Impartial Hearing Decision

FINDINGS OF FACTS & DECISION

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date

[REDACTED] Attorney PARENT 08/15/23 (V)

[REDACTED] Advocate PARENT 08/15/22 (V)

[REDACTED] DOE Representative DOE 08/15/22 (V)

[REDACTED] DOE Representative DOE 10/05/22 (V)

[REDACTED] Attorney PARENT 11/09/22 (V)

[REDACTED] Advocate PARENT 11/09/22 (V)

[REDACTED] DOE Representative DOE 11/09/22 (V)

[REDACTED] Attorney PARENT 12/06/22 (V)

[REDACTED] Advocate PARENT 12/06/22 (V)

[REDACTED] DOE Representative DOE 12/06/22 (V)

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

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

[REDACTED] Attorney PARENT 03/09/23 (V)

[REDACTED] Advocate PARENT 03/09/23 (V)

[REDACTED] DOE Representative DOE 03/09/23 (V)

[REDACTED] Attorney PARENT 05/31/23 (V)

[REDACTED] Advocate PARENT 05/31/23 (V)

[REDACTED] DOE Representative DOE 05/31/23 (V)

[REDACTED] Attorney PARENT 06/01/23 (V)

[REDACTED] Advocate PARENT 06/01/23 (V)

[REDACTED] Parent PARENT 06/01/23 (V)

[REDACTED] Interpreter PARENT 06/01/23 (V)

[REDACTED] Witness PARENT 06/01/23 (V)

[REDACTED] Witness PARENT 06/01/23 (V)

[REDACTED] DOE Representative DOE 06/01/23 (V)

DOCUMENTATION ENTERED INTO RECORD

A. Number/Letter Title Dated For # of Pages Parent request for 01/04/20 PARENT Evaluation 01 pages

B. [REDACTED] 2020 N/A PARENT 20 Neuropsychological Evaluation

C. Department of Education 03/01/21 PARENT Psychoeducational Evaluation Report 08 pages

D. Individualized 03/03/21 PARENT 22 Education Program

E. Parent Request for 04/21/21 PARENT Speech and Language Evaluation 01 pages

F. DOE Speech and 06/21/21 PARENT Language Remote Evaluation Report 14 pages

G. IEP 06/24/21 PARENT 22 pages

H. Ten-Day Notice 08/27/21 PARENT 07 pages

I. Amended Ten-Day 09/09/21 PARENT 10 Notice

J. [REDACTED] School 12/12/21 PARENT Enrollment Contract 03 pages

K. [REDACTED] Report 11/2021 PARENT 06 pages

L. [REDACTED] Report 03/2022 PARENT 08 pages

M. [REDACTED] Speech and 05/2022 PARENT Language Progress Report 02 pages

N. IEP 05/31/22 PARENT 16 pages

O. [REDACTED] Report 06/2022 PARENT 07 pages

P. Impartial Hearing Request 06/28/22 PARENT 14 pages

Q. [REDACTED] Enrollment 08/22/22 PARENT 01 Contract

R. Ten-Day Notice 08/24/22 PARENT 08 pages

S. Emails to and from 09/01/22 PARENT 06 Committee on Special Education Regarding Records Request

T. Letter to Committee on 11/04/22 PARENT Special Education 06 pages

U. Amended Impartial 11/08/22 PARENT Hearing Request 16 pages

V. [REDACTED] Report 11/2022 PARENT 04 pages

W. [REDACTED] 2021 to 2022 02/01/23 PARENT 01 Tuition Affidavit

X. [REDACTED] Report 03/2023 PARENT 05 pages

Y. [REDACTED] 2022 to 2023 05/02/23 PARENT 01 Tuition Affidavit

Z. Affidavit of Testimony of 05/22/23 PARENT 09 pages

[REDACTED]

AA Affidavit of Testimony of 05/24/23 PARENT 06

[REDACTED]

BB Affidavit of Testimony of 05/24/23 PARENT 12

[REDACTED]

I Parent Closing Brief 06/16/23 IHO 10

On July 11, 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 a [REDACTED] year old student attending a private school and the New York City Department of Education (“DOE”) District [REDACTED]. The Parents alleged a denial of FAPE for the 2018-2019, 2019-2020, 2021-2021, 2021-2022 and 2022-2023 school years The Parent filed a Due Process Complaint (“DPC”) on or about June 28, 2022. The parent alleges that the DOE generally failed to assess the child in all areas of his suspected disability. The Parents allege that the CSE failed to conduct a proper review for the student and make appropriate recommendations for their educational planning and that the student’s IEP was procedurally and substantively flawed and denied the student a FAPE for the 2018-2019, 2019-2020, 2020-2021, 2021-2022 and 2022-2023 school years.

