New York City Department of Education, Impartial Hearing Decision

CORRECTED [REDACTED] FINDINGS OF FACT AND DECISION

Case No.: 583510 – NYC:235231

Student’s Name: [REDACTED]

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Requested By: [REDACTED]

Dates of Hearing: December 6, 2022 and December 13, 2022

Record Close Date January 23, 2023

Hearing Officer: Alena Weiserbs, Esq.

Date of Decision: April 14, 2023

NAMES AND TITLES OF PERSONS WHO APPEARED

AT THE MERITS HEARING ON DECEMBER 6, 2022

For the Student:

[REDACTED], Attorney

[REDACTED], Parent Student

[REDACTED], Director of [REDACTED]

For the Department of Education:

[REDACTED], Agency Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED

AT THE MERITS HEARING ON DECEMBER 13, 2022

For the Student:

[REDACTED], Attorney

[REDACTED], Parent Student

For the Department of Education:

[REDACTED], Agency Attorney

INTRODUCTION

On November 20, 2022, New York City Department of Education (“District”) appointed me to act as the Impartial Hearing Officer (“IHO”) for due process complaint (“DPC”) number

235231 brought by [REDACTED] (“Parent”) on behalf of [REDACTED] (“Student”) filed on September 8, 2022 through her attorney [REDACTED] of the Law Office of [REDACTED] (“Parent’s Attorney”). The issues to be determined at this hearing are whether: (1) the District denied the Student a Free Appropriate Education (“FAPE”) for the 2020 to 2021, the 2021 to 2022 and the 2022 to 2023 school years; (2) the District has failed to evaluate the Student in all areas of suspected disability; (3) the District failed to provide the Parent with Prior Written Notice; (4) the District shall fund an independent neuropsychological evaluation at the public’s expense; (5) whether the Committee on Special Education (“CSE”) shall convene a IEP meeting within sixty days of this Finding of Facts and Determination to create a new IEP; (6) the District shall fund compensatory services in the form of tutoring; (7) the Parent shall be reimbursed for the cost diagnostic testing and other related fees; (8) whether the Student shall receive metro cards and/or other forms of transportation to and from tutoring; and (9) for other relief as warranted.

The District was represented by [REDACTED], Esq.

The hearing was held on December 6, 2022 and on December 13, 2022. All parties were represented by counsel. The District presented a short opening statement, District Exhibit’s “One” and “Three” through “Six” were admitted into evidence, but did not present a direct case in chief, effectively conceding that the student was denied a FAPE (See transcript, T 6 & 10-13) ^[1]. The Parent’s attorney presented an opening statement and Parent’s Exhibits “A” through “H” were admitted into evidence without objection from the District (T 7-10 & 13-15). The Parent and [REDACTED], Director at the [REDACTED] (“Director”) testified at the hearing through affidavit and direct testimony on behalf of the Parent. The District cross-examined the Director (T 28-40). The Parent presented a closing statement (T 12/13/22 4-6). The District likewise presented a closing statement (T 12/13/22 6-9).

Although only portions of the evidence are referenced herein, I have reviewed the testimony and documents in full.

JURISDICTION

This decision is rendered pursuant to the Individual with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq., and its implementing federal regulations, 34 C.F.R. § 300 et seq.; § 504 of the Rehabilitation Act of 1973; and New York State Education Law § 4404 et seq. and its implementing regulations at 8 NYCRR § 200.5 et seq.

BACKGROUND AND POSITIONS OF THE PARTIES

The Student is [REDACTED] [REDACTED] year-old female third grader who attended the [REDACTED] (“Public School One”) in first grade during the 2020 to 2021 school year and in the second grade during the 2021 to 2022 school year and began attending [REDACTED] (“Public School Two”) for the third grade in September of 2022 (P-A1 & H1). The District first referred the Student to be evaluated for learning disabilities in December of 2021 (P-H1). The District conducted a psychological evaluation on February 22, 2022 (P-C). The Student was classified with a learning disability on March 11, 2022 at the Individualized Education Program (“IEP”) meeting (Id. & D 1-1). The March 2022 IEP describes that student as having a pre-kindergarten reading and math level, and an extremely low range for reading comprehension, and a very low range for word reading and math problem-solving skills (P – C2; D 1-4 &17). Cognitive results show the Student to be in the average and below average-range (P-C & D1-2). Her verbal reasoning skills are average, but “her inductive and deductive reasoning skills [are ] in the below average range” (D 1-2). The IEP reveals that Student has difficulties decoding words, comprehending text and spelling (D 1-4). Assessments suggest high levels of maladjustment, attention problems and hyperactivity (Id.). The March 2022 IEP recommends special education programs and services as follows: integrated co-teaching services in math five periods per week; integrated co-teaching services in ELA ten periods per week; integrated co-teaching services in social studies three periods per week and integrated co-teaching services in science two periods per week (D 1-13). An Integrated Evaluation conducted on August 23, 2023 diagnosed the Student with attention-deficit/hyperactivity disorder and recommended integrated co-teaching classroom with Special Education Teacher Support Services (“SETSS”) or private tutoring as well as to consider cognitive behavioral therapy (D 6-8 & 9). Said report was provided to the District and the IEP was not amended (D 6).

