Impartial Hearing Decision

FINDINGS OF FACTS & DECISION

Case Number: 227909

NYS Identifier Number: 575124

Student’s Name: REDACTED

Date of Birth: [“Confidential”]

District: REDACTED

Hearing Requested By: Parent

Dates(s) of Hearing: 09/16/22, 10/17/22, 11/18/22

01/19/23 & 03/14/23

Actual Record Close Date: May 01, 2023

Hearing Officer: Sharifa Milena Nasser

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date

[CONFIDENTIAL] Attorney PARENT 09/16/22 (V)

[CONFIDENTIAL] DOE Representative DOE 09/16/22 (V)

[CONFIDENTIAL] Attorney PARENT 10/17/22 (V)

[CONFIDENTIAL] DOE Representative DOE 10/17/22 (V)

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

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

[CONFIDENTIAL] Attorney PARENT 01/19/23 (V)

[CONFIDENTIAL] Parent PARENT 01/19/23 (V)

[CONFIDENTIAL] Observing Attorney PARENT 01/19/23 (V) [CONFIDENTIAL] DOE Representative DOE 01/19/23 (V) [CONFIDENTIAL] Witness DOE 01/19/23 (V) [CONFIDENTIAL] Witness DOE 01/19/23 (V) [CONFIDENTIAL] Attorney PARENT 03/14/23 (V)

[CONFIDENTIAL] Parent PARENT 03/14/23 (V)

[CONFIDENTIAL] Witness PARENT 03/14/23 (V) [CONFIDENTIAL] DOE Representative DOE 03/14/23 (V) [CONFIDENTIAL] DOE Representative DOE 03/14/23 (V)

DOCUMENTATION ENTERED INTO RECORD

A. Number/Letter Title Dated For # of Pages Impartial Hearing 07/05/22 PARENT Request 05 pages

B. Letter from Parent to 08/17/21 PARENT REDACTED Chairperson, with Email Confirmation 06 pages

C. Program Description N/A PARENT 02 pages

D. 2021/2022 Class N/A PARENT 01 Schedule

E. Teacher Report 02/20/22 PARENT 07 pages

F. N/A PARENT Speech-Language Progress Report February 2022 02 pages

G. Occupational Therapy 02/20/22 PARENT 01 Progress Update

H. N/A PARENT Counseling Progress Update February 2022 02 pages

I. Private N/A PARENT School Educational Plan June 2022 17 pages

J. Enrollment Contract and 07/01/21 PARENT Addendum 03 pages

K. Tuition Affidavit 12/22/22 PARENT 01 pages

L. Related Services Affidavit 07/19/22 PARENT 01 pages

M. U.S. Individual N/A PARENT Tax Return 2021 03 pages

N. Consent for Additional 02/18/22 PARENT 05 Assessments, with Email Confirmation

O. Prior Written Notice 02/18/22 PARENT 03 pages

P. Affidavit of Testimony 01/11/23 PARENT Of Parent 06 pages

Q. Affidavit of Testimony 01/11/23 PARENT 10 pages

Of. Program Director

1. Notice of IEP Meeting 02/08/21 DOE 03 pages DOE

2. IEP 03/10/21 DOE 26 pages DOE

3. IEP Attendance Page 03/10/21 DOE 01 pages DOE

4. IEP Meeting Minutes 03/10/21 DOE 03 pages DOE

5. REDACTED Counseling 02/05/21 DOE 01 Progress Report DOE

6. N/A DOE February 2021 06 pages DOE

REDACTED

Progress Report

7 October 2020 N/A DOE 09

REDACTED

Education Educational Plan

8 February 2021 N/A DOE 02

REDACTED

Speech-Language

Progress Report

9 October 2020-2021 N/A DOE 02

REDACTED for Special

Education Educational Plan

10 Prior Written Notice of 05/17/21 DOE 04

Recommendation

11 School Location Letter 05/17/21 DOE 02

13 Affidavit of 01/06/23 DOE 02

REDACTED

On July 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 a REDACTED year old student attending a private school and the New York City Department of Education (“DOE”) District 21. The Parents allege a denial of FAPE for the 2021-2022 school year, The Parents filed a Due Process Complaint (“DPC”) on or about July 5, 2022. The impartial hearing was held on January 19, 2023 and March 14, 2023. An IEP meeting was held for the student on March 10, 2021. At the impartial hearing, the Parent seeks the following relief:

• A finding that the student was denied a FAPE for the 2021-2022 school years.

