New York City Department of Education, Impartial Hearing Decision

Case Number: 583142 – NYC: 234870

FINDINGS OF FACTS & DECISION

Case Number: 234870

NYS Identifier Number N/A Student’s Name: [REDACTED]

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Requested By: Parent

Dates(s) of Hearing: 01/10/23, 02/03/23 & 02/28/23

Actual Record Close Date: 03/31/23

Hearing Officer: Edgar De Leon

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date

[REDACTED] Attorney DOE 01/10/23 (V) 02/03/23 (V) 02/28/23 (V)

[REDACTED] Assistant Principal DOE 01/10/23 (V)

[REDACTED] Psychologist DOE 01/10/23 (V) 02/03/23 (V)

[REDACTED] Placement Officer DOE 02/28/23 (V)

[REDACTED] Attorney PARENT 01/10/23 (V) 02/03/23 (V) 02/28/23 (V)

[REDACTED] Father PARENT 01/10/23 (V) 02/03/23 (V) 02/28/23 (V)

[REDACTED] Mother PARENT 01/10/23 (V) 02/03/23 (V) 02/28/23 (V)

[REDACTED] Neuropsychologist PARENT 02/03/23 (V)

[REDACTED] Observer PARENT 02/03/23 (V)

[REDACTED] Private School Administrator PARENT 02/28/23 (V)

[REDACTED] Private School PARENT 02/28/23 (V)

DOCUMENTATION ENTERED INTO RECORD

Number/Letter Title Dated For # of Pages

N/A N/A N/A DOE N/A

DOE EXHIBITS

1. DPC 09/07/22 12 pages DOE

2. IEP 03/07/22 36 pages DOE

3. Prior Written Notice with School Location Letter 08/31/22 7 pages DOE

4. Email from Parent 07/15/22 1 page DOE

5. Letter from Parent 06/17/22 2 pages DOE

6. Jan 2022 Progress Report 15 pages DOE

7. Progress Report June 2021 11 pages DOE

8. Psychological Evaluation 12/26/18 16 pages DOE

9. Notice of Meeting 02/18/22 3 pages DOE

11. 10 09/09/21- SESIS Events Log 4 09/23/22 Ten Day Notice 08/23/22 13 pages DOE

PARENT EXHIBITS

A. Due Process Complaint 09/07/2022 12 pages

B. Ten Day Notice 08/23/2022 13 pages

C. Letter to CSE from [REDACTED] re IEP and school placement for 2022-2023 06/07/2022 3 pages

D. Letter to CSE from [REDACTED] private evaluation 06/24/2022 27 pages

E. The Learning and Development Center Neuropsychological Evaluation 06/09/2022 24 pages

F. Weill Cornell Medical College - [REDACTED] Private Neuropsychological Evaluation 07/29/2019 3 pages

G. Weill-Cornell Medical College - [REDACTED] Neuropsychological Update to Report 06/03/2022 6 pages

H. [REDACTED] School 2022-23 Enrollment Contract 06/02/2022 6 pages

I. [REDACTED] School Attendance October 2022 10/2022 1 page

J. [REDACTED] School Attendance November 2022 11/2022 1 page

K. [REDACTED] School Attendance December 2022 12/2022 1 page

L. [REDACTED] School [REDACTED] 21-22 Year-End Report 06/2022 13 pages

M. [REDACTED] Individualized Education Program (IEP) 03/21/2022 35 pages

N. NYS DOE Students with Disabilities Resulting from Dyslexia, Dysgraphia, and Dyscalculia Questions and Answers 08/2018 12 pages

O. Affidavit of Dr. [REDACTED], PSY,D 1/9/2023 5 pages

P. Affidavit of [REDACTED] 1/10/2023 11 pages

Q. Affidavit of Mother 1/9/2023 8 pages

R. Affidavit of [REDACTED] 2/3/2023 10 pages

S. [REDACTED] School [REDACTED] 22-23 Mid-Trimester Report Card 1/13/2023 5 pages

T. Email from [REDACTED], Lower School Administrator, sending Mid-Trimester Report U Closing Statement 03/24/23 PARENT 19 3/7/2022 1 page

N/A N/A N/A IHO N/A

On October 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), ), Article 89 of the New York State Education Law, Part 200 of the Regulations of the New York State Commissioner of Education and Section 504 of the Rehabilitation Act of 1973, concerning a dispute between the Parent of an (11) year old student attending a private school and the New York City Department of Education (“DOE”) - District: 15, concerning the student’s special education program. I was appointed after the rescission of the appointment of at least one other IHO. After adjournments were granted at the request of and with the consent of the parties, or for good cause, the impartial hearing was held on January 10, 20203, February 3, 2023 and February 28, 2023. The parties opted to submit written closing statements which were received on March 24, 2023. (D-12 & P-U) A list of the witnesses who appeared and the documents taken into evidence is annexed to this decision.

BACKGROUND

In this case, the Parent alleges that the student was denied a “free and appropriate public education” (“FAPE”) for the 2017-2018 and 2022-2023 school year. At the impartial hearing, the Parent seeks the following relief: (a) An Order on Pendency based upon the Final Findings of Fact and Decision (“FOFD”) in NYC Case No. 215155; and (b) A Final Order to consist of the following: (i) placement and funding (reimbursement and/or direct funding) for tuition at the private school; (ii) round trip airconditioned transportation in a mini-bus and limited travel time; and (c) An Order directing the DOE to satisfy the Parents’ debt owed to the private school for the 2022-2023 school year retrospectively and prospectively pay the tuition to the private school for the 2022-2023 school year, and/or make the Parents whole with regard to their debt to the private school in any other manner that may be necessary or appropriate; and (d) A declaration of rights in favor of the Parents, declaring the conduct alleged herein to be illegal and in violation of the IDEA, Section 504, and New York State Education law; and (e) A finding that the student has been denied FAPE during the 2022-2023 school year; and (f) A legally valid IEP that comports with all procedural aspects of the IDEA; and (g) Compensatory education, additional related services based on the DOE’s denial of a FAPE and violation of pendency for the 2022-2023 school year; (h) An admission that FAPE was denied for the 2022-2023 school year (Prong 1); and (i) A finding that the private school is appropriate (Prong 2); and (j) A finding that the equities favor the Parents (Prong 3); and (k) Attorneys’ fees and costs; and (l) Any and all other relief that may be appropriate as of the time the IHO is ready to issue a final decision, but which may not be known to the Parent(s) as of the time of this filing.

