disorder (300.00; F41.9) and his symptoms should continue to be monitored over time. Lastly, social difficulties were another prominent feature of his presentation. REDACTED history and presentation are reflective of some behaviors observed in children with autism spectrum disorder, such as intense interests, rigidity, and difficulty reading social cues and developing friendships. However, for REDACTED, his social weaknesses are predominantly a result of the combination of inattention to social cues, hyperactivity and impulsivity secondary to his ADHD, rigidity that is often seen in children with anxiety, and communication difficulties due to his language disorder." (E)

THE PARENT'S CASE

The Parent had (2) witnesses testify on their behalf, who testified on direct testimony via affidavit pursuant to 8 NYCRR 200.5[j][3][xii][f]. On the hearing date, the DOE crossed one of the two affiants. The Parent also submitted (16) 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 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 to be credible and uncontroverted in this case. I find the parent's documentary evidence 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, 401 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, 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 at 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 2021-2022 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, 522 [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])

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

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.

The student's lengthy and detailed neuropsychological submitted by the Parent, was undisputed by the DOE. (E)

The Parents evidence shows that the student's unilateral placement school provides individualized instruction and the students has progressed during his time there as per the direct testimony via affidavit by the Language Curriculum Coordinator, and the Director of Related Services, REDACTED. (N) 1. I am employed at the REDACTED, Inc. ("REDACTED"), where I have worked since September 2017. At REDACTED, I serve as a speech-language pathologist, providing students with individual and group therapy treatment. I also serve as the school's Language Curriculum Coordinator, and the Director of Related Services. My duties and responsibilities at REDACTED have been similar since September 2017. 2. I am familiar with REDACTED (D.O.B. REDACTED), a student at our program during the 21-22 SY. I first met REDACTED during the first week of attendance at REDACTED in September 2017. I am familiar with the programming REDACTED received at REDACTED during the 21-22 SY based on my regular communication and collaboration with his teachers and therapists, review of his work, and observation of him in class, at recess, and during the lunch period. 3. REDACTED has been classified by the Board of Education as a student with an Other Health Impairment. He has been diagnosed with Attention-Deficit/Hyperactivity Disorder (ADHD) and anxiety. (See Ex. B-3). 4. REDACTED initially was admitted to REDACTED because his learning profile could be supported by the type of instruction we provide, and because we had an available spot for him with an appropriate peer group for him. 5. At the beginning of the 21-22 SY, REDACTED presented with relatively superior skills in expressive and receptive language. However, he was challenged by poor skills in the areas of pragmatics, executive functioning, and problem-solving. In addition, REDACTED presented with rigid thinking and minimal affect, and he had difficulty with transitions and change. Moreover. REDACTED had a hard time following directions.

6. REDACTED also presented with poor social skills. He had difficulty establishing peer relationships and considering the perspectives of others.

7. When he became aware that his thought patterns were idiosyncratic to him, REDACTED would become anxious, often acting silly or making awkward or unrelated comments which would lead to decreased social engagement. REDACTED awkward behaviors set him apart from his peers. In addition, REDACTED difficulty with perspective taking challenged him academically insofar as his interpretations of written materials were unusual.

8. REDACTED executive function challenges included difficulty with initiating and completing tasks and trouble following conversations. REDACTED also had a hard time remembering all of the steps in a multi-step instruction. He struggled to remember names. His executive functioning delays also impacted his emotional self-regulation, nonverbal working memory, plam1ing, and problem-solving.

9. REDACTED could not grasp the concept of guidelines for group activities or discussion. For example, during recess periods when the group decided on activities, REDACTED tried to dictate his ideas of how the game should be played. During class discussions. REDACTED would bring in tangential information or interrupt others, both teachers and students, with his own thoughts.

10. Teachers reported that REDACTED was very anxious. If corrected for any type of mistake, REDACTED would become red faced, throw his hands up in the air, and shout out a phrase like, --okay, okay okay!" He had no pragmatic problem-solving abilities and lacked the ability to explain and troubleshoot a problem with his teacher. His anxious tendencies also were demonstrated by his self-talk, when he described aloud the process of completing his tasks in a voice which was loud enough to be disruptive.

11. REDACTED was often silly, generally without an apparent reason or precedent. He giggled aloud, made inane facial gestures, and told witless jokes. Asked to stop by his teachers or peers, REDACTED often would repeat the behaviors multiple times.

12. REDACTED did not have age-appropriate meta cognitive facilities. He had great difficulty reflecting on his ways of thinking and he did not know when and how to use particular strategies for problem-solving. These deficits affected REDACTED interactions with his teachers and classmates as he could not use his words to explain his reactions or idiosyncratic behaviors.