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

• Tuition reimbursement and/or direct payment/funding of the student’s tuition at the private school for the 2021-2022 school year.

THE DOE’S CASE

The DOE called two witnesses to testify on its behalf and submitted (12) 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. However, one of the witnesses’ testimony was stricken from the record because they failed to appear for their continued cross examination. (T- 78-79)

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 dates, the DOE crossed one of the affiants. The Parent also submitted (17) 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.

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 allege a denial of FAPE for the 2021-2022 school year. It is the Parent’s position that the program developed during the March 2021 IEP meeting was inadequate for many reasons, as per the Parent’s DPC. The Parents allege that the student’s 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 year. (Id.) The Parents allege that the CSE failed to conduct a proper review for the student and make appropriate recommendations for her educational planning. The Parent states that they served the DOE with notice of the student’s unilateral placement at a private school on February 18, 2022 for the 2021-2022 school year. (O)

DOE Witness The District’s witness, REDACTED, who is a special education teacher for CSE 7, testified on direct via affidavit. The parents’ attorney began crosse examination of REDACTED on January 19, 2023. (T-63). REDACTED cross examination was to continue on March 14, 2023. The adjourn date was also picked with the input of the availability of the witness. (T-78) The merit hearing was set to commence at 10:30 am. The District was given an opportunity to contact their witness when she did not appear for the hearing. At 11:20 am the District had no information as to the whereabouts of their witness. (T-78) The district provided no further information except that the witness could not log on at this time. Without further information or a reasonable excuse for the witnesses non appearance, the witnesses previous testimony was stricken from the record as the Parent did not have a full and fair opportunity to cross examine the witness. (T-79)

The District’s other witness, REDACTED works at REDACTED as a Special Education teacher, she testified via affidavit on direct as follows: 7. Based on my review of the student’s IEP, it is my opinion that REDACTED could have implemented her IEP for the 2021-2022 school year. Our site would have been able to fulfill the SETSS, counseling, and speech language therapy mandates. REDACTED also had a seat available for this student at the beginning of the 2021-2022 school year. 8. I have also reviewed the student’s annual goals, and it is my opinion that our SETSS and related services staff have the training and experience to implement the recommended program for this student. 9. Accordingly, based upon my review of REDACTED IEP, REDACTED would have been able to accommodate the student’s Special Education Program consisting of SETSS, counseling, and speech language therapy. The placement and services were available on the first day of the 2021-2022 school year. (13)

On cross examination, the witness testified about the size of general education classes for students in the 3rd grade, and testified that there were 32 students. (T-45) REDACTED: But I can't say if those classes back then had 32 children in them. (T-48) When asked about SETTS services within the school, REDACTED testified as follows, REDACTED: And you don't know, sitting here right now, how many students in your school needed SETSS that year, how you determined those groupings, because that wasn't your role that year? REDACTED: No, I don't have that information. (T-50)