On or about January 04, 2020, the Parent sent the District a letter requesting the child be evaluated. (Parent’s –“A”) The DOE never responded to Parents request.

The student was diagnosed with a Mixed-Receptive-and Expressive Language Disorder (moderate) and a Specific Learning Disorder in Reading (Severe). (Parent’s Exhibit-“B”)

A written closing statement was submitted by the Parent and the undersigned did not receive a written closing statement from the DOE. (Exhibit IHO-I) At the impartial hearing, the Parent seeks the following relief:

• A finding that the student was denied a FAPE for the 2018-2019, 2019-2020, 2020-2021, 2021-2022 and 2022-2023 school years.

• A finding that the private school was an appropriate placement for the student for the 2021-2022 and 2022-2023 school years.

• Tuition funding/direct payment of the student’s tuition at the private school for the 2021-2022 and 2022-2023 school years; and

• Transportation costs for the two school years.

• Compensatory Education in the form of tuition payment for the 2023-2024 school year.

• Translation services in the Spanish language of all IEP’s and special education documents.

DOES’ DEFAULT

The DOE failed to call any witnesses to testify on its behalf and did not submit 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. (Parent’s H&R)

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 2018-2019, 2019-2020, 2020-2021, 2021-2022 and 2022-2023 school years and that the Parent may be entitled to the proven relief she has requested.

THE PARENT’S CASE

The Parent had (3) witnesses testify on their behalf, who testified on direct and some were also cross examined by the District. The Parent also submitted (28) 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.

DOE DEFAULT

Whereas under the IDEA, the burden of persuasion in an administrative hearing is placed upon the party seeking relief. (See Schaffer v. Weast, 546 U.S. at 59-62) On August 15, 2007, the New York State Legislature amended the Education Law to place the burden of proof upon the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement would continue to have the burden of proof regarding the appropriateness of such placement. (See Educ. Law § 4404[1][c], as amended by Ch. 583 of the Laws of 2007) The amended statute took effect for impartial hearings commenced on or after October 14, 2007. (SRO No. 08-016); and As noted above, the DOE’s failure to present a case at the hearing is a concession that it denied the student a FAPE for the 2018-2019, 2019-2020, 2020-2021, 2021-2022 and 2022-2023 school years 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]. It is not an IHO's responsibility to craft the DOE’s position regarding the primary issue in the case, for the denial of FAPE. 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 and 2022-2023 school years and that the Parent may be entitled to the relief she has requested.

FINDINGS OF FACTS & DECISION

Two purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected. (See 20 U.S.C. § 1400[d][1][A]-[B] and Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982])

A FAPE is offered to a student when (a) the DOE complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. (See Rowley, 458 U.S. at 206-07 and Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]) While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA. (See A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003] and Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007])

Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits. (See 20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008] and Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007] aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008])

An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs (34 C.F.R. § 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals related to those needs (34 C.F.R. § 300.320[a][2]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services. (See 34 C.F.R. § 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; SRO No. 07-018; 06-059; 06-029; 04-046; 02-014; 01-095 and 93-09) Subsequent to its development, an IEP must be properly implemented. (See 8 NYCRR 200.4[e][7] and SRO No. 08-087)

The DOE may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim. (See Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993] and Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]) In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA. (See Burlington, 471 U.S. at 370-71; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007] and Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]) "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE. (See Burlington, 471 U.S. at 370-71; 20 U.S.C. § 1412[a][10][C][ii] and 34 C.F.R. § 300.148)

The New York State Legislature amended the Education Law to place the burden of production and persuasion upon the school district during 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], as amended by Ch. 583 of the Laws of 2007) The amended law took effect for impartial hearings commenced on or after October 14, 2007; therefore, it applies to the instant case. (See SRO No. 08-016)

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 seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate." (See Gagliardo, 489 F.3d at 112 and M.S. v. Bd. of Educ., 231 F.3d 96, 104 [2d Cir. 2000]) "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement….'" (See Gagliardo, 489 F.3d at 112; Frank G. v. Bd. of Educ., 459 F.3d at 364 [2d Cir. 2006] [quoting Rowley, 458 U.S. at 207 and identifying exceptions]) Parents 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"]]) A "private placement is only appropriate if it provides 'education instruction specifically designed to meet the unique needs of a handicapped child.'" (See Gagliardo, 489 F.3d at 115 [emphasis in original], citing Frank G., 459 F.3d at 365 quoting Rowley, 458 U.S. at 188-89)

