Impartial Hearing Decision

FINDINGS OF FACTS & DECISION

Case Number: 245219

Student’s Name: REDACTED

Date of Birth: REDACTED

District: REDACTED

Hearing Requested By: Parent

Dates(s) of Hearing: 03/15/23, 04/24/23 & 06/09/23

Actual Record Close Date: October 01. 2023

Hearing Officer: Sharifa Milena Nasser

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date

[CONFIDENTIAL] Attorney PARENT 03/15/23 (V)

[CONFIDENTIAL] DOE Representative DOE 03/15/23 (V)

[CONFIDENTIAL] Attorney PARENT 04/24/23 (V)

[CONFIDENTIAL] DOE Representative DOE 04/24/23 (V)

[CONFIDENTIAL] Attorney PARENT 06/09/23 (V)

[CONFIDENTIAL] DOE Representative DOE 06/09/23 (V)

DOCUMENTATION ENTERED INTO RECORD

A. Number/Letter Title Dated For # of Pages Demand for Due Process 01/23/23 PARENT 06 pages

B. Due Process Response 04/04/23 PARENT 03 pages

C. Individualized Education 06/09/22 PARENT Plan 15 pages

D. Neuropsychological 03/22/22 PARENT 18 Evaluation, REDACTED Ph.D.

E. Enrollment Contract 09/20/22 PARENT REDACTED 03 pages

F. Tuition Affidavit, 04/26/23 PARENT REDACTED 01 pages

G. Program Description, N/A PARENT REDACTED 06 pages

H. 2022/2023 Class N/A PARENT 01 Schedule for REDACTED

I. Progress Report for the 02/15/23 PARENT REDACTED 08 pages

L. J Positive Behavior 02/15/23 PARENT 04 Support Plan, REDACTED K Sensory Diet N/A PARENT 01 Attendance, REDACTED 04/26/23 PARENT 01 pages

N. M Emails Between REDACTED 06/09/22 PARENT 05 and New York City DOE CPSE Email Between 09/06/22 PARENT REDACTED and New York City 02 pages

DOE CPSE

O Letter from Parent to 01/10/23 PARENT 03

New York City DOE with Fax Confirmation

P 2022 Tax Returns for N/A PARENT 02

REDACTED

Q Invoice and Proof of 03/21/22- PARENT 03

Payment for Evaluation 03/22/22

R Affidavit of REDACTED 05/02/23 PARENT 07

S Affidavit of REDACTED 05/31/23 PARENT 05

On February 03, 2023, I was appointed as the Impartial Hearing Officer (“IHO”) to conduct a hearing pursuant to the Individual with Disabilities in Education Act (“IDEA”), 20 United States Code, Section 1415(f)(1), concerning a dispute involving the special education program of a REDACTED year old student attending a private school and the New York City Department of Education (“DOE”) District 20. The Parents allege a denial of FAPE for the 2022-2023 school year. CPSE claimed that 10 hours per week was the maximum allowed for the student. The Parent’s requested a 1:1 ABA school program but the CPSE refused. Parent alleges the NYCDOE recommended an 8:1:2 special class for the student and the Parents wanted the District to consider 1:1 instruction. The Parent indicated that he would be open to visiting any recommended schools. The Parent visited the proposed school but they allege there was no seat available for the child. (Parent’s Exhibit- A) The Parents filed a Due Process Complaint (“DPC”) on or about January 23,2023.

At the impartial hearing, the Parent seeks the following relief:

• A finding that the student was denied a FAPE for the 2022-2023 school year.

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

• Tuition reimbursement and/or direct payment of the student’s tuition at the private school for the 2022-2023 school year and

• A finding that the Parents are entitled to a bank of 920 hours of ABA compensatory education

• A finding that the Parents are entitled to reimbursement for the cost of an independent evaluation in the amount of $1,000.00.

THE DOE’S CASE

The DOE did not call any witnesses to testify on its behalf and did not submit any documents in evidence. In sum, substance and relevant part, the testamentary and documentary evidence for and against the DOE’s case is incorporated in the decision below. The DOE has in fact conceded that there was a FAPE violation for the 2022-2023 school year.

