New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 245272

Student’s Name: REDACTED

Date of Birth: REDACTED

District: REDACTED

Hearing Requested By: Parents

Date of Hearing: May 19, 2023

June 6, 2023

June 15, 2023

June 27, 2023

July 11, 2023

Record Close Date: October 19, 2023

NAMES AND TITLES OF PERSONS WHO APPEARED

MAY 19, 2023

For the Student:

REDACTED Attorney

For the Department of Education:

REDACTED Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED

JUNE 6, 2023

For the Student:

REDACTED Attorney

For the Department of Education:

REDACTED District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

JUNE 15, 2023

For the Student:

REDACTED Attorney

REDACTED Parent

REDACTED CSE Liaison, REDACTED

For the Department of Education:

REDACTED District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

JUNE 27, 2023

For the Student:

REDACTED Attorney

REDACTED Parent

For the Department of Education:

REDACTED District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

JULY 11, 2023

For the Student:

REDACTED Attorney

REDACTED Parent

For the Department of Education:

REDACTED District Representative

Introduction:

This case was brought before me upon my designation by the Department of Education (“District”) as an impartial hearing officer pursuant to the Individuals with Disabilities Act (“IDEA”), 29 USC §1400 [f][1] and Part 200 of the Regulations of the New York State Commissioner of Education. This matter was brought by REDACTED and REDACTED , the Parents (“Parents”) on behalf of REDACTED, the student (“Student”), through their attorney, REDACTED from the REDACTED by filing a Due Process Complaint dated January 25, 2023 with the District.

The Parents are alleging that their son, REDACTED was denied a free and appropriate public education (“FAPE”) for the 2022-23 school year and are seeking tuition reimbursement and/or direct funding for his unilateral placement at the REDACTED ( ) for said year.

There were five days of hearings in this matter. Hearings were conducted on May 19, June 6, June 15, June 27 and July 11, 2023. Extensions were granted in this case making the final compliance date November 6, 2023.^[1] Briefs were prepared by the parties. A list of Exhibits is attached as Exhibit A. The Parents, the District and the Impartial Hearing Officer all submitted exhibits.

Background

This case involved an REDACTED year old student. During the 2022-23 school year, REDACTED attended REDACTED where the Student was unilaterally placed by the Parents.

With respect to the 2022-23 school year, an Individualized Education Program (“IEP”) was developed on August 5, 2022. Pursuant to the August 5, 2022 IEP, the following recommendations were made:

1. Special Education Teacher Support Services (SETSS), ELA, group services, three times a week for one period each time; and

2. SETSS, Math, group service, one time a week for one period each time. D-2; IHO-I.

Parents sent a Notice of Unilateral Placement on August 22, 2022. P-J. They advised the District that they would be unilaterally placing the Student at REDACTED for the 2022-23 school year and would seek funding for his placement. The District sent a letter on September 2, 2022 determining that the Ten Day Notice of Unilateral Placement is not appropriate for settlement. P-K.

The Parents entered into an Enrollment Contract for REDACTED with REDACTED on March 15, 2022. P-E.

The Parents filed a Due Process Complaint on January 25, 2023. P-A. I was appointed as an Impartial Hearing Officer on February 3, 2023.

Position of the Parties

District Case

The District called no witnesses and placed seven documents in evidence. D-1--D-2; D4—D-7.

Parents’ Case

The Parents called the Parent, REDACTED, and REDACTED and placed fifteen (15) documents in evidence. P-A—P-). REDACTED provided her testimony by Affidavit (P-O) and REDACTED provided her testimony by Affidavit as well. P-P.

The Parent testified that her son, REDACTED attended fourth grade at PS 3 (September 2021 – June 2022) in New York City. He received his first IEP in second grade when he was diagnosed with dyslexia. At that time he received small group instruction and two teachers. Tr.