The IDEA allows that tuition reimbursement may be reduced or denied if parents do not provide “notice” of the unilateral placement either at the most recent CSE meeting prior to removing the child from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense." (See 20 U.S.C. § 1412[a][10][C][iii][I] and 34 C.F.R. § 300.148[d][1]) This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools." (See Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]) Although a reduction in reimbursement is discretionary, courts have upheld the denial of tuition reimbursement in cases where it was shown that parents failed to comply with this statutory provision. (See Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); SRO No. 07-133; 07-120; 07-115; 07-098; 07-079; 07-075; 07-038; 07-032; 06-122; 06-069; 06-057; 06-042; 06-041; 06-035; 05-092 and 04-022)

The final criterion for a reimbursement award is that the parent's claim be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA. (See Burlington, 471 U.S. at 374; M.C. v. Voluntown, 226 F.3d 60, 68 [2d Cir. 2000] and Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required"]) Such considerations "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters." (See Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff'd, 471 U.S. 359 [1985]) With respect to equitable considerations, the IDEA provides that tuition reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, fail to engage with potential placements offered by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. (See 20 U.S.C. § 1412[a][10][C][iii]; Thies v. New York City Bd. of Educ., 2008 WL 344728 [S.D.N.Y. Feb. 4, 2008]; M.V. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181 at *5 [N.D.N.Y. Jan. 2, 2008]; Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 [S.D.N.Y. Nov. 20, 2007]; Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 [S.D.N.Y. 2005], aff'd, 2006 WL 2335140 [2d Cir. Aug. 9, 2006] and Voluntown, 226 F.3d at n.9)

In the absence of evidence demonstrating that petitioners failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, or failed to give proper notice, equitable considerations generally support a claim of tuition reimbursement. (SRO No. 04-049) In sum, substance and relevant part, the testamentary and documentary evidence in this case is as follows:

The Parents witness, [REDACTED] conducted the students neuropsychological and testified via affidavit on direct to the following: 1. The student was diagnosed with a Mixed-Receptive-and Expressive Language Disorder (moderate) and a Specific Learning Disorder in Reading (Severe). 2. It was recommended that [REDACTED] be placed in a specialized school which could offer more individualized or small group instruction with a small student-teacher ratio and a high level of structure within a supportive environment. In addition, she requires language-based instruction provided throughout the day, including daily speech and language therapy. To address her learning difficulties, it was recommended that she receive an evidence-based remediation program targeting phonological awareness and the development of foundational reading and writing skills. Daily math instruction is also required to support weaknesses in solving math word problems and performing calculations. Individual weekly counseling was recommended in order to develop emotional awareness and coping skills to reduce emotional outbursts, as well as social skills training in a group format. 3. Without the recommended language, academic and socioemotional supports, the gap between [REDACTED] cognitive abilities and academic abilities would continue to widen, and low mood and worry related to her academic performance would likely increase putting at further risk of developing anxiety or depression. 4. I am familiar with the [REDACTED] School. I have attended tours of the school and have worked with a number of clients who attended the school. Given the [REDACTED] School’s dedication to supporting children with language disorders and dyslexia, this school would be a good fit for [REDACTED]. The [REDACTED] school also offers multi-sensory instruction throughout the day, in small classrooms, with additional related services of speech and language therapy or counseling for example. (Parent’s Ex.-“BB”)

The parent’s witness was briefly cross examined by the DOE.