THE DOE’S CASE

The DOE called (2) witnesses to testify on its behalf and submitted (13) documents as evidence. In sum, substance and relevant part, the testimony and documentary evidence on behalf of the DOE is as follows:

The DOE did not stipulate to Parents’ exhibit “E” being received in evidence as duplicative of exhibit “D.” (T-20 & 130) The Parents agreed to withdraw exhibit “E.” (Id.)

The first witness for the DOE is an assistant principal with the NYC-DOE. (T-42-3) Her school is an intermediate school, grades 6, 7, and 8. (T-45) For the 2022 to 2023 school year, starting on or about September 5th, her school had a 12:1 special class for 6th grade. (T-46) Her school provides related services of counseling, occupational therapy, physical therapy, and speech. (Id.) She is not familiar with the student in this case other than through his IEP. (Id.) If the student had attended her school, they did have a seat for him. (T-47) She is not aware of the Parents visiting her school. (Id.)

On cross examination, the witness testified that she first became aware of the student when the DOE attorney reached out to her. (T-53) She has not received any communication from anyone that the student had been placed at her school. (T-53-4)

On re-direct examination, the witness testified that if the student had been placed at her school, the notification could have been given to someone else at the school. (T54-5) There was no re-cross examination of the witness. (T-55)

The DOE’s second witness is a school psychologist for (25) years. (T-68-9) She was the District Representative at the student’s IEP meeting. (T-70) The meeting was in December of 2021 and it was for the student’s 2020-2021 school year. (T-71-2) Later, the parties stipulated that the witness was the District Representative at the student’s March 7, 2022 IEP meeting. (T-73 & D-2)

The witness testified that they reviewed teacher reports and the student’s previous IEPs at the meeting. (T-73-4) There was testing from 2018 that was reviewed at the meeting. (T-75) Regarding the date of the testing used at the meeting, the witness testified: So we'll -- we will -- we -- we will request a reevaluation for additional testing if we feel that the testing is -- is not current, if it's extremely outdated. And when I say extremely outdated, you know, it could be five years old. Testing that's three -- within three years, and we have a tremendous amount of anecdotal evidence, that was -- that was really appropriate and sufficient. So we went by the testing that we had. There was no reason to request additional testing at that point. (T-76)

The witness testified that there was a year's time in which the child made no academic progress in reading, and he became three years below grade level because he became a grade older. (T-78) She questioned the private school’s attendees to the meeting repeatedly as to what interventions were put in place to which they indicated they were giving the student the same reading program that he was being given the year before. (Id.) The Orton-Gilligan program did not work for the student. (T-79) Not only did the private school continue the student in the same reading program where he was making zero progress, they actually continued him in the same book. (Id.) The student’s ELA scores were mid-2nd grade and had not improved for “two IEPs” now. (T-83) In math, the student was working in a 3rd grade curriculum. (Id.) Everything in the student’s IEP is appropriate. (T-83-91)

The witness further testified that the student's social and emotional development needs were discussed at the IEP meeting. (T-91) The student’s self-esteem is affected by the fact that his academics is very hard for him. (Id.) All of the student’s goals were crafted at the IEP meeting and were either taken from the IEP the previous year, or they're new goals that they “worded” at the meeting with the parent and the private school representative present. (T-92-101) She thinks the student’s goals are extremely comprehensive, and they support all of his needs. (T-101) The student was moved from an ICT class to a 12:1 class, and because he did not make progress. (Id.)

The witness testified that the student was also recommended for group counseling, group of three, one time a week for 30 minutes, as well as occupational therapy, group of three, one time a week for 30 minutes and speech-language therapy, group of three, two times a week for 30 minutes. (T-102-4) For the previous year, the student was not receiving the related services at the private school as they were mandated on the IEP. (T-1090 On cross examination the witness confirmed that she attended the student’s March 2022 IEP meeting. (T-133) She also confirmed that they used a 2018 evaluation of the student at the IEP meeting, a 2020-2021 progress report and the student’s IEP from a previous year. (T-134-5) She did not personally have any communication with the Parents prior to the IEP meeting concerning the documents that they would be using at the meeting. (T-136) She also did not discuss with the Parents prior to the IEP meeting any reassessments that might be required prior to the meeting, or any discussion whatsoever. (T-136-7) The witness also conceded that she never visited the student at the private school or assessed or evaluated him. (T-137) In fact, she has never met the student. (Id.) The last progress report she had for the student was from January 2021, which was (14) months prior to the holding of the meeting. (T-139)

The witness also conceded that the student’s 2018 evaluation is not referenced in the evaluation section of the student’s IEP. (T-140 & P-M) She did reach out to the private school for additional data, but they did not have any. (T-141) She did not have a licensed speech-language therapist participate at the meeting. (T-142) Regarding the student’s receipt of speech services at the private school, the witness testified as follows: There was push-in service, not as a direct service, for the entire classroom. So I said at the time, at the meeting, based on the fact that [REDACTED] was making very minimal to zero progress, why wasn't speech and language given to [REDACTED] as it was mandated on the IEP. [REDACTED] acknowledged that it was not being given. (T-144)

The witness further testified that based on the 2018 psychoeducational, the student has average IQ. (T-146) He is not a student that has intellectual deficiencies. (T-146) The student is capable of making a year's progress in a year's time, even though he has an intrinsic learning disability. (T-146-7) However, Orton-Gillingham was already tried as a multimodality instruction and it failed, so she assumed that the person reading the IEP would give the student a different instructional method, a different multimodality instruction, but she did not figure out which instruction would work with the student. (T148-9)

The witness conceded that a student is to be evaluated at least every three years, unless the parent requests an evaluation at a sooner time and that 2018 and 2022 are more than three years apart. (T-149) The witness also conceded that the “SESIS” log indicates that on June 27th, (“2022”, see Parent’s Exhibit “E”), she received a neuropsychological report from the Parents. (T-153) She reviewed the neuropsychological report. (T-154) The witness responded, “I don’t know” when asked if she held another IEP meeting in response to her receipt of the new neuropsychological evaluation. (T-155) She asserted that an IEP is only required to be reviewed once a year. (T-157) It is apparent to the undersigned that there was opportunity for a reconvening of the IEP meeting that was held in March 2022, to update that IEP prepared before the beginning of the 10-month 2022-2023 school year in September of 2022. (T159-60) To this determination, the witness responded: So I mean the only thing that I could say is that I used the data that was provided. Admittedly, the provided data was imperfect as this was a parentally placed program that the parents chose. So I used the data that's provided by the private school. When the private school says that they don't have additional data, right, I go with that. That's what I have. When the private school tells me that, you know, they're not required to follow the IEP and on the IEP every goal states that it will be evaluated one time per month, right, and then it would have been noted very early on that [[REDACTED]] was not making any progress over the course of a full, a full year, right. And they say that well -- -- they don't look at it, it's the same thing like now if we can't look backwards at the previous IEP, now we're expected to be a prophet and looking forward. I'm a little bit confused as to what that is. I am confident that what I - whatever I recommended on the IEP was correct based on all of the data that was provided. (T-160-1)