THE PARENT’S CASE

The Parent had (2) witnesses testify on their behalf, who testified on direct testimony via affidavit pursuant to 8 NYCRR 200.5[j][3][xii][f]. On the hearing dates, the DOE crossed all of the affiants. The Parent also submitted (19) documents in evidence. In sum, substance and relevant part, the testamentary and documentary evidence for and against the Parent’s case is incorporated in the decision below.

FINDINGS OF FACTS & DECISION

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

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

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

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

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

The New York State Legislature amended the Education Law to place the burden of production and persuasion upon the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of production and persuasion regarding the appropriateness of such placement. (See Educ. Law § 4404[1][c], as amended by Ch. 583 of the Laws of 2007) The amended law took effect for impartial hearings commenced on or after October 14, 2007; therefore, it applies to the instant case. (See SRO No. 08-016)

A private school placement must be "proper under the Act." (See Carter, 510 U.S. at 12, 15 and Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs. (See Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129 and Matrejek, 471 F. Supp. 2d at 419) A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement. (See Carter, 510 U.S. at 14) The private school need not employ certified special education teachers or have its own IEP for the student. (See Carter, 510 U.S. 7; SRO No. 08-085; 08-025; 08-016; 07-097; 07-038; 02-014 and 01-105) Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate." (See Gagliardo, 489 F.3d at 112 and M.S. v. Bd. of Educ., 231 F.3d 96, 104 [2d Cir. 2000]) "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement….'" (See Gagliardo, 489 F.3d at 112; Frank G. v. Bd. of Educ., 459 F.3d at 364 [2d Cir. 2006] [quoting Rowley, 458 U.S. at 207 and identifying exceptions]) Parents need not show that the placement provides every special service necessary to maximize the student's potential. (See Frank G., 459 F.3d at 364-65) When determining whether the parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits." (See Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]]) A "private placement is only appropriate if it provides 'education instruction specifically designed to meet the unique needs of a handicapped child.'" (See Gagliardo, 489 F.3d at 115 [emphasis in original], citing Frank G., 459 F.3d at 365 quoting Rowley, 458 U.S. at 188-89)

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

The final criterion for a reimbursement award is that the parent's claim be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA. (See Burlington, 471 U.S. at 374; M.C. v. Voluntown, 226 F.3d 60, 68 [2d Cir. 2000] and Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required"]) Such considerations "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters." (See Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-

02 [1st Cir. 1984], aff'd, 471 U.S. 359 [1985]) With respect to equitable considerations, the IDEA provides that tuition reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, fail to engage with potential placements offered by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. (See 20 U.S.C. § 1412[a][10][C][iii]; Thies v. New York City Bd. of Educ., 2008 WL 344728 [S.D.N.Y. Feb. 4, 2008]; M.V. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181 at *5 [N.D.N.Y. Jan. 2, 2008]; Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 [S.D.N.Y. Nov. 20, 2007]; Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 [S.D.N.Y. 2005], aff'd, 2006 WL 2335140 [2d Cir. Aug. 9, 2006] and Voluntown, 226 F.3d at n.9)

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

The Parent testified via affidavit on direct as follows: “We met with the CPSE on June 9, 2022. At the meeting I raised concerns that I did not believe that REDACTED was making educational progress with the current IEP mandate. I was disheartened that almost an entire school year elapsed and that REDACTED was not receiving sufficient and appropriate services to meet his needs.

I requested 1:1 ABA programming for REDACTED. 13. At the meeting REDACTED SEIT provider REDACTED reported that REDACTED was not expressing himself verbally. He had social difficulty, he was overwhelmed i n school at circle t i m e , often closing h i s ears because he was overstimulated b y the noise. She reported that REDACTED needed "hand over hand" support and prompting.

14. The DOE recommended an 8:1:2 class placement to begin on July 5, 2022. At the meeting we discussed some potential school programs for REDACTED including REDACTED and REDACTED. I said we would like to visit any schools for REDACTED.