The Principal/Director at the private school, [REDACTED], testified on direct via affidavit mas follows on direct examination: The Principal testified as to the students two school years that she attended and her progress made throughout the years. 1. When [REDACTED] began attending [REDACTED], she had trouble with working memory, task monitoring, and attention to task. She required teacher support to retain concepts and vocabulary and participate in class. She lacked automatic recognition of onesyllable words with consonant digraphs, and blends, as well as Silent -e words (which are essential building blocks for [REDACTED] to gain independent reading skills). Therefore, she required small group instruction with direct, sequential, multisensory learning in her classroom/academic learning and even smaller, in her reading remediation. She required concepts and vocabulary to be frontloaded, with looped practice, and the pace of instruction needed to be catered to her rate of learning. 2. Focusing, following directions, and organization for written tasks are also areas of challenge for [REDACTED]. These challenges are readily supported in her small classes because she can get the individual support, attention, redirection and breaks she requires as she can become overwhelmed and anxious. 3. Reading, vocabulary, and word knowledge are also areas of weakness because she has language-based learning disabilities. The specialized language instruction and coordination between her classroom teacher, speech/language teachers, and her reading specialist are essential to her progress. 4. While we typically attend IEP meetings for our students, we did not attend a meeting for [REDACTED] in 2022 as we never received an invite to any meeting from the district. We did receive a request for records and sent the records to the district, but we never received an actual invite to the meeting after our submission of records. 5. Re-enrollment in [REDACTED] is not guaranteed. Each student’s status is reviewed annually. [REDACTED] was readmitted for the 22–23 school year based on the progress she had made and her continuing need for direct, sequential, multi-sensory instruction provided by [REDACTED]. 6. [REDACTED] is currently in the 5th grade at [REDACTED] for the 22–23 school year. 7. [REDACTED] is in a class with 9 students for her science, social studies, ELA, and math for the 22–23 school year. During math, an additional teacher joins the class for a ratio of 2 teachers to 9 students to allow for both small group work and individual support. In ELA, she receives specialized instruction in a small group of 4 and whole class instruction in a group of 9. 8. [REDACTED] is [REDACTED] classroom teacher for the 22–23 school year. She has a bachelor’s degree in philosophy and political science from Marymount Manhattan College, a Masters degree in European Studies (research) (2017), and a Masters in Philosophy of the Social Sciences (2020) both from the London School of Economics and Political Science. 9. For the 22–23 school year, [REDACTED] receives 1:1 remediation four times per weekly for 45 minutes with an Orton-Gillingham Trained Reading Specialist, [REDACTED]. [REDACTED] has a master’s in special education and his NYS certification. He also had additional training in both alphabetic phonics and Orton Gillingham. He has many years’ experiences working with students like [REDACTED]. Together, they are concentrating on strengthening her decoding, encoding, retrieval and retention, comprehension to build her fluency and endurance. This specialized instruction is essential to [REDACTED] ability to gain fluency and get meaning from print. Additionally, [REDACTED] receives Speech/Language services in a small group 2x weekly from [REDACTED] CCC-SLP. She also participates in our social/emotional group and receives counseling on a weekly basis from our school counselor.

10. [REDACTED] program is individualized to meet both her academic and social needs and therefore is appropriate for her. The [REDACTED] School where she is supported in the areas of her learning disabilities in addition to her executive functioning weaknesses. Her 5thgrade program is providing the supports and structure she requires in order to develop more independence and continue to move forward academically.

11. [REDACTED] made meaningful progress in reading since September 2021. While she has strengthened the automaticity of her word recognition and decoding skills, she still needs to gain confidence to integrate the usage of her newly developing skills. Her ability to comprehend what she has read and gain meaning has shown solid growth, more than one grade level since last year. She can now read chapter books independently and talk about what she has read, but because she lacks confidence, she continues to need teacher support to step up to new challenges. She continues to need direct sequential multi-sensory instruction to strengthen her decoding, word recognition, fluency, and vocabulary development as well as her writing skills.

12. [REDACTED] has made noteworthy progress since she began attending [REDACTED]. In fall 2021, she was beginning to track text to find answers and provide a simple paraphrasing when text was read aloud to her to a student. Now, she is analyzing text by utilizing Whquestions (who, what, where, when, why, and how) to delve deeper and beyond the concrete, moving towards abstract critical thinking. Over time, she has slowly but steadily built her confidence and become an active participant in class, volunteering answers and participating in classroom discussion. This is noteworthy as when she first began at [REDACTED] in the fall of 2021, she needed teacher prompting and support to participate.

13. When she started attending [REDACTED] in the fall of 2021, [REDACTED] could add double digit numbers with regrouping and tell time to the 5-minute mark. This school year, she has moved from fractions and decimals to integers (negative numbers, absolute, and opposite value) and is demonstrating increasing comfort with multiplication and division.

However, she needs to gain more confidence in her ability. This was evident when on the formalized testing we completed in March, [REDACTED] skipped many problems that were within her skills set because she was unsure of herself. An ongoing goal is to strengthen her sense of herself as a learner and to help her to gain confidence in her new skills.

14. She has developed stronger language skills (e.g. grammar, vocabulary) allowing for her conversation and academic responses to be clearer and more succinct in nature. She has developed many meaningful friendships and is well liked by peers and teachers. The District briefly cross examined the Parent’s witness.