The witness also testified that she did not conduct an assistive technology evaluation of the student even though she agrees that students with severe dyslexia can benefit from assistive technology devices, although not all students need it. (T-164-5) She conceded that there was no discussion at the meeting considering a reading specialist to push into the student's classroom or program as a part of his IEP. (T-165)

On re-direct examination, the witness testified that no other documents were needed at the IEP meeting because she didn't feel that she needed additional material to note that the instructional level was inappropriate. (T-169-70) The private school representative said that there were no additional reports available. (T-171)

The witness testified that they are not allowed to put a specific reading methodology on the IEP. (T-172) She does not know the specific reasoning behind it. (T-173) She believes that based on the fact that the student was working in an Orton program for a year and made no progress, it is clearly the wrong program for him. (T179) She did not recommend a 12:1 class in a special education school for the student because she wanted him in a community school with access to general education peers. (T-181) The student did not need an assistive technology evaluation. (T-184-5) Additionally, the student was not receiving any instruction and a reading specialist would be after you try different interventions. (T-186) When asked why an IEP meeting was not reconvened after the submission of the neuropsychological report, the witness testified that they convene IEPs once a year and the student’s IEP meeting was held in March, so his next IEP meeting would be held by March. (T-191)

There was no substantive testimony developed during the witness’ re-cross examination. (T-191-2)

THE PARENT’S CASE

The Parent called (3) witnesses to testify on her behalf and submitted (17) documents into evidence. (T-25) In sum, substance and relevant part, the testimony and documentary on behalf of the Parent is as follows:

At the hearing, the Parents rescinded their request for compensatory education services and limited their request for relief solely to “tuition reimbursement” for a 10-month school year. (T-8-9) The Parents consented to all of the DOE’s proposed exhibits being received in evidence. (T-13) The Parents acknowledged that the DOE agreed to “pendency” in this case. (T-33)

The Parent’s first witness is a licensed psychologist. (P-O) The witness testified on direct examination via affidavit as follows:

3. At [REDACTED], I have several roles: I am the Clinical Director of the Division of Pediatric Neuropsychology, as well as the Director of the Division of ADHD, Learning Disabilities and Related Disorders ("ADHD Division"). I am also an Assistant Professor Psychiatry at [REDACTED] School of Medicine at [REDACTED] Hospital.

10. However, for the past several years, I have not provided direct treatment to patients and have been focusing on assessment and management of the divisions, as well as teaching.

14. I am familiar with the student, [REDACTED], as I met and evaluated [REDACTED] in June 2022.

16. I also spoke to his current school [[REDACTED]] School ("REDACTED") on several occasions including at the beginning of the school year to explain the results of my evaluation and how they could accommodate his needs.

21. Briefly, my testing revealed that [[REDACTED]] is a highly intelligent young man whose abilities are hampered by his diagnoses of Attention Deficit/Hyperactivity Disorder, Combined Type, Specific Learning Disorder with Impairments in Written Expression, Specific Learning Disorder with Impairments in Reading (i.e., dyslexia), Specific Learning Disorder with Impairments in Mathematics, Generalized Anxiety Disorder, and Unspecified Depressive Disorder.

22. [[REDACTED]]'s overall intellectual functioning was extremely variable and therefore a Full-Scale IQ is not the best measure of his functioning. However, his general ability index was on the very high range; his verbal intelligence was in the very high range, his verbal reasoning skills were excellent, and his ability to define vocabulary words was about average. However, he had variable memory, delays in receptive language skills, and delayed phonological processing.

23. [[REDACTED]]'s executive functioning skills were poor. On a task of extended attention, his performance indicated delayed skills. He was very impulsive on this longer test of attention. He was impulsive, even on much shorter tasks.

24. [[REDACTED]]'s overall academic achievement tended to be delayed. His reading, writing, and math skills were all below grade level. For reasons detailed in my report, I diagnosed with [[REDACTED]] with Specific Learning Disorder with Impairments in reading, mathematics, and written expression.

25. DSM-5 considers Specific Learning Disorder to be a type of Neurodevelopmental Disorder that impedes the ability to learn or use specific academic skills (e.g., reading, writing, or arithmetic), which are the foundation for other academic learning. The learning difficulties are 'unexpected' in that other aspects of development are on track.

30. As set forth in my report, [[REDACTED]] has significant learning, attentional, and emotional issues. He requires an intensive, individualized support in a small full-time special education environment where he is taught to his specific learning needs. I have set forth a full list of [[REDACTED]]'s educational needs.

31. I have reviewed [[REDACTED]]'s IEP from March 2022

34. Fountas and Pinnell is a system which encourages children to learn to inference and guess at unfamiliar words. Orton Gillingham based programs such as Preventing Academic Failure ("PAF"), WILSON, and the Slingerland method specifically work to teach children not to guess and to train them out of that methodology. So, it does not capture the progress made by a child who is learning to read via Orton Gillingham. A more appropriate method would be to look at the levels that he has gained since starting PAF in elementary school at [REDACTED] or the equivalent in the WILSON system since he has switched to that now that he is in middle school.

36. I have reviewed [[REDACTED]]'s progress reports.

38. Dyslexic students typically do not progress one grade level per year. For the most part, given the deficits and differences in the way that their brain works, the progress at a slower but steady pace. In [[REDACTED]]'s case, he is progressing, just not with the particular metrics that this school psychologist has laid out. Please see the details above. From a practical standpoint, [[REDACTED]] can now read something like the New York Daily News or New York Post, where he was unable to before. In terms of life skills, for a severely dyslexic student, this is important progress.

39. It is my clinical opinion that a 12:1 program in a DOE public school without is not appropriate for [[REDACTED]] as he requires more intensive levels of support in order to meet his educational needs. [[REDACTED]] requires a school that will teach him in a structured, sequential, multi-sensory program based on Orton Gillingham methodology. To my knowledge, there is no DOE school that offers both a 12:1 ratio and two periods per day in this type of methodology, as well as having the social skills support and emotional support that he needs.