15. We also requested an increase in SEIT services with an ABA provider until we could find an appropriate school. The CPSE Administrator REDACTED said no and told us that they were only allowed to recommend 10 hours due to office protocol.

16. At the meeting the DOE did not review any evaluations, did not review or update REDACTED Goals. The DOE did not discuss or consider any behavioral support. I felt that my concerns were not addressed. We left the meeting without any school recommendation or increase in services.

17. After the meeting we visited REDACTED at the suggestion of REDACTED. REDACTED did not have a spot for REDACTED in the summer and likely would not have a spot for September as there was already a waitlist. We reached out by email to REDACTED to request additional school options for REDACTED.

18. We contacted and considered the following schools: REDACTED, REDACTED, REDACTED, REDACTED, and REDACTED. None of t h e s c h o o l s had a s e a t f o r REDACTED for summer. The IEP was supposed to be implemented on July 5, 2022 but none of the schools could implement the program and the DOE failed to timely offer a placement for REDACTED.

19. My wife and I were open minded to considering these schools. In fact, we sought out additional recommendations from the CPSE and did much of the leg work in reaching out, trying to arrange tours, and following up.

20. After spending much of the summer reaching out to schools, none of which accepted REDACTED, 1 contacted REDACTED to reiterate the request for an increase in SEIT services as REDACTED has not been progressing with the mandate he had. She refused to offer additional services.

21. Over the summer we considered REDACTED for REDACTED. We heard about this school from other parents. We met with the principal REDACTED who invited us in for a tour where we were able to see classrooms and learn about the program offered.

This was a welcomed opportunity. Many of the schools s uggested by the CPSE refused to allow us to tour the school in person when programming was in session. We liked many aspects of REDACTED programming i n c l u d i n g t h a t they used ABA for academics which was in line with REDACTED recommendation.

22. On September 6. 2022 I sent the DOE a I 0 ten day notice advising that I would unilaterally place REDACTED at REDACTED. I n o t e d my concerns that REDACTED did not progress for an entire school year and that every member of the JEP team acknowledged and agreed REDACTED did not progress. I raised concern that the DOE did not offer more services or find REDACTED an appropriate school program. I reiterated that none of the schools we visited or contacted had a seat for REDACTED.

23. REDACTED began REDACTED on September 20, 2022. The program is appropriate for him and he has made notable progress this school year. When REDACTED began REDACTED he was not potty trained and wore pull ups. Within six weeks he was no longer in pull ups and made significant progress in using the bathroom. REDACTED also improved his communication. REDACTED worked with us to use REDACTED PECS book at home so REDACTED can communicate w i t h us indicating "I want" and name some foods. He has improved in following a one step direction. I have observed more spontaneous speech and r e c o g n i t i o n o f familiar i t e m s . He is more engaged a n d social with hi s younger brother. Overall we have observed a lot of strides, which I believe is due to the ABA and Floortime methodologies REDACTED employs.

24. I wrote to the DOE CPSE Chairperson in January 2023 again raising my concerns with the IEP, lack of appropriate evaluations, and failure to recommend an appropriate level of services or timely school placement for REDACTED. I noted that in addition to REDACTED tuition I would seek compensatory hours for the DOE's failure to recommend an appropriate IEP mandate for REDACTED during the entire school year as well as payment for an independent evaluation. Nobody responded to me.

25. I am requesting 920 compensatory hours in the form of 1:1 ABA Services to remedy the past failures of the DOE. The recommended 10 hours of SEIT Qust two hours per day) was not working as REDACTED was stagnant in his progress as noted by everyone at the last CPSE meeting. REDACTED recommended ABA programming for REDACTED. A full-time program which offers ABA instruction has worked for REDACTED. (20 hours of ABA * 46 weeks= 920 hours)

26. I am requesting reimbursement f o r REDACTED evaluation in the amount of $1000. 1 noted my concern at the CPSE meeting and in writing that I did not agree with the remote evaluations and that REDACTED needed a comprehensive in person evaluation. At no point did the DOE offer to evaluate REDACTED in person. The DOE knew I would be obtaining a private evaluation which I paid for out of pocket.” (Parent’s Exhibit- S 2-5) The District did not cross examine the Parent.