The Student received a promotion in doubt at the end of the 2021 to 2022 school year (PH3). She has a history of poor grades in her academic classes and has been struggling at public school (P-H 3-4). The Student did not receive direct instruction for several months during Covid P-H3). The Parent has testified that the Student has not been making meaningful progress in school in the District’s placements (P-H2). Parent asserts that the Student has not received adequate academic help and supports at the public schools despite expressing her concerns about her daughter’s learning difficulties (Id.). The Parent maintains that the District (1) failed to evaluate the Student in all areas of disability; (2) failed to provide her with the required information regarding her rights as a Parent of a Student with a disability; (3) deprived the Parent of an opportunity to meaningfully participate in her child’s development; (4) failed to provide the Student with a FAPE; and (5) that the current placement in an integrated co-teaching classroom is insufficient for her to make meaningful progress (P-H 3-4). The Parent testified that the Student is behind in Public School Two; that she cannot read and that she has not made any progress since the start of the school year in the co-teaching classroom (T 20-21); and that she has not made any progress since first grade (T 21).

The Parent sought tutoring from the Huntington Learning Center (“Center”) and was evaluated in August of 2022 (P-D). The Center administered numerous diagnostic tests and found that the Student was operating three years behind grade level in verbal ELA and math along with significant gaps in her academic skills in all areas (P-G2). The Director testified that the Student lacks the ability to succeed at grade level exams because of her severe educational deficits (P-G6). The Parent seeks 683 hours of individual tutoring as recommended by the learning center as compensatory relief to enable her to make meaningful progress in school along with a comprehensive neuropsychological evaluation and any other relief that is warranted by this IHO (P- A5 & G8).

FINDINGS OF FACT AND DECISION

A school district is required to actively seek out, identify, locate, and evaluate all children with disabilities who need special education and related services, regardless of the severity of the disability, including those individuals advancing from grade to grade. (20 U.S.C. §1412(a)(3)(A); Ed. Code, §§ 56171, 56301, subds. (a) and (b).) The duty to seek and serve children with disabilities is known as "child find." A district's child-find obligation toward a specific child is triggered when there is reason to suspect a disability and reason to suspect that special education services may be needed to address that disability. Dept. of Education, State of Hawaii v. Cari Rae S. (D. Hawaii 2001) 158 F.Supp.2d 1190, 1194. The threshold for suspecting that a child has a disability is relatively low. Id. at p. 1195. A district's appropriate inquiry is whether the child should be referred for an evaluation, not whether the child qualifies for services. Ibid.

Either a Parent's suspicion or a district's suspicion may trigger the need for a child-find initial evaluation to determine if the student is a child with a disability within the meaning of the IDEA. Pastime by Pasatiempo v. Aizawa (9th Cir. 1996) 103 F.3d 796, 802. The identification of children who may have disabilities should be a cooperative and consultative process. Id. at

802. Pasatiempo noted that, "Department of Education determinations alone should not be determinative." Id. The suspicions of parents, who may have consulted with outside experts, should trigger the statutory protections." Id.

A district has an obligation to find and evaluate a child with a suspected disability "within a reasonable time after the district is on notice of facts or behavior likely to indicate a disability." Dallas Indep. Sch. Dist. v. Woody, 865 F. 3d 365, 320 (5th Cir. 2017). "An unreasonable delay in complying with this duty may constitute a procedural violation of the IDEA." Krawietz v. Galveston Indep. Sch. Dist., 900 F.3d 673, 676 (5th Cir. 2018).