40. [[REDACTED]] requires a structured, sequential, multisensory, evidence-based program for reading. Orton-Gillingham based methodology for learning. I know this because I am an expert in assessing and evaluating children with [[REDACTED]]'s learning profile. In particular, [[REDACTED]]'s phonological processing deficits cause him to require this type of intervention.

42. Orton-Gillingham utilizes a structured, sequential, multisensory program, which is how [[REDACTED]] learns. This is what is recommended by research for students with deficits in phonological processing. Please see the recommendations of the United States' Institute of Education Science's Whatwork clearinghouse. Further, the amount of research on these programs is significant. See for example…

46. I have reviewed "Management Needs" as set forth in his March 2022 IEP. Although some of the recommendations are salient, these do not meet his needs. The managements needs as written are too vague. He needs specific instruction in a structured, sequential, multisensory reading program, as stated above. Further, he needs the Hochman writing program or SRSD, both of which are research-based programs for students with writing disabilities. [[REDACTED]] also requires small group instruction in writing and reading. If the ratio is simply 12:1 there is no opportunity to break into smaller groups.

48. It is my understanding that in his current school program, [[REDACTED]] is grouped with six students in literacy and math. Small grouping like this is crucial to [[REDACTED]]'s learning.

49. The emotional support built into the program at [REDACTED] is also necessary and crucial to [[REDACTED]]. [[REDACTED]] has significant anxiety and depression. [[REDACTED]] has poor frustration tolerance and has been known to melt down without enough emotional support.

Throughout the last year [REDACTED] has had to implement a variety of programs to help provide emotional support. Counseling once per week in a small group will not meet his significant needs.

53. I based my recommendations on the testing, interviews and history of [[REDACTED]]'s challenges and strengths, as well my expertise, years of experience in the field of clinical and school psychology and special education in New York City. (P-O)

On cross examination, the witness testified that she is familiar with New York City Department of Education's special education programs and the continuum of services or continuum of placements. (T-214) The student’s IQ score is quite high intellectually, he has got well-developed skills, but the contrast between his intellectual skills and his reading skills are significant requiring him to be placed in a program where other students have the same capacity that he does, not students with below average, borderline, or intellectual impairments. (T-215) Things like the Orton-Gillingham based programs like PAF, Wilson, are all supported by research only recommends things that are empirically supported. (T-227) She does not think it would be possible to get the student up to grade level within a school year because he's so far behind. (T-231)

The witness testified that the private school did seem like an appropriate placement because have him in very small group settings for reading and writing and also has the social skills, groups, both push-in and pull-out. (T-231-2) There was no re-direct examination of the witness. (T-234)

The Parents’ second witness is the school administrator at the private school and the liaison to the Department of Ed. (T-254) The student is a 6th grader at her school. (T-256) The DOE did not request any documents from her for the March meeting. (T258-9) She did send them a progress report from midterm 2021-2022 school year. (T259) She sent the lower school reports on March 7th to the CSE team. (T-261) There was no time when the DOE psychologist asked her for additional documents before or after the student’s IEP meeting. (T-263)

On cross examination, the witness testified that the document was sent the day of the IEP meeting. (T-264) On re-direct examination, the witness testified that no one contacted her about a follow-up meeting for the student. (T-266) There was no -re-cross examination of the witness. (Id.)

The Parent’s third witness is a Special Education Evaluation Program Placement Officer with the DOE. (T-271) She is not the person who chooses the school for the student. (T-272) She did not review the IEP at issue in this case or the student’s “SESIS” history. (T-275) Her role is to make sure that the school location letter and the “PWN” goes to the Parent. (T-280) The Parents did contact her regarding the school. (T-282) There was no cross examination of the witness. (T-283)

The Parent’s fourth witness is the Head Teacher at the student’s private school. (P-R) She testified on direct examination via affidavit as follows:

2. I hold a Master’s in Childhood Special and General Education from Bank Street College of Education.

5. The [REDACTED] is an independent Quaker school designed to support students with learning disabilities, including dyslexia, dyscalculia, auditory processing disorder, ADHD, receptive and expressive language disorders and executive function deficits. Education is grounded in the Quaker values of equality, integrity, and social responsibility. Students engage with academic subjects through a multisensory approach.

6. [REDACTED] is a full-time college preparatory school specifically designed for students who need intensive support for their learning disabilities, small class sizes, specialized teaching methodologies, a multi-sensory approach to learning, and a challenging curriculum to empower them to become academic achievers, creative thinkers, and contributing members of a global society.

10. I am familiar with [[REDACTED]] (“[REDACTED]”), who has attended [REDACTED] since the 2019-2020 school year. He was my student during the 2021-2022 school year.

11. When [[REDACTED]] started in my classroom, I was aware of [[REDACTED]]’s learning difficulties, including Attention Deficit Hyperactivity Disorder and Dyslexia.

12. I am also aware that [[REDACTED]] had an updated evaluation where he was also diagnosed with specific learning disorder with impairment in written expression, impairments in mathematics, generalized anxiety disorder, unspecified depression.

13. I was [[REDACTED]]’s teacher during the 2021-2022 school year.

14. At [REDACTED] Lower School, class sizes range from 9 to 12 students with two teachers. [[REDACTED]] was in a class with 11 other students who had similar academic and social needs that he does. The 12 students were further divided into separate groups for subjects like math, reading and writing, so their individual needs could be addressed with students with similar needs.

15. [[REDACTED]]’s class was led by two teachers. I was one of the two teachers. Both my co-teacher and I hold master’s degrees and have received training in teaching students with learning disabilities such as [[REDACTED]]’s. In the homeroom, [[REDACTED]] and his classmates received instruction in writing, social studies, Social Emotional Learning, Community and Identity, and current events.

16. [[REDACTED]]’s reading group was a group of three students with similar needs. His teacher, [REDACTED], has a bachelor’s degree in education from Hunter College and has been trained in Orton-Gillingham, a research-based teaching methodology for students with dyslexia.

17. [[REDACTED]]’s math group was a group of 6 students with similar needs. I led this group. I have a master’s degree and have been trained in multiple research-based methods for teaching students with learning disabilities.

18. [[REDACTED]] received push-in language support from a licensed language therapist once a week in a whole group for support accessing language-heavy academic content and for support in writing. He also received occupational therapy once a week in a group of 5 students.