The Parent’s hired a Psychologist to conduct a neuropsychological evaluation. REDACTED conducted the evaluation. The Doctors findings and recommendations were as followed:

The diagnosis given by the Doctor was “autistic spectrum disorder and severe expressive receptive, pragmatic language disorder. “ (Parent’s Exhibit -D 11) “REDACTED s a complex child with a severe expressive receptive language, pragmatic communication disorder and the features of an autistic spectrum disorder. At this time, he requires one on one instruction a minimum of 25 hours per week, utilizing the principles of ABA and incorporates ABA methodology in all aspects of academic instruction, daily living skills and related services. The support must be individualized in order to support the initiation and maintenance of his attention to task, focus on developing interaction, socialization and communication, academic and problem-solving abilities. Intensive ABA should be provided under supervision of a boardcertified behavior analyst BCBA.”(Parent’s Exhibit -D 11-12)

The District did not contest the neuropsychological submitted by the parent.

The Parent’s witness from the private school, REDACTED, the school’s principal testified via affidavit on direct as follows:

“For the 2022-2023 school year 45 students are enrolled at REDACTED. All of the students had IEPs and require special education settings. 12. I am familiar with REDACTED, a student who began attending REDACTED in September 2022 and remained enrolled for the 2022-2023 school year. 13. REDACTED presents with global delays and has many deficits which impact on his ability to learn. He h a s serious l a n g u a g e d e f i c i t s , i n t e r f e r i n g b e h a v i o r s , d i f f i c u l t i e s f o c u s i n g , cognitive delays, socialization deficits, and motor delays. 14. REDACTED came in for an intake evaluation. He was assessed by a variety of team members including a BCBA, teacher, speech therapist and occupational therapist. His skills in all content areas were evaluated to determine eligibility for our program. We reviewed all documents the family shared with us regarding previous evaluations and therapy. We believed that REDACTED would benefit from the small classes, 1:1 instruction, ABA and Floortime teaching.

15. For the 2022-2023 school year REDACTED was placed in class of 6 students. REDACTED classroom teacher was REDACTED, MS.Ed., a special education teacher. The class also included a teacher’s assistant and classroom instructors. The high student to teacher ratio is what REDACTED needs to learn and be successful. REDACTED has many opportunities throughout the day to work one-to-one with an instructor.

16. The other students in REDACTED lass were ages 5-8. They present with a similar profile to REDACTED in terms of academic achievement and developmental norms.

17. During the 2022-2023 school year REDACTED provided REDACTED with a number of individualized supports and accommodations to address his deficits including visual supports, an embedded schedule, an individual sensory diet and sensory breaks, a PECS system for communication, and an individual behavior plan.

18. REDACTED provided REDACTED with 1:1 support for academics as he was easily distracted and had deficits in attending for long periods of time. In addition to individual academics, all students receive group instruction using Social Thinking curriculum to facilitate and promote social interaction between peers. Each student’s program is highly individualized and tailored for his/her unique profile. Curriculum goals are designed to capitalize on sensorimotor and communicative strengths and scaffold through weaknesses. Additionally, goals from all related services are incorporated into classroom programming to facilitate carryover and generalization.

19. When REDACTED began in our program in September 2022 he engaged in maladaptive behaviors which interfered w i t h h i s ability t o learn. REDACTED behaviors i n c l u d e d tantrums, climbing on adults, scripted language, and self-stimulation. To address these behaviors one of REDACTED Board Certified Behavior A n a l y s t s (BCBAs), REDACTED MS Ed., BCBA, conducted a Functional Behavior Assessment (FBA), collecting data on REDACTED behaviors.

20. The FBA revealed that REDACTED was non-compliant when demands were placed on him and/or access to a preferred item was removed. REDACTED would elope and tantrum in these instances. However, in one on one teaching scenarios elopement was less frequent. In addition, REDACTED engaged in self-stimulation frequently during transitions. REDACTED would press his body into surfaces for self-stimulation on his lower stomach area.