The IDEA provides that children with disabilities are entitled to a FAPE (20 U.S.C. § 1400 [d][1][A]. A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensively written IEP (34 C.F.R. §300.13). Specifically designed instruction must meet the child’s unique needs in all aspects of their education during classroom instruction and prepare them for further education, employment, and independent living. See generally, Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 (2009); Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 188, 206-7 (1982); U.S.C. § 1400[d][1][A]-[B].

A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits. Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 1982). In order to meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances”. Endrew F. v. Douglas County Sch. Dist. RE-1, No 15-827, 137 S.Ct. 988, U.S. (Mar 22, 2017).

Decisions of impartial hearing officers must be on substantive grounds based on a determination whether a student received a FAPE, 8 NYCRR § 200.5(j)(4)(i), except as follows:

In matters alleging a procedural violation, an impartial hearing officer may find that a student did not receive a free appropriate public education only if the procedural inadequacies impeded the student’s right to a free appropriate public education, significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provision of a free appropriate public education to the parent’s child, or caused a deprivation of educational benefits. Nothing in this paragraph shall be construed to preclude an impartial hearing officer from ordering a school district to comply with procedural requirements under this Part and Part 201 of this Title 8 NYCRR § 200.5[j][4][ii]. This means that local educational agencies (school districts) are obligated to implement “extensive procedural requirements to protect the rights of the parents, guardians, and the child, including the right to be notified, inter alia, of a change in the child’s educational placement.” Rowley at 183. School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement (NYS Educ. Law § 4404[1][c]). To meet its burden of proof, the School District must demonstrate that to provide the student with a FAPE, he or she will derive an educational benefit from that instruction to “achieve passing marks and advance from grade to grade” to “enable the [student] to be involved in and make progress in the general education curriculum.” Rowley, 458 U.S. 204; and Endrew F, 137 S.Ct. 988, 994 (2017). This personalized instruction “must be appropriately ambitious in light of [the student’s] circumstances.” Id. at 1000. In addition to evaluating the uniqueness of an individual student, the IEP must open the door of public education to a disabled child in a meaningful way such that it is likely to produce progress, “not regression, or only “trivial advancement”. Id.; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 195 (2d Cir. 2005) Walczak, 142 F.3d 119, 130 (2d Cir. 1998) & P. v. Newington Bd. Of Edu., 546 F.3d 111, 119 (2d Cir. 2008).

A board of education may be required to pay for educational services obtained for a child by the child’s parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent’s claim. School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]; see also Frank G. and Dianne G. v. Bd. Of Educ. Of Hyde Park,459 F.3d 356 (2d Cir. 2006), cert denied, Board of Educ. Of Hyde Park Cent. School Dist. V. Frank G.,2007 WL 2982269 (Oct. 15, 2007).

In the case before me, the District failed to actively seek out, identify, locate, and evaluate the Student even though her academics were not advancing from grade to grade. She was promoted to first and second grades while her academics remained at a pre-kindergarten instructional level. The Student’s lack of academic progress should have triggered the District to refer the Student for an evaluation. While the District neglected the apparent need for the Student’s evaluation, the District also ignored the Parent’s concerns that her daughter had a learning disability in that they were unresponsive to Parent’s request for more assistance for the Student during the 2020-2021 school year and for part of the 2021-2022 school year (P-H2). The Parent, who was not adequately informed of the CSE process or her rights as a parent with a child with a disability, referred the Student to the CSE in the Fall of 2021, and was provided with an IEP in March of 2022 (Id. 2 & 4). The District unequivocally failed their child find duties. This Student should have been referred for an evaluation by the District when she was not making academic progress, but was not: Once the Parent raised concerns over her daughter’s lack of progress, this should have triggered an evaluation of the Student. Further, once the Parent requested a referral to the CSE, the evaluation should have occurred within a reasonable period of time, which it did not (Id.). Thus, the Student was denied a FAPE on procedural grounds for the 2020 to 2021 and 2021 to 2022 school years.

The District also denied the Student a FAPE on substantive grounds because the March 2022 IEP failed to provide specifically designed instruction to meet the Student’s unique needs and was not calculated to enable the Student to make academic progress. The Supreme Court has found that “[a] reviewing court may fairly expect those authorities [school district staff] to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.” Endrew F. 137 S. Ct. 988 at 1002.

Here, the District offered absolutely no explanation, let alone a cogent and responsive explanation, for the Committee on Special Education’s (“CSE”) failure to properly identify the Student as having a disability as she advanced from grade to grade without making academic progress. The District ignored Parent’s concerns about the Student’s lack of progress as she advanced from grade to grade, creating a situation where she could not succeed in academically and fell further behind. When the District finally did identify the Student as having a learning disability and convened to create a program for her, it failed to offer an IEP that would enable the Student to make meaningful progress.