19. I participated in an IEP meeting on March 7th, 2022 concerning [[REDACTED]]. This IEP was held in his fifth-grade school year.

22. [[REDACTED]]’s mother was present at the meeting as well as DOE’s representatives [REDACTED] and [REDACTED]. The sign in sheet states that [REDACTED], a DOE general education teacher was present. I don’t recall her participation.

23. In my recollection, [REDACTED] was the main participant for the DOE.

24. It is my belief that [REDACTED] had not assessed, observed, or met [[REDACTED]] in any setting including our school.

25. It is my belief [REDACTED] had not reached out to speak to me or my co-teacher or anyone else from [REDACTED] prior to the hearing.

26. However, [REDACTED] did provide her and the rest of the IEP team with [[REDACTED]]’s progress reports prior to the meeting.

28. I have a vivid recollection of this meeting.

29. [REDACTED] took a staunch position that [[REDACTED]] was not making progress in reading at [REDACTED].

31. I explained that [[REDACTED]] was in fact making progress. At the start of the 2021-2022 school year [[REDACTED]] was at Orton level 133. By the end of the 2021-2022 school year [[REDACTED]] completed Orton level 168.

44. At the time of the IEP meeting, [[REDACTED]] had been making steady progress. His progress is set forth in detail in his report from January 2022.

45. His end of the year report from June 2022 also demonstrates progress.

49. Between Spring of 2021 and Spring of 2022, [[REDACTED]] made a half grade level progress if strictly using Fountas and Pinnell. In Spring of 2021 [[REDACTED]] was at an independent level J which is the equivalent end 1st grade level. By Spring of 2022 [[REDACTED]] was at an independent level L which is the equivalent mid-2nd grade level.

53. I stated at the meeting that [REDACTED] was meeting [[REDACTED]]’s academic needs.

54. It is my opinion based on my work with [[REDACTED]] and my understanding of his learning style, and teaching him daily, that [[REDACTED]] is appropriately placed at [REDACTED] given the progress he demonstrated.

62. Small class sizes and low student-to-teacher ratios at [REDACTED] ensured that [[REDACTED]] (like all of our students) is provided a significant amount of individual attention and small group instruction. [[REDACTED]] was functionally grouped based on the consideration of his needs and abilities, specifically his social-emotional development, language and communication, academic skills, self-help skills, and age. His classmates have similar attentional challenges, social/emotional skills, and academic abilities. Moreover, [[REDACTED]] responded to the use of evidence-based, multi-sensory curricula used at [REDACTED] in all of his classrooms. [[REDACTED]]'s curriculum was tailored uniquely to his individual strengths and deficits which allowed him to engage in meaningful instruction. The small, supportive environment coupled with the individualized attention and scaffolding provided to [[REDACTED]] at [REDACTED] has provided the environment he needed in order to learn and succeed.

63. [[REDACTED]] needed multisensory instruction- for the reasons outlined above- using the PAF Orton methods to make reading progress. (P-R)

The DOE declined the opportunity to conduct any cross examination of the witness. (T-285)

The Parents’ fifth witness is the Middle School Speech Language Pathologist and CSE Coordinator at the private school. (P-O) She testified as follows:

2. I received a Bachelor’s degree in Human Development at State University of New York at Binghamton, (now known as Binghamton University).

3. I received a Master’s in Communication Disorders: Speech Language Pathology at Adelphi University.

4. I have worked in the field of communication disorders and special education for 12 years, the last 6 have been at [REDACTED].

12. I am familiar with [[REDACTED]] (“[REDACTED]”), who has attended [REDACTED] since the 2019-2020 school year. He is one of the students

I support in my role as Middle School Language Therapist and CSE

Coordinator. I have observed him in multiple academic and social situations.

13. I am aware of [[REDACTED]]’s learning difficulties, including Attention Deficit Hyperactivity Disorder, Dyslexia, Anxiety and Depression..

14. [[REDACTED]] is currently in a class of 11 students, with two teachers.

The head teacher has a masters degree and is a New York State certified teacher. The associate teacher is currently completing her masters degree in special education. He receives weekly language therapy one time a week in small group pull out session and one time a week as a push-in into an academic class. Additionally, his literacy teacher holds a masters degree in speech language pathology. His literacy group meets five times a week for 60 minutes. [[REDACTED]] also has access to direct and indirect occupational therapy, one-on-one teacher support, as well as small group learning.

15. While a student at [REDACTED], [[REDACTED]] has made great strides in his decoding, encoding, comprehension, math and writing skills. [[REDACTED]] benefits from small classes, preferential seating near the teacher, opportunities for repeated exposure and practice of skills, multi-sensory modes of internalizing new information and skills, and frequent teacher focus prompts and OT supports to ensure engagement and attention to task.

16. I am familiar with [[REDACTED]]’s schedule at [REDACTED].

17. At [REDACTED], class ratios range from 3:1-7:1 students to teachers, depending on the context and environment. [[REDACTED]] is in a class with 11 other students who have similar academic and social needs that he does. As described below, he then attends smaller group classes for math and literacy (reading and writing) in a group of 6 with students with needs similar to his.

18. [[REDACTED]]’s class is led by two teachers. One of his teachers holds a master’s degree and has received training in teaching students with learning needs such as [[REDACTED]]’s. In the homeroom grouping of 11 students and two teachers, [[REDACTED]] and his classmates receive instruction in science, history, current events, Spanish, and fine arts.

19. They break into smaller groups, no more than a group of 6, for performing arts and specials, which include Social-Emotional Learning forum (SELF), Digital Literacy, Social Thinking and Learning in the Brain. They participate in advisory-style group building activities with their homeroom teachers.

20. Literacy: students are split into smaller groups depending on their needs and levels. During the 2022-23 school year, [[REDACTED]] is in a group of six students for literacy. His teacher has a master’s degree in speech language pathology and has been trained in the Wilson Reading System, Steps 1-6 towards certification, which is a research-based teaching methodology for students with dyslexia. Additionally, L[[REDACTED]]’s literacy teacher is currently working toward an additional certification in Advanced Study in Language and Literacy.

21. Math: students are split into groups depending on their needs and levels. During the 2022-23 school year, [[REDACTED]] is in a group of 6 students. His teacher has a master’s degree and has been trained in multiple research-based methods for teaching math to students with learning disabilities.

22. [[REDACTED]] also attends several specials, including Art, Music, Drama, Digital Literacy, SELF, Spanish, Social Thinking, Learning in the Brain and Physical Education.