21. REDACTED has mastered several skills including increasing his attention to tasks, ripping a variety of textured papers apart, labeling one object with prompting, responding to three safety words, and nodding yes. We build on mastered skills with more individualized goals. So far this school year REDACTED is progressing toward using an iPad, unwrapping a loosely wrapped object, labeling two different objects, making requests, unpacking his belongings, responding to greetings, responding to directions, shaking his head no, and ADL skills like brushing his teeth and washing his hands.

31. In Literacy REDACTED worked on attending to the teacher while in close proximity to the other students, pointing to pictures in the book, labeling and identifying pictures and responses to what questions. He has progressed but continues to need a high level of support.

32. In Science REDACTED worked on attending to the teacher, following directions, following a visual schedule, r e s p o n s e t o wh at questions a n d sharing w i t h p eers . Overall he i s progressing in this class.

33. REDACTED receives Speech Therapy with REDACTED, M.S., CCC-SLP, TSSLD. He receives two individual sessions and one group session. REDACTED has speech Goals which are tailored to address his areas of deficit. This year he has been working on requesting desired items and actions using the PECS, communicating with a partner, engaging in joint attention, and imitating gestures such as waving. REDACTED has been progressing toward his goals so far this year and has mastered several targets in communicating using the PECS. He can request items and has been working on making a request using a sentence starting with 'I want.' REDACTED has improved in social language and has been increasingly engaged in group sessions. REDACTED also worked with REDACTED to address his sensory issues with food and has introduced foods with varying textures, consistencies, and temperatures. Overall REDACTED is making steady progress.

34. REDACTED receives Occupational Therapy twice per week with REDACTED, MS, OTR/L. REDACTED has been working on and improving brushing his teeth, washing his hands, writing skills, completing puzzles, and coordination activities. In OT sessions, REDACTED benefits from a quiet environment with minimal stimuli to work on fine motor table-top activities l i k e writing skills . Additionally, REDACTED enjoys e n g a g i n g w i t h sensory equipment in our gym. Overall he is making gains this year.

35. REDACTED receives Physical Therapy in a group once per week with REDACTED PT/DPT. He works on engaging in gross motor play with his peers, following directions and improving balance and coordination. Overall he has made gains in these areas.

36. REDACTED has Art Therapy once per week with REDACTED. This year he is working on and progressing in interacting in a group, sharing, initiating with peers and exploration of various art materials.

37. REDACTED participates in Rhythmic Movement Training/ PROMPT twice per week. RMT is a ready to learn program done prior to morning academics. It is a series of exercises and movements that relax the body and help REDACTED focus. PROMPT is a treatment designed to help the mouth achieve the correct position for a particular speech sound. This protocol helps REDACTED improve his sound production.

38. REDACTED has Yoga/TGTS (Thinking Goes to School). Yoga is designed to aide digestion and promotes a calm body for learning. TGTS are visual cognitive exercises designed to improve using your eyes integratively, improving visual motor skills and gross motor movements. Overall these benefits REDACTED, helping him be more attentive and ready for learning.

39. REDACTED is a student who needs 12-month programming. Though he joined our school in September, REDACTED offers 12-month programming including over the summer. REDACTED would substantially regress and lose skills without year round programming. We have observed that he loses skills after school b r e a k s . He n e e d s constant reinforcement and repetition.

40. REDACTED staff maintained consistent communication with REDACTED parents during the 2022-2023 school year and staff were available to answer any questions and address any concerns. Mr. and Mrs. REDACTED play an active role in REDACTED education and are receptive to feedback.

41. I believe that REDACTED is appropriately placed at REDACTED during the 2022-2023 school year. He receives tailored instruction based on his needs in a small, nurturing class environment with peers with similar skills and needs to his.

In addition, REDACTED addressed and accommodated REDACTED cognitive and learning difficulties, and behavioral issues using the ABA and DIR/Floortime methodologies which are appropriate for him. Overall REDACTED made some meaningful gains in his ability to attend to instruction, socialize with peers, follow instructions, increase fine and gross motor skills, and improve communication.” (Parent’s Exhibit- R 2-7)

There was no cross examination by the District.