13. REDACTED pragmatic/social communication challenges were marked by inflexible thinking, indifference to non-verbal communication, and inability to express his emotions adequately. He had difficulty with communicative intentions (requesting or conveying information/action, expressing attitude/emotions, and regulating social interactions).

REDACTED also lacked solid conversational abilities (maintaining attention and focus, establishing and maintaining topic, presupposition, tum-taking, using politeness markers, and asking for clarification and/or repetition when needed). REDACTED was incapable of understanding idioms, sarcasm, or jokes, which further distanced him from his peers.

14. In a similar respect, REDACTED had difficulty with verbal reasoning skills. He interpreted information literally and failed to understand any implied meaning and/or the use of any idioms. He could associate pictures, objects, and concepts that belonged together but was unable to explain or clarify the association. REDACTED struggled to complete independent work and/or misinterpreted his assignments. Often, the reason he failed to complete assignments in a timely fashion was because he needed for his writing to be perfect in his eyes (and he had difficulty with fine motor skills). REDACTED often wrote a response, only to erase it over and over again until he felt it was perfect.

For the 21-22 SY, REDACTED was placed in a cohort group of 6 students, which broke down into smaller groupings for individual subjects, based on the students' respective abilities. REDACTED classmates all are within 2 chronological years of each other in age and had similar learning challenges.

REDACTED teachers used The Orton-Gillingham Approach, direct and systematic instruction, Verbalizing & Visualizing®, behavior modification techniques, multi-modality input (visual/auditory/tactile), review and repetition, incremental teaching, scaffolding, mnemonics, and feedback, as well as individual instruction to address his academic needs.

We successfully implemented The Orton-Gillingham Approach for REDACTED reading courses in both English and Hebrew, with lessons and materials provided at his skill level. This approach allowed REDACTED to use multiple sources of intelligence to master challenging material and information. Instruction was paced to accommodate REDACTED abilities, with the introduction of new materials geared to take into consideration his individual strengths and difficulties.

In addition to his small, supportive classes, REDACTED had individualized strategies successfully implemented throughout his school day to address his attention and functional challenges. REDACTED had an individualized behavior plan. He also had an individualized sensory diet as well as quick sensory input, designed to support his ability to stay regulated and to maintain attention and focus.

REDACTED designed REDACTED personalized behavior plan, in conjunction with REDACTED classroom teachers. This plan was implemented throughout REDACTED school day during the 21-22 SY to address his behavioral and emotional regulation challenges. Elements of his plan included the use of Zones of Regulation to increase REDACTED metacognition of his behaviors/feelings, behavior charts to help REDACTED identify his emotions, a daily schedule and classroom reminders to reduce transitioning challenges, an alert system to keep REDACTED focused, and positive feedback for appropriate behaviors. In addition, REDACTED had a token economy and positive behavior support system for his social-emotional needs.

REDACTED designed, monitored, and updated REDACTED individualized sensory diet and quick input plan. The sensory diet included a variety of exercises to help REDACTED improve his proprioceptive awareness, and which provided him with vestibular input. The exercises were designed to improve core strength, fine motor strength and facility, balance, and coordination. Quick input was provided to REDACTED to further support his ability to stay regulated and maintain attention. The quick input included exercises for proprioceptive input to help with self regulation and vestibular input for reflex integration, as well as exercises to promote coordination and reduce tactile-seeking behavior, and deep pressure massaging to provide proprioceptive input.

REDACTED behavior plan, sensory diet and provision of quick input, and his small classes were effective during the 21-22 SY in helping REDACTED increase his ability to remain focused and regulated and to participate in learning for longer periods of time.

REDACTED also provided REDACTED with a personalized writing program, based on his individual presenting challenges including poor thumb wrap and poor handwriting. REDACTED developed this program, which his classroom teacher and/or paraprofessional implemented with him. REDACTED also monitored REDACTED writing program, updating it as needed.

In my professional opinion, REDACTED was an appropriate educational placement for REDACTED for the 21-22 SY because our program provided him with the differentiated instruction and individualized social/emotional, behavioral, and sensory/motor supports that he needed, and which enabled him to progress meaningfully. He benefited from a personalized sensory diet which addressed the deficits contributing to his visual, sensory, attention, and focus struggles. His educational program at REDACTED was hierarchically appropriate for him because programming started at his presenting level and supported him as he developed his skills sequentially, building on his repertoire of targets as he mastered them. Importantly, REDACTED had a sense of inclusion in our program, helping to improve his sense of self.

REDACTED made important gains throughout the 21-22 SY in all subject areas and in all of his fundamental academic skills. Due to the instruction and support provided, he progressed academically, socially, and behaviorally. In addition, REDACTED focus and attention improved, making him more available for learning. REDACTED critical thinking increased, and he was better able to see connections and make associations. REDACTED also demonstrated growth in his social skills and functional skills.