The Parent’s witness, REDACTED, the Program director at the students private school, testified on direct via affidavit, In my capacity as Program Director at the REDACTED, I handle a wide variety of administrative tasks. I decide on the makeup of the classes, together with our Curriculum Director, REDACTED: I hire the teachers, and I ensure there is collaboration between the therapists and support staff teachers. I am part of a hierarchy of supervision for staff and students to ensure that there is collaboration between the teachers and the support staff. I make sure all students are receiving the services they need. I observe students in the classroom. I also meet with related service providers on an ongoing basis. Additionally, I troubleshoot a wide variety of day-to-day issues. 1. REDACTED (NYCID: REDACTED, DOB: REDACTED) was enrolled at REDACTED for the 2021-2022 school year. In my capacity as Program Director, I had the opportunity to observe REDACTED inside and outside of the classroom. I observed her daily during arrival and dismissal. I also conducted formal and informal observations of REDACTED in her classroom during the 2021-2022 school year. 2. At the start of the 2021-2022 school year, REDACTED presented as a sweet child who was eager to please and who was well-liked. However, she presented with a variety of challenges that impeded her learning and functioning in school. Her academic skills were delayed, and she had difficulty with learning and retention of skills. She had significant receptive and expressive language delays, including articulation deficits that needed to be addressed both in the classroom and during speech therapy. Her auditory processing skills were deficient. She needed information presented to her in smaller manageable chunks with multisensory cues and with pre-teaching of all vocabulary so that she could understand and learn, as well as constant review and repetition to ensure that she mastered and retained information. She struggled to express herself and had a hard time putting her thoughts into coherent sentences. She was also very distractible and had a lot of difficulty staying focused; it was important to ensure she had a clean and organized work space to help her stay focused, but she needed consistent redirection to help her stay on task. She needed a lot of 1:1 and small group instruction with multisensory materials and games, as well as breaks and other opportunities for movement, to help her stay focused for learning. She also needed very structured behavior modification in order to stay focused and learn other appropriate behaviors for classroom and school functioning. She also had difficulty with emotional regulation; she tended to be very anxious and easily overwhelmed and would freeze up when unsure of herself. She required constant support and reassurance that she was doing tasks correctly or she would shut down, and she needed support to help her learn strategies for emotional regulation. REDACTED also presented with social skills deficits and had difficulty interacting appropriately with her peers, which also required support throughout the day. In addition, she presented with weak graphomotor, visual perceptual, and organizational skills that also required support. We incorporated support for organizational skills during her school day and provided her with dotted lines and clear markings on worksheets as a modification due to her weak visual perceptual skills to help her complete her work.

3. I participated in an IEP meeting for REDACTED on March 10, 2021. During the meeting, REDACTED teacher and I discussed how REDACTED was doing in school, as well as the support REDACTED needed for behavior and for her emotional and social needs in school to function in school and to learn.

We also discussed that REDACTED presented with graphomotor and visual motor challenges that required occupational therapy and that she was receiving occupational therapy at REDACTED. During the meeting, the CSE said that it would again be recommending a general education class with only SETSS for REDACTED 4 times per week, as well as speech therapy, and counseling. REDACTED parent and I expressed serious concerns that this program would be entirely insufficient for REDACTED and that she needed a small class and individualized and small group specialized instruction and support throughout the day in order to function and to learn. REDACTED parent and I stated that we were very concerned the recommended program would be entirely insufficient to meet REDACTED needs, but the CSE would not consider any alternative class or program options for her.

4. I have had the opportunity to review the March 10, 2021 IEP that the district created for REDACTED. Based upon what I know about REDACTED and her needs, the IEP would have been completely inappropriate for REDACTED for the 2021-2022 school year.

5. As I stated during REDACTED IEP meeting, a general education class with SETSS 4 times per week with speech therapy and counseling was entirely insufficient to meet REDACTED needs for the 2021-2022 school year. REDACTED had significant difficulties academically, as well as significant speech/language deficits, and difficulties with attentional, behavioral, and social/emotional skills, among other things. She needed to receive her instruction 1:1 or in a group of 2 for reading and math, respectively, and needed a high amount of individualized instruction, modifications, and specialized supports during the 2021-2022 school year, even in her very small, specialized class setting at REDACTED. She would not have received the level of specialized instruction or individualized support she requires in the program recommended by the district. REDACTED needed a full-time special education program for the 2021-2022 school year.

6. The IEP does not accurately describe or address REDACTED needs. Despite the discussion during REDACTED IEP meeting about the behavioral modification and supports REDACTED required within her program at REDACTED, the IEP inaccurately states that REDACTED did not need any behavioral supports and fails to include any behavioral plan or adequate support for behavior for her. Without appropriate behavioral support, REDACTED would not have been capable of functioning appropriately in the classroom and learning during the school year.