23. Language and OT: [[REDACTED]] receives weekly push-in language support from a licensed language therapist once a week in a content area class in a whole group setting for support accessing language-heavy academic content and for support in writing. He receives pull-out language therapy once a week in a small group of 4 students. [[REDACTED]] receives push-in support from a licensed occupational therapist in a whole group to facilitate his ability to attend and participate during academic classes.

24. I speak with [[REDACTED]]’s teachers and providers regularly. I observe him in class. I am aware of [[REDACTED]]’s progress at [REDACTED]. [REDACTED] is able to meet his needs and he has made progress while a student here. [[REDACTED]]’s progress reports indicate that he has made progress during the 2022-2023 school year. Since [[REDACTED]] has attended [REDACTED], he has progressed in all areas: academic, social and emotional, executive functioning, language and communication, and self-regulation.

32. I am aware of the CSE’s concerns regarding [[REDACTED]]’s lack of progress that was noted during his March 2022 IEP meeting. For a student with his profile, [[REDACTED]] has made steady and meaningful progress in his decoding abilities. In December 2021, [[REDACTED]]’s Fountas & Pinnell independent reading level was K. In the Spring of 2022, [[REDACTED]]’s Fountas & Pinnell independent reading level improved to level L. As of January 2023, [[REDACTED]]’s Fountas & Pinnell independent reading level is P.

39. I am aware of [[REDACTED]]’s neuropsychological evaluation performed in June 2022. [REDACTED] meets the educational recommendations set forth in the evaluation by Dr. [REDACTED]. His literacy teacher uses a multisensory reading program, Wilson Reading System, for which they are also trained in (Steps 1-6). [[REDACTED]]’s literacy teacher also uses Equipped for Reading Success to supplement his reading skills by developing his phonemic awareness abilities.

45. Assistive technology is provided to [[REDACTED]] through access to a personal chromebook, which includes Google Suite, Google Read and Write, and Learning Ally. [[REDACTED]] is able to navigate his AT to support his reading and writing skills.

46. [[REDACTED]]’s diagnoses are complex. He has multiple diagnoses including what is known commonly as dyslexia, as well as ADHD, which is further complicated by anxiety and depression. However, he also has wellabove average cognitive abilities as demonstrated on his most recent neuropsychological evaluation.

53. In my professional opinion, [REDACTED] is appropriate for [[REDACTED]]'s needs and abilities. He has made great progress while a student here, and I believe that [[REDACTED]] should continue to attend [REDACTED] for this school year and beyond. (P-P)

On cross examination, the witness testified that each teacher creates goals for the students based on their needs which are listed in the student’s progress report. (T-293) They use Fountas & Pinnell as an assessment, but it is just one tool out of the many different tools they use to assess and measure progress for their students and she does not consider it a gold standard for students like with dyslexia. (T-294)

The witness testified that Orton-Gillingham is what the student needs to make progress. (T-295) His teacher is using “Singapore Math.” (Id.) This year, the student is using the Wilson Reading system curriculum, along with Kilpatrick's Equipped for Reading Success, which is a phonological processing curriculum. (T-297) He also receives speech therapy, along with OT and counseling as a push-in model, with language therapy one time a week as a pull-out, counseling direct and indirect, the same with OT, depending on the needs of the student at the moment. (Id.) The groups range anywhere from 3:1 to 6:1. (T-298) There was no re-direct examination of the witness. (T-300)

The Parents’ last witness is the student’s mother. (P-Q) She testified on direct examination via affidavit as follows:

4. [[REDACTED]] has been diagnosed with Attention Deficit Hyperactivity Disorder ("ADHD") and Dyslexia. [REDACTED] also has delays in regard to his written expression.

5. [REDACTED] has been known to the DOE as a student with a disability since pre-school. He was evaluated by the Committee on Pre-School Education at age 4 because he was struggling with verbal expression and behavioral regulation. [REDACTED] received Turning Five evaluations and received his first IEP with the classification of Learning Disability.

10. During the same school year, P.S. [NUMBER] recommended that we seek out private schools that could better support [REDACTED]'s needs. Mr. [REDACTED], the school's psychologist, recommended [REDACTED] School [REDACTED] and suggested that we file a lawsuit to secure funding for [REDACTED]. We researched this process as well as private schools specifically tailored to students with Dyslexia, but we also told the school we remained open to staying in the public school system.

12. As a result, we enrolled [REDACTED] at the [REDACTED] for the 2019-2020 school year. This school was appropriate for [REDACTED], as it was specifically designed for students with language-based learning disabilities, as recommended by [REDACTED]'s neuropsychologist.

22. We filed another hearing request for the 2021-2022 school year (IH #215155).

23. The DOE did not make an appearance to defend their placement and the IHO found that [REDACTED] was an appropriate placement and awarded full tuition.

24. For the current school year, an IEP meeting was held on March 7, 2022.

25. I attended this meeting with his [REDACTED] teacher at that time.

26. This meeting was frustrating. [REDACTED], the DOE's district representative, appeared to believe that [REDACTED] had not made progress with reading and opined as such at the meeting. She kept saying that [REDACTED]'s reading gap had widened.

27. The [REDACTED] team explained that he was making progress.

28. I, as his parent, disagreed with the representation that [REDACTED] wasn't making progress academically, or specifically in reading. I'm on top of his homework, reading and closely monitor his progress. I stated that he was indeed making progress.

32. The DOE did not conduct any assessment of [REDACTED] before the meeting or after.

33. Eventually, the DOE recommended a 12:1 placement on the IEP. They made this recommendation without any assessments, classroom observations, or even meeting him.

34. On March 14, 2022, we received a School Location Letter for [REDACTED] for PS [NUMBER]. We had toured and assessed PS [NUMBER] multiple times and returned again in June 2022. After this visit we wrote to CSE 8 on June 17, 2022, expressing our same concerns that PS [NUMBER] is inappropriate for [REDACTED] because it features large class sizes, does not have a reading specialist on staff, and no established program for students with dyslexia. Additionally, PS [NUMBER] doesn't offer 6th grade education and was still not appropriate for [REDACTED].

35. My husband and I wanted to get a clear picture of [REDACTED]'s needs. In June 2022, we had [REDACTED] evaluated by Dr. [REDACTED].

36. Dr. [REDACTED] conducted a thorough evaluation of [REDACTED]. She diagnosed him with specific learning disorders in math, reading, and writing, as well as ADHD, anxiety disorder and depression.