The Student’s first IEP convened in March of 2022 when the Student was nearing the end of second grade, but academically was at a pre-kindergarten grade level (P-B19). Once the District identified this Student as having a disability in the second grade, she was three grade levels behind academically. A student who is three years behind in grade level - at a prekindergarten level in reading and math - cannot be reasonably expected to succeed in a thirdgrade class without substantial individual supports and structures, which the March 2022 IEP did not provide.

The CSE relied on its February 6, 2022 psychoeducational evaluation at the march IEP meeting. Although it identified the basic areas of the Student’s deficiencies, this evaluation was not comprehensive enough to recommend the necessary tools, supports or educational programs to enable her to make meaningful progress concerning her disabilities, and as a result, limited its special education supports recommendations. For example, although the February 6, 2022 psychoeducational evaluation acknowledged that the Student had a scaled score in the clinically significant range for maladjustment, attention problems and hyperactivity, the March 2022 IEP failed to address these issues. The CSE should have recognized that more comprehensive evaluations were needed to create an appropriate educational program for the Student and should have been more reflective in creating this Student’s special education program.

The District’s failure to sustain its burden of proving and persuasion, leads me to find that

the Student was denied a FAPE for the 2020 to 2021, 2021 to 2022 and 2022 to 2023 school years. The District did not find and evaluate the Student within a reasonable time frame, which rose to a procedural violation of the IDEA. This Student, at the start of the 2020 to 2021 school year, should have been evaluated for a disability, if not sooner, given that her academic reading and math levels were at a pre-kindergarten level when she was first evaluated in the second grade. The District has yet to properly identify and evaluate the Student in all areas of disability. The District when provided the additional August 23, 2022 evaluation, which recommended SETSS or tutoring in addition to an ICT classroom as well as considering cognitive behavioral therapy, did not reconvene an IEP meeting in response to this information (D 6-8).

The Student’s inability to progress with public school’s program suggests that the Student requires individual supports or instruction in small groups in a small, highly structured non-public school in order to make academic progress. This is because the public school programs were not reasonably calculated to receive educational benefits, and the Student continues to not make progress at the Public School. Here, the District failed to comply with substantive requirements of the IDEA and New York Education Law and this failure rises to a level of gross negligence.

The District has not, therefore, met its burden of proof in this proceeding. The District did not offer the Student a FAPE for the 2020 to 2021, 2021 to 2022 and 2022 to 2023 school years.

COMPENSATORY SERVICES

Compensatory education is an appropriate remedy under the IDEA. P. v. Newington, 546 F.3d. 111 (2nd Cir. 2008). The aim of compensatory education services is to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA. See, Reid v. District of Columbia, 401 F.3d 516, 518 (D.C. Cir. 2005) (finding that compensatory education is not a form of damages because the courts act in equity when remedying IDEA violations and must “do equity and …mold each decree to the necessities of the particular case”). When fashioning a compensatory award, it is appropriate to look at the specific educational deficits resulting from a child’s loss of FAPE, to ascertain what compensatory measures are appropriate to make the child whole. Id.; Mrs. C. v. Wheaton, 916 F.2d 69 (2d Cir. 1990).

Compensatory education is an equitable remedy tailored to meet the unique circumstances of each case. See, Wenger v. Canastota, 979 F. Supp. 147 (N.D.N.Y. 1997); SRO Appeal 14-179. Within the Second Circuit, compensatory relief in the form of supplemental special education or related services has been awarded to students if there has been a denial of a FAPE. See, Newington, 546 F.3d at 123 ("[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and . . . compensatory education is an available option under the Act to make up for denial of a [FAPE]"). Likewise, SROs have awarded compensatory "additional services" to students who have been denied appropriate services, if such deprivation can be remedied through the provision of additional services before the student becomes ineligible for special instruction because of age or graduation. See, Bd. of Educ. v. Munoz, 16 A.D.3d 1142 (4th Dep't 2005) (finding it proper for an SRO to order a school district to provide "make-up services" to a student upon the school district's failure to provide those educational services to The Student during home instruction); see also, Application of the Dep't of Educ., Appeal No. 13-048; Application of a Student with a Disability, Appeal No. 11-091). The purpose of an award of additional services, like compensatory services, is to provide an appropriate remedy for a denial of a FAPE and accordingly, aim to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA. See, Newington, supra.