Throughout the school year, REDACTED parents proved active participants in REDACTED education. We spoke with REDACTED frequently, and the REDACTED always did what they could to support REDACTED instruction.

An IEP meeting was held Thursday, May 20, 2021 for REDACTED. Attending the meeting were REDACTED, M.S. Ed, acting as the teacher representing the NYCDOE's District 7, myself representing REDACTED, and REDACTED mother, REDACTED.

There was no school psychologist in attendance to my memory. Of concern was that REDACTED has been diagnosed with ADHD and anxiety which inhibit him from performing appropriately in the classroom and in the public domain.

REDACTED and I requested that consideration be given to placing REDACTED in a smaller class size than the Integrated Co-Teaching Services progran1 (''ICT'") offered by the NYCDOE. The academic social and emotional gains that REDACTED had achieved to date had been the result of his small class size and direct, explicit instruction using The Orton Gillingham methodology, which he had received at REDACTED. REDACTED would not be able to function in a classroom as large as the NYCDOE's ICT. The request was denied.

At the time of the meeting, there was no discussion of academic or therapeutic goals, although both I and REDACTED and I were available to discuss those goals.

The IEP meeting, as previously noted, was conducted on May 20, 2021. The evaluation used to determine REDACTED academic, functional and social/emotional abilities from which the formulation of IEP mandates were formulated was administered in January 2018. (See Ex. B-1; see also Ex. E). REDACTED was more than four months overdue for a triennial evaluation.

In the paragraph titled EFFECT OF STUDENT NEEDS ON INVOLVEMENT AND PROGRESS IN THE GENERAL EDUCATION CURRICULUM within the NYCDOE's IEP. it states: "The student is able to function full time in the Integrated Co-Teaching academic classroom setting with the support of the aforementioned resources." (See Ex. B- 3). REDACTED had been attending REDACTED since September 2016. At REDACTED, he had been in classes with no more than 8 students, where his classmates all had IEPs. In addition, at REDACTED was instructed by teachers trained in The Orton Gillingham Approach. As such, the NYCDOE's statement was highly presumptive. It is my professional opinion that the NYCDOE's statement also is inaccurate, as REDACTED would not have been able to focus, attend, or learn in an ICT classroom setting for the 21-22 SY, regardless of any supports. REDACTED was well known to the NYCDOE and had diagnoses of both ADHD and Anxiety Disorder. lt would have been impossible for REDACTED to function in a classroom that was approximately 4 times larger than any class he had attended in the 5 school years prior to the 21-22 SY.

In the Paragraph titled STUDENT NEEDS RELATED TO SPECIAL FACTORS, the question is asked as to whether the student needs strategies including positive behavior interventions, support and other strategies to address behaviors the student's learning and the learning of others?" the box saying "NO" was checked off. (See Ex. B-4). Throughout his attendance at REDACTED always had a behavior plan in place for him. REDACTED continued to require behavioral supports.

Moreover, the goals included in the NYCDOE's IEP would not have addressed REDACTED individual needs. For example, the Writing goal states: "In one year REDACTED will improve writing skills by providing guided support to develop and strengthen writing as need[ed] by planning, revising, and editing with the use of [a] graphic organizer." (See Ex. B-5). REDACTED had these skills in place. His issue with writing, as noted previously, related more to his anxiety. Because he needed to asce1tain that each letter was fom1ed perfectly, REDACTED continually erased each word that he wrote and then rewrote it. As a result, he was often unable to complete assignments in a timely fashion.

In a similar fashion, one of the NYCDOE's IEP goals for Reading states: "In one year, after silently reading a passage in content area, REDACTED will paraphrase/summarize what was read in written form with fading verbal prompts with the use of a graphic organizer." (See Ex. B-6). REDACTED already was capable of doing that at the time of the IEP meeting.

One of the NYCDOE'S OT goals seeks to address an issue that REDACTED did not have. The goal states "In one year, REDACTED will improve his occupational therapy skills by improving the ability to integrate sensory input in order to increase success with tasks in the classroom/therapy environments. He will tolerate tactile input and improve attention toward a task." (See Ex. B-6 B-7). At the time of the IEP being written, REDACTED tolerated tactile input. In fact, he sought out tactile input.

Of all the goals listed in the IEP, only the OT goals provide the information about the professional responsible for the execution of the mandated goal. (See Ex. B-5 - B-7).

The students' progress reports submitted into evidence show the students progress at the private school. (H&I)

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 years 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 at the private school for the time the student attended the private school during the 2021-2022 school year; and it is further

ORDERED that the CSE shall forthwith reconvene 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: April 18, 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)