APPROPRIATENESS OF THE RELIEF SOUGHT

I now turn to the question of whether the DOE should be required to reimburse and/or pay for the private educational services and relief requested for the student, because the services offered by the DOE were inadequate or inappropriate, and the relief sought and services selected by the Parents are appropriate and equitable considerations support the Parent’s claim. (Burlington, Florence and Cerra, Supra) The Parent need only demonstrate that the requested services are specially designed to meet the unique needs of the student, supported by such services as are necessary to permit her to benefit from the instruction. (See Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65)

The Parents evidence shows that the student has made academic progress while enrolled in the private school for the 2022-2023 school year. The students report cards and progress reports are submitted into evidence. (Parent’s Exhibit “I”)

COMPENSATORY SERVICES

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

Regarding the Parent’s request for compensatory services, here, the Parent need only show that the relief requested is "reasonably calculated to enable the child to receive educational benefits." (Frank G. & Gagliardo, supra -emphasis added) This standard of review is de minimus, and arguably below all of the other recognized standards of review in the law, such as “beyond a reasonable doubt”, “clear and convincing evidence”, “preponderance of the evidence”, “substantial evidence” or even “rational basis.”

Here, considering the student’s neuropsychological report and the failure of the DOE to timely provide the student with an appropriate placement, combined with the DOE defaulting on their obligation and therefore a finding of a violation of FAPE, compensatory services are certainly appropriate. Additionally, the need for the neuropsychological exam and the reliance of the exam to evaluate the student.

The Parents evidence shows that the student’s unilateral placement school provides individualized instruction and the students has progressed during her time there as per the Parents witnesses and documentation submitted into evidence of the students’ progress reports and report card. (Parent’s Exhibit-“I”)

When determining whether the parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits." (See Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003]) (emphasis added) This standard is well below those other standards of review in the law such as “beyond a reasonable doubt”, “clear and convincing evidence”, “preponderance of the evidence”, “substantial evidence” or even perhaps “rational basis.” The record, as accurately summarized by the parties above and adopted in this decision and order, supports a finding that the decision to place the student at the private school was” reasonable” as an appropriate placement for the student’s 2022-2023 school year.

Whereas, accordingly, I find that the Parent is entitled to the reimbursement for the evaluation and tutoring services and I will also exercise my discretion under 34 C.F.R. 300.502(d) and 8 NYCRR 200.5(i)(3)(vi) and order the DOE to conduct its own evaluations regarding any areas of suspected disabilities that the student may have; and, which the Parent may subsequently agree or disagree with; and There is nothing in the record that support a finding that the Parent has not cooperated with the DOE.

NOW therefore, it is hereby

ORDERED that the DOE denied the student a FAPE for the 2022-2023 school year and that upon its receipt of reasonably satisfactory proof of services having been rendered, the DOE shall reimburse the Parent or pay directly for the cost of the student’s tuition and related services at the private school for the time the student attended the private school during the 2022-2023 school year; and it is further

ORDERED that the DOE shall within thirty (30) days of the date of this order reimburse the parent $1,000 for the neuropsychological evaluation conducted by the Parent.

ORDERED that that upon its receipt of reasonably satisfactory of services having been rendered, the NYC-DOE shall either reimburse the Parent and/or directly pay the cost for the student’s compensatory services in the amount of a bank 920 hours of ABA services at a reasonable market rate, said hours to expire within 18 months of this

decision

ORDERED that within 30 days of the completion of all of the evaluations the CSE shall forthwith reconvene to produce a new IEP for the student that considers all of the student’s available evaluations and any related information and produce a new IEP for the student’s 2023-2024 school year; and it is further

ORDERED that any of the other relief sought by the Parent not addressed by this “Final Order” is found to be either resolved by the parties, withdrawn by the Parent, outside the scope of the IHO’s authority or unsupported by the record.

Sharifa Milena Nasser

DATED: October 29, 2023

Queens, New York Sharifa Milena Nasser - I.H.O.

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public-School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education L[2nd PRIVATE SCHOOL INITIALS] and the Individuals with Disabilities Education Act.

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov. (Rev. 07/09/20)