Here, based on the facts above, I find that the Student is entitled to compensatory services to place the Student in the position she should have been in, if she had received the educational supports and services required by the Student to address her learning disabilities for the last three school years cause by the District’s FAPE denial. Although the District argued in its closing statement that the Center’s evaluation and recommendations for 683 hours were inappropriate because the Center’s evaluation took three hours and “did not provide a holistic picture of the Student’s unique needs and challenges, other than the assessments that her organization administered” (T [12/3/22] 9). Such a conclusory statement by the District without supporting evidence or testimony derived from presenting a case in chief -which the District did not presentis insufficient to meet their burden of proof. The Center’s evaluation based on empirical testing along with the Director’s testimony, which corroborated the Student’s deficits and learning needs, established that 683 hours of tutoring is appropriate to bring the Student to the academic levels she would have achieved, but for the FAPE deprivation (P F & G). The Center credibly determined that the Student requires 168 hours in reading instruction, 120 hours in phonics, 135 hours of vocabulary/word attack/spelling instruction, 60 hours of writing/language arts instruction and 200 hours of math instruction is required for remediation (P-E1). From the documentary evidence and testimony reviewed, I find that the Center’s recommendation of 683 hours is appropriate due to Student’s extensive remediation needs caused by the extended three-year period in which the District denied the Student a FAPE. This award should place the Student in the position they would have been in if the District had complied with its obligations under the IDEA and New York State Education Law.

INDEPENDENT EVALUATION REQUESTS

An independent educational evaluation (an “IEE”) is defined under the IDEA as “an evaluation conducted by a qualified examiner who is not employed by the public agency responsible for the education of the child in question.” 34 CFR 300.502(a)(3)(i). An IEE is similarly defined in New York under the Regulations of the Commissioner of Education in 8 NYCRR § 200.1(z). “If the parent disagrees with an evaluation obtained by the school district, the parent has a right to obtain an independent educational evaluation at public expense, 8 NYCRR § 200.5(g)(1). The Supreme Court in Shaffer v. Weast, 546 U.S. 49, 60-61 (2005) emphasized that parents have the right to review all records that the school possesses in relation to their child. [20 U.S.C.] § 1415 (b)(1). They also have the right to an “independent educational evaluation of the[ir] child.” Ibid. The regulations clarify this entitlement by providing that a “parent has the right to an independent educational evaluation at public expense if the parent disagrees with an evaluation obtained by the public agency.” 34 CFR § 300.502(b)(1) (2005). IDEA thus ensures parents access to an expert who can evaluate all the materials that the school must make available, and who can give an independent opinion. They are not left to challenge the government without a realistic opportunity to access the necessary evidence, or without an expert with the firepower to match the opposition.

An IEE may be requested by parents pursuant to 8 NYCRR § 200.5(g)(1) or by an impartial hearing officer pursuant to 8 NYCRR § 200.5(g)(2). If parents request an IEE at public expense, “the school district must, without unnecessary delay, either ensure an independent educational evaluation is provided at public expense or file a due process complaint notice to request a hearing to show that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria” 8 NYCRR § 200.5(g)(1)(iv).

The Regulations do not provide limitations or guidance about hearing officer requests or directives for IEEs.

Although the school district may “ask for the parent’s reason why he or she objects to the public evaluation,” such explanation “may not be required, and the school district may not unreasonably delay either providing the independent educational evaluation at public expense or filing a due process complaint notice to request a hearing to defend the public evaluation.”

N.Y.C.R.R. § 200.5(g)(1)(iii). “Federal law provides no specific authorization for imposing any preconditions on the exercise of the parent’s right to obtain an IEE at public expense.” Letter to Kirby, 213 IDELR 233 (OSERS, 1989). Under the Part 200 regulations, “[a] school district may not impose additional conditions or timelines related to obtaining an independent educational evaluation at public expense [emphasis added]” 8 N.Y.C.R.R. § 200.5(g)(1)(ii). This is the same under the federal regulations: (1) If an independent educational evaluation is at public expense, the criteria under which the evaluation is obtained, including the location of the evaluation and the qualifications of the examiner, must be the same as the criteria that the public agency uses when it initiates an evaluation, to the extent those criteria are consistent with the parent’s right to an independent educational evaluation.

(2) Except for the criteria described in paragraph (e)(1) of this section, a public agency may not impose conditions or timelines related to obtaining an independent educational evaluation at public expense [emphasis added]. 34 C.F.R. § 300.502(e).