The parent’s witness was briefly cross examined by the DOE as to the child’s overall educational delays. (T 67-75)

The Parents evidence shows that the student has made academic progress while enrolled in the private school for the 2021-2022 and 2022-2023 school years. The students’ educational records and progress reports are submitted into evidence. (K, M,V,W,X,Y,)

GROSS VIOLATION

A gross violation of the IDEA may result from the denial of, or exclusion from, educational services for a substantial period of time. (See SRO No. 04-074, citing Mrs. C. v. Wheaton, 916 F.2d 69 (2d Cir. 1990), Burr v. Ambach, 863 F.2d 1071 (2d Cir. 1988) and SRO No. 02-047. In Burr, exclusion from educational services for a substantial period of time was defined as “almost two years.” (See SRO No. 02-033 citing Burr “…after a severely disabled student's school was closed, prolonged delays in the administrative proceedings in obtaining a new placement resulted in a complete exclusion from any educational placement for the student for almost two years.”

Here, the DOE’s failed to provide the student a FAPE for the 2018-2019, 2019-2020, 2020-2021,2021-2022 and 2022-2023 school years. As such, I find that the DOE’s failure to afford the student a FAPE constitutes a gross violation of IDEA.

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)

The Parents evidence shows that the student has made academic progress while enrolled in the private school for the 2021-2022 and 2022-2023 school years. The students’ educational records, progress reports and behavioral records are submitted into evidence. (K, M,V,W,X,Y,)

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 and 2022-2023 school years.

COMPENSATORY SERVICES

There is a request for compensatory educational services in this case and an IHO cannot determine the amount of compensatory education that a student requires unless the record provides him with sufficient “insight about the precise types of education services the student needs to progress.” (Mary McLeod Bethune Day Acad. Pub. Charter Sch., 555 F. Supp. 2d 130, 50 IDELR 134 [D.D.C. 2008] citing Branham v. District of Columbia, 427 F.3d 7, 44 IDELR 149 [D.C. Cir. 2005]) Pertinent findings to enable an IHO to tailor the ultimate award to the student’s unique needs should include the nature and severity of the student’s disability, the student’s specialized educational needs, the link between those needs and the services requested, and the student’s current educational abilities. (See Branham v. District of Columbia, 427 F.3d 7, 44 IDELR 149 [D.C. Cir. 2005], see also Mary McLeod Bethune Day Acad. Pub. Charter Sch., 555 F. Supp. 2d 130, 50 IDELR 134 [D.D.C. 2008]) The Parent has the burden of “propos[ing] a well-articulated plan that reflects the student’s current education abilities and needs and is supported by the record.” (See Phillips v. District of Columbia, 2010 WL 3563068, at *6, 55 IDELR 101 [D.D.C. Sept. 13, 2010] quoting Friendship Edison Pub. Charter Sch. Collegiate Campus v. Nesbitt (“Nesbitt II”), 583 F. Supp. 2d 169, 172, 51 IDELR 125 [D.D.C. 2008])

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])

Shaffer decision of the Supreme Court of the United States issued on November 14, 2005, held as follows:

“We hold no more than we must to resolve the case at hand: The burden of proof in an administrative hearing challenging an IEP is properly placed upon the party seeking relief. In this case, that party is Brian, as represented by his parents. But the rule applies with equal effect to school districts: If they seek to challenge an IEP, they will in turn bear the burden of persuasion before an ALJ. The judgment of the United States Court of Appeals for the Fourth Circuit is, therefore affirmed.” (Supra, III, ¶2) (See Schaffer v. Weast, 546 U.S. 49, 58-62 [2005] (emphasis added)

Here, the Parent requests tuition funding for the 2023-2024 school year as a form of compensatory education. I do not find tuition funding for an upcoming school year to be an appropriate form of relief for compensatory education and therefore that request is denied.

There is nothing in the record that supports 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 student’s 2018-2019, 2019-2020, 2021-2021, 2021-2022 and 2022-2023 school years and that upon its receipt of reasonably satisfactory proof of services having been rendered, the DOE shall pay/fund directly for the cost of the student’s tuition and related services, including transportation costs at the private school for the time the student attended the private school during the 2021-2022 and 2022-2023 school years; and it is further ORDERED that within 30 days the CSE shall forthwith reconvene to produce a new IEP for the student that considers all of the student’s available evaluations and any related information and produce a new IEP for the student’s 2023-2024 school year; and it is further ORDERED that DOE shall fund or reimburse the parent for translation services into the Spanish language at a fair market rate of all IEP’s and special education documents for all of the school years of 2018-2019, 2019-2020, 2021-2021, 2021-2022 and 2022-2023. 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: May 15, 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)