37. Dr. [REDACTED] recommended psychiatric and psychological support. We immediately started [REDACTED] in therapy once per week and he began medication. He continues weekly therapy sessions, and his medication is monitored through monthly doctor appointments. He currently takes Concerta and Guanfacine.

38. When we received Dr. [REDACTED]'s report in June, we sent it to the DOE. We received no response.

39. We didn't hear from the DOE again until we received a school recommendation on August 31, 2022, months after we submitted the evaluation. This was really late given that it was the very end of the summer just before the start of the school year, and no one was available at the school, nor could we visit.

40. The IEP recommendation had not changed at all after receiving Dr. [REDACTED]'s evaluation. As far as I can tell, no one at the DOE reviewed the new evaluation. [REDACTED] had received new diagnoses of anxiety and depression and this was not addressed.

47. At the beginning of the school year, when it was determined that [REDACTED] would continue on to [REDACTED]'s middle school, Dr. [REDACTED] met with [REDACTED] staff to explain her recommendations for support for [REDACTED], including his anxiety and depression.

48. She opined that MMFS was a school that was meeting [REDACTED]'s needs.

50. So far in the 2022-23 school year,[[REDACTED] has made tremendous growth. This is his first year with medication management and regular therapy sessions. He's much more focused and able to execute a plan. He feels confident and is making more friends. Outside of school he's excelling in track. This fall he ran cross-country and qualified for Junior Olympics in College Station, TX. (P-Q)

The DOE declined to cross examine the student’s mother. (T-301 Accordingly, her testimony in this case is uncontroverted.

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])

The IDEA directs that, in general, an impartial hearing officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE. (See 20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction." (See Rowley, 458 U.S. at 203) However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP." (See Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998] and Rowley, 458 U.S. at 189) The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents." (See Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted] and Grim, 346 F.3d at 379) Additionally, school districts are not required to "maximize" the potential of students with disabilities. (See Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379 and Walczak, 142 F.3d at 132) Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement.'" (See Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008] and Perricelli, 2007 WL 465211, at *15) The IEP must be "reasonably calculated to provide some 'meaningful' benefit." (See Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997] and Rowley, 458 U.S. at 192) The student's recommended program must also be provided in the least restrictive environment (“LRE”). (See 20 U.S.C. § 1412[a][5][A]; 34 C.F.R. §§ 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009] and Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 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 Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.

No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. (See Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65).

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)

DENIAL OF ‘FAPE”

As noted above, 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]). Here, although the DOE argued that the student was severely delayed and not doing well at the private school, it used an outdated evaluation at the student’s March IEP meeting, and refused to re-convene the IEP meeting in June, when it received the student’s current independent and comprehensive Neuropsychological Evaluation. (D-2, D-8 & P-E) The DOE district representative at the IEP meeting conceded that a student is to be evaluated at least every three years, unless the parent requests an evaluation at a sooner time and that 2018 and 2022 are more than three years apart. (T149) She also conceded that the “SESIS” log indicates that on June 27th, (“2022”, see Parent’s Exhibit “E”), she received a neuropsychological report from the Parents. (T-153) She reviewed the neuropsychological report. (T-154) The witness responded, “I don’t know” when asked if she held another IEP meeting in response to her receipt of the new neuropsychological evaluation. (T-155) She asserted that an IEP is only required to be reviewed once a year. (T-157) It is apparent to the undersigned that there was opportunity for a reconvening of the IEP meeting that was held in March 2022, to update that IEP prepared before the beginning of the 10-month 2022-2023 school year in September of 2022. (T-159-60)

A school district must conduct an evaluation of a student where the educational or related services needs of a student warrant a reevaluation or if the student's parent or teacher requests a reevaluation. (See 34 CFR 300.303[a][2] and 8 NYCRR 200.4[b][4]) However, a school district need not conduct a reevaluation more frequently than once per year unless the parent and the district otherwise agree and must conduct one at least once every three years unless the district and the parent agree in writing that such a reevaluation is unnecessary. (See 8 NYCRR 200.4[b][4] and see 34 CFR 300.303[b][1][2])

A CSE may direct that additional evaluations or assessments be conducted in order to appropriately assess the student in all areas related to the suspected disabilities. (8 NYCRR 200.4[b][3]) An evaluation of a student with a disability must use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the student, including information provided by the parent that may assist in determining, among other things the content of the student's IEP. (See 20 U.S.C. § 1414[b][2][A], 34 CFR 300.304[b][1][ii] and Letter to Clarke, 48 IDELR 77 [OSEP 2007])

In particular, a school district must rely on technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors. (See 20 U.S.C. § 1414[b][2][C], 34 CFR 300.304[b][3] and 8 NYCRR 200.4[b][6][x]) A school district must ensure that a student is appropriately assessed in all areas related to the suspected disability, including, where appropriate, social and emotional status. (See 20 U.S.C. § 1414[b][3][B], 34 CFR 300.304[c][4] and 8 NYCRR 200.4[b][6][vii])

An evaluation of a student must be sufficiently comprehensive to identify all of the student's special education and related services needs, whether or not commonly linked to the disability category in which the student has been classified. (See 34 CFR 300.304[c][6] and 8 NYCRR 200.4[b][6][ix])

New York State regulations require the CSE to “arrange for an appropriate reevaluation of each student with a disability if the school district determines that the educational or related services needs, including improved academic achievement and functional performance of the student, warrant a reevaluation or if the student's parent or teacher requests a reevaluation.” (See 8 NYCRR 200.4[b][4], 20 U.S.C. § 1414[a][2][A] and 34 CFR 300.303[a]) Furthermore, if the school district refuses to conduct evaluations of a student in response to a parental request, the district must provide the parent with prior written notice - consistent with State and federal regulations - including a description of the determination it made and the reasons for its determination. (See 8 NYCRR 200.5[a], [a][4] and 34 CFR 300.503)

Pursuant to Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008), a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student. In developing the recommendations for a student's IEP, the CSE must consider the results of the initial or most recent evaluation; the student's strengths; the concerns of the parents for enhancing the education of their child; the academic, developmental, and functional needs of the student, including, as appropriate, the student's performance on any general State or district-wide assessments, as well as any special factors as set forth in federal and State regulations. (See 34 CFR 300.324[a]; 8 NYCRR 200.4[d][2]) Subject to certain exceptions, a school district must obtain informed parental consent prior to conducting an initial evaluation or a reevaluation. (See 34 CFR 300.300[c]; 8 NYCRR 200.5[b][1][i]; Letter to Sarzynski, 51 IDELR 193 [OSEP 2008]) and provide adequate notice to the parent of the proposed evaluation. (See 8 NYCRR 200.5[a][5])