Further, the school district has the burden of proving that the cost of the parent’s evaluation is unreasonable. Schaffer v. Weast, supra.

Here, the District did not reply to the Parent’s request for an IEE or file a DPC to show that its evaluation was appropriate. As such, the Parent is entitled to the requested independent neuropsychological evaluation. The District must fund the requests for the evaluation at the provider’s ordinary rate. I note that the District has no basis for denying the Parent’s request for an independent neuropsychological evaluation. I also find that based on a thorough review of the record, the Student requires and independent auditory processing and speech-language evaluations because of the significant phonetic and auditory processing deficits identified by the Center (P-G4). I find these independent evaluations necessary to determine an appropriate educational program for the Student. Therefore, this IHO finds that the Student is entitled to an independent neuropsychological, speech-language and auditory processing evaluation paid for at the public expense based on the Parent’s credible evidence and testimony.

ORDER

NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED that the District is directed to provide and fund a bank of compensatory services for 683 hours of individual reading, writing, spelling, vocabulary, and math to be provided by duly certified special education teachers and/or a licensed professional in his or her respective field; IT IS HEREBY ORDERED that the Parent may use the Center or any other Provider of their choosing for the 683 hours of compensatory services; IT IS HEREBY ORDERED that the District is directed to pay the Provider at their standard ordinary rate for compensatory services; IT IS HEREBY ORDERED that the District shall directly pay $295.00 to the Center for the cost of diagnostic testing and $100.00 for the Center’s standard registration fee; IT IS HEREBY ORDERED that that the District is directed to fund an independent neuropsychological evaluation, an independent auditory processing evaluation and a speech language evaluation of the Parent’s choosing at that Provider’s standard rate; IT IS HEREBY ORDERED the District is directed to provide the Student and Parent with metro cards or OMNY cards for transportation to and from the compensatory services and independent evaluations; IT IS HEREBY ORDERED that that the District is directed to pay the Provider within 15 days of submission of the Provider’s invoice; IT IS HEREBY ORDERED that the Committee on Special Education is directed to reconvene the Student’s IEP within 15 days of the Parent’s request to develop an appropriate placement in a small structured class setting in a non-public school to address the Student’s attention deficit and hyperactive disorder as well as the Student’s reading, writing, decoding and language needs, and the CSE is further directed to defer the Student’s Placement to the Central Based Support Team (the “CBST”) for a nonpublic school placement within seven (7) days of said IEP meeting and placement shall be made in compliance with 8 NYCRR 200.4(e); IT IS HEREBY ORDERED that the CSE must review and consider the recommendations of the Student’s independent evaluators when developing the IEP should the Parent decide to wait for the IEP team to convene until after the independent evaluations are completed; and it is further

ORDERED that the Student shall be provided with individual special education support services for five periods per week from the date of this Order until such time that the IEP meeting convenes to recommend an appropriate nonpublic school placement.

Dated: April 14, 2023

Alena Weiserbs

Impartial Hearing Officer

DISTRICT EVIDENCE

EXHIBIT DATE NAME PAGES

1. Individualized Education Program March 11, 2022 19 pages DOE

2. Individualized Education Program March 11, 2022 20 pages DOE

3. Psychoeducational Evaluation Report February 6, 2022 6 pages DOE

4. Classroom Observation February 6, 2022 1 page DOE

5. Prior Written Notice March 17, 2022 6 pages DOE

6. Montefiore Integrated Evaluation August 23, 2022 9 pages DOE

PARENT EVIDENCE

A. Parent Title Date Pages Date Admitted I.D. Impartial Hearing Request 9/8/22 5pp.

B. Individualized Education Program 3/11/22 21pp.

C. Psychological Evaluation Report 2/22/22 6pp. D [REDACTED] Center Student 8/26/22 3pp. Academic Evaluation Results E [REDACTED] Center Individualized 8/26/22 3pp. Prescribed Hours F [REDACTED] Center Student Test 8/26/22 30pp. Results G [REDACTED] Center Administrator 11/28/22 14pp. Affidavit: [REDACTED]

H. Parent Affidavit: [REDACTED] 12/4/22 5pp.

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or or the Public School District has 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 of with the Office of State Review of the State Education 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 the Part 279 and model forms are available at http://www.sro.nysed.gov.

Footnotes

[1] The December 6, 2022 transcript shall be referred to as “T” followed by page numbers and the December 13, 2022 transcript by T 12/13/22 followed by the page numbers.