7. The IEP does not otherwise include sufficient management needs for REDACTED. The IEP fails to provide for any 1:1 instruction for REDACTED, which she required for reading. The IEP also does not provide for small group instruction in areas other than Math. The IEP does not provide for the direct instruction in social skills that REDACTED required or for the visual schedule she needed. It also does not provide for the pre-teaching of vocabulary, information broken down into more manageable chunks, modified worksheets with dotted lines to address her visual perceptual challenges, or for an environment with minimal distractions.

8. The IEP goals are entirely insufficient and inappropriate for REDACTED. The reading goals included are insufficient for REDACTED, as they do not address her need to expand sight words or spelling skills, fluency, improving speed and intonation while reading, and difficulty with auditory comprehension. The reading goals are also missing a number of phonetic elements REDACTED needed to work on, including decoding multisyllabic words, words with initial and final consonant blends, words with consonant digraphs, and words with sticky sounds. The IEP also fails to cover reading comprehension skills such as making predictions about a story and retelling events/sequencing the events in a story. The IEP did not include appropriate writing goals for REDACTED. The writing goal in the IEP is not measurable as worded and would have been overreaching for REDACTED, and the IEP failed to include any goals to address handwriting skills, which she needed to master. The IEP also failed to include appropriate math goals for REDACTED, including goals addressing reading and writing numbers, identifying greater/less than in 2 and 3-digit numbers, understanding and identifying place value in numbers, skip counting skills, and working with money. The IEP does not include sufficient goals for speech/language and social skills including adequate goals for social pragmatics (including initiating and maintaining conversations and gaining attention appropriately), nor does it include sufficient goals to address her behavioral/emotional needs. In addition, REDACTED would have been entirely unable to make progress on the goals in the IEP with the level of support provided in the program recommended.

9. The promotion criteria in the IEP were also inappropriate, as they would have required her to meet 3rd grade criteria, which would have been too advanced for REDACTED given her level of functioning at the start of the 2021-22 school year.

10. The IEP also fails to provide for any Occupational Therapy for REDACTED, which she needed to address her fine motor and visual perceptual deficits.

11. Overall, in my professional opinion, REDACTED provided REDACTED with an appropriate program for the 2021-2022 school year. We were able to identify her challenges in academic, speech/language, social/emotional/behavioral, and sensory/motor areas and were able to establish individualized goals for her and to design and implement individualized strategies that were helpful to her and enabled her to learn and make progress across the board during the school year. (Q)

On cross examination, the witness testified as follows: as to the students deficits with her social skills, REDACTED: Regarding, I guess, what specific social skills deficits was the witness 1 referring to in paragraph 7? REDACTED: So I was referring to her difficulty with conversational skills, initiating and maintaining a conversation, learning the back and forth of a conversation, maintaining a topic in conversation, as well as play skills. She had difficulty initiating play, suggesting a game, playing, let's say, a board game with another child, learning the rules of a game. She struggled with those areas. She was extremely reserved, extremely shy, very anxious, and her language, you know, her language deficits also were a big impediment to her ability to have conversations and to, you know, be able to communicate effectively so she needed support. (T-92-93)

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 school year. The students report cards and progress reports are submitted into evidence. (E,F,G,H)

The Parents evidence shows that the student’s unilateral placement school provides individualized instruction and the students has progressed during her time there as per the Parents witnesses and documentation submitted into evidence of the students’ progress reports. (E,F,G,H)

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.

Whereas, accordingly, I find that I will exercise my discretion under 34 C.F.R. 300.502(d) and 8 NYCRR 200.5(i)(3)(vi) and order the DOE to conduct its own evaluations regarding any areas of suspected disabilities that the student may have; and, which the Parent may subsequently agree or disagree with; and 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 reimburse the Parent or pay directly 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 minus the religious portion of the tuition of $4,141.20; and it is further

ORDERED that within 30 days of the completion of all of the evaluations 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 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: July 17, 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 L[2nd PRIVATE SCHOOL INITIALS] 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)