Additionally, a CSE must consider independent educational evaluations obtained at public expense and private evaluations obtained at private expense, provided that such evaluations meet the district's criteria, in any decision made with respect to the provision of a FAPE to a student. (See 34 CFR 300.502[c]; 8 NYCRR 200.5[g][1][vi]) However, consideration does not require substantive discussion. (See T.S. v. Ridgefield Bd. of Educ., 10 F.3d 87, 89-90 [2d Cir. 1993] citing G.D. v. Westmoreland Sch. Dist., 930 F.2d 942, 947 [1st Cir. 1991]; see Evans v. Dist. No. 17, 841 F.2d 824, 830 [8th Cir.1988]; K.E. v. Indep. Sch. Dist. No 15, 2010 WL2132072, at *19 [D. Minn. May 24, 2010]; James D. v. Bd. of Educ. of Aptakisic-Tripp Cmty. Consol. Sch. Dist. No. 102, 642 F. Supp. 2d 804, 818 [N.D. Ill. 2009])

In this case, the record is clear that the DOE violated all of the aforementioned requirements regarding “evaluations” and their relationship to the proper conduct of an IEP meeting. Under the facts and circumstances of this case, there is no justifiable reason for the DOE’s failure in this regard. I find these violations fatal to the DOE’s claim that it offered the student a FAPE for the 2022-2023 school year.

APPROPRIATENESS OF THE PRIVATE SCHOOL

I next turn to the appropriateness of the student’s placement at the private school for the 2022-2023 school year. Here, the Parents need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of the student, supported by such services as are necessary to permit him to benefit from instruction. (See Gagliardo & Frank G., supra)

The law does not require that the Parents’ placement be perfect, it only requires that the Parents’ placement be appropriate. (See Warren G. v. Cumberland County Sch. Dist., 190 F.3d 80, 84 (3d Cir.1999) (holding that “the test for the parents' private placement is that it is appropriate, and not that it is perfect”)

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) The often-cited language from the Endrew F. case, citing the 10th Circuit’s long standing case law that an IEP is adequate as long as it is intended to provide “merely more than de minimis” benefits, replaced by the United States Supreme Court with a tougher standard that requires schools to provide a program that is ”appropriately ambitious in light of the child’s circumstances”, applies to school district’s, not to Parents and does not require public schools themselves to give children with disabilities an opportunity to (among other things) “achieve academic success” and “attain self-sufficiency. (See Endrew F. v. Douglas County Sch. Dist. RE-1, 580 U.S. __, 137 S. Ct. 988, 998-1001 [2017]) Certainly, a higher standard is not required to adjudge the appropriateness of the Parents’ unilateral placement.

The “reasonableness” standard to adjudge the appropriateness of the Parent’s unilateral placement is well below the other established standards of review in the law such as “beyond a reasonable doubt”, “clear and convincing evidence”, “preponderance of the evidence” and “substantial evidence.” It is perhaps equivalent to the “rational basis” standard of review. The record supports a finding that the private school meets the ”reasonable” standard for a finding that it was an appropriate placement for the student’s 2022-2023 school year.

The student’s comprehensive Neuropsychological Evaluation dated June 9, 2022 makes the following findings:

[REDACTED] has significant learning, attentional, and emotional issues that have made a traditional classroom setting a challenging place for him to learn and placed him behind what his teachers expect from students his age. He requires an intensive, individualized support in a small, full-time special education environment, where he is taught to his specific learning needs. His current IEP has him in a 12:1 program. However, there is nothing on the IEP which indicates the need for Orton Gillingham, multisensory math, or writing instruction that is geared towards Leo’s needs. Therefore, it is an inappropriate IEP at this time. Further, the language around the type of programming considered is somewhat confusing. They both suggest and reject a placement in a 12:1 setting. (P-E)

The uncontroverted testimony of the private school’s Middle School Speech Language Pathologist and CSE Coordinator describes a program that mirrors the Neuropsychological Evaluation’s recommendations. (P-O) The student is in a class of 11 students, with two teachers, the head teacher of which has a masters degree and is a New York State certified teacher, the associate teacher is currently completing her masters degree in special education and the student receives weekly language therapy one time a week in small group pull out session and one time a week as a push-in into an academic class. Additionally, his literacy teacher holds a masters degree in speech language pathology. (PO) His literacy group meets five times a week for 60 minutes and he also has access to direct and indirect occupational therapy, one-on-one teacher support, as well as small group learning. (Id.)

The student is said to have made great strides in his decoding, encoding, comprehension, math and writing skills, while benefiting from small classes, preferential seating near the teacher, opportunities for repeated exposure and practice of skills, multi-sensory modes of internalizing new information and skills, and frequent teacher focus prompts and OT supports to ensure engagement and attention to task. (Id.) All of the Parents’ testimonial evidence, and the documentary evidence submitted supports these conclusions. It also supports the finding that the private school is an appropriate placement for the student’s 2022-2023 school year.

There is nothing in the record that sustains a finding that the Parents have not cooperated with the CSE. Therefore, I find that equitable considerations do not bar an award of tuition reimbursement to the Parent. For all of the reasons stated herein, I find that the Burlington/Carter test is satisfied in favor of the Parent and that she has met her burden under Schaffer to prevail in her request for tuition reimbursement. NOW therefore, it is hereby ORDERED that upon its receipt of reasonably satisfactory proof of services having been rendered, the DOE shall either reimburse the Parent and/or directly pay the cost of the student’s expenses, tuition and related services at the private school for the entirety of the student’s 2022-2023 school year (T-8-9 & 33); and it is further ORDERED that the DOE shall also conduct a re-evaluation of the student in all areas of his suspected disabilities, not evaluated within the last two years, for the 2023-2024 school year; and it is further ORDERED that the CSE shall forthwith reconvene after the completion of the student’s evaluations and consider all of the student’s evaluations and any other relevant information and produce a new IEP for the student’s 2023-2024 school year; and it is further ORDERED that any of the other relief sought by the Parent not addressed by this decision is found to be either agreed upon by the parties, withdrawn by the Parent, outside the scope of the IHO’s authority or unsupported by the record.

DATED: April 20, 2023

New York, New York Edgar De Leon - 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