159. The family then moved to REDACTED for a year where he had an IEP (Tr. 160) and then returned to New York City.

At the start of the 2021-22 school year, for fourth grade, he was placed in an ICT class based on an alleged Comparable Service Plan from REDACTED (which is not in evidence). Tr. 165-166. At that time, the Parent testified that she was told by the District that they do not give small group instruction when a student is in an ICT class and they were told by the District if they wanted small group instruction he needed to be in a general education class and get pullouts of SETSS. Therefore, during the Fall of 2021, he was moved from an ICT class to a general education class with small group instruction. Tr. 167. The Parent testified that the Student was not performing on grade level and was getting frustrated. They had a tutor who explained that the Student needed more individualized group instruction specific to dyslexia like OrtonGillingham. Tr. 167. The school was aware that he had private tutoring. The tutor provided Orton-Gillingham twice a week after school. Tr. 168. Once he was switched to an ICT class, he was not improving and needed more support. Tr. 170. In response to this they had REDACTED do an additional evaluation. Although there was some improvement in reading, there was none in writing. Tr. 171. The Parent did not recall if the school had REDACTED’s report from September 20, 2021 (P-B) prior to his move from the ICT class to a general education class, however, she always shared the reports with the District. Tr. 172; Tr. 174. The Parents engaged REDACTED again in the spring of 2022 and another report was generated. Tr. 175. The had REDACTED conduct this evaluation because they were still seeing deficits with the tutor and SETSS program. Tr. 176. They did not do a full neuropsychological because REDACTED felt she could assess him through certain tasks and get enough information to make recommendations. Tr. 177. Although in REDACTED’s report she recommended a full Neuropsychological Evaluation, when they spoke to her, the Parent testified that REDACTED said she got enough information to understand his learning disability and that he needed a program to target it. The Parent testified that this confirmed their concerns. Tr. 181. At the end of fourth grade, the school reported that he was on grade level in certain areas and below in others. Tr. 185.

The Parent attended an IEP meeting in August of 2022 to discuss REDACTED’s newest evaluation by phone. Tr. 187. She spoke to a social worker from the District a day before the meeting. She testified that she thought that was the IEP meeting. Tr. 187-188. She testified that he suggested certain programs in New York that the Student may qualify for like REDACTED. The social worker explained that there were lots of options. Tr. 188. Them Parent testified that they had already secured a sport at REDACTED in case they did not provide a placement that they wanted. Tr. 189.

While at the REDACTED , there were 13 to 15 students in his class and two teachers and he received a tutor trained in REDACTED during the school day from a special education teacher once a week. Tr. 233.

The Parent testified that at the November 2021 IEP meeting, the psychologist, REDACTED told her that he could not have an ICT class and SETSS pull outs. Tr. 239. Although the Parent wanted both, they said it was not a choice. Tr. 243. At that time, REDACTED was receiving home tutoring once or twice a week. Tr. 240. During the year his reading improved a little but his reading and writing were still a struggle for him. Tr. 244. They had another Neuropsychological Evaluation with REDACTED. They noticed there was a direct contrast between what he said verbally and what he wrote down. Tr. 245. There was an email exchange between REDACTED and the Parent between June 5 – June 10, 2022 where the Parent expressed concerns with the Student’s reading and writing. P-N.

When the Parent received the report from REDACTED at the end of the 2021-22 school year, she shared it with REDACTED. The email she received on August 1st scheduling an online social history was the first email she got from the District regarding the IEP meeting. Tr. 270. After the phone call regarding the social history with REDACTED, she received another email outlining their discussions including documenting the specialized schools for dyslexia that were discussed. Tr. 271. The IEP meeting took place the next day and she was not aware that other people were present besides REDACTED. Tr. 279. She testified that she had requested this meeting. Tr. 287. The Parent stated that the IEP meeting by phone was quick and she just remembers them saying they were recommending the same program he had before. Tr. 291. No one spoke about his progress at the meeting. Tr. 293. She does not remember discussing the evaluation in detail at the meeting. Tr. 295. She does not recall if she received a copy of the August 5, 2022 IEP or Prior Written Notice, Social History or Minute Notes after the meeting. Tr. 300. She also does not remember when she retained REDACTED office. Tr. 302.

The Parent first became aware of the REDACTED from REDACTED. Tr. 303. They applied when he was in fourth grade. Tr. 304. They had to fill out an application online and submit prior IEPs and any neuropsychological evaluations. REDACTED also did their own evaluation on Zoom with their specialists. Tr. 307. At the end of the process, the Student was accepted into REDACTED for the 2022-23 school year. Tr. 308. On the Parents’ behalf, REDACTED office sent a notice to the District indicating that they would be placing the Student at REDACTED if the District did not respond to their concerns. Tr. 309. They received a response from the District indicating that they were not interested in settling the case. Tr. 311.

The Parent testified that she placed the Student at REDACTED for the 2022-23 school year. Tr. 314. She stated that he has done well but still has more to go. Tr. 314. She indicated that they just had his Parent-Teacher conference and they said he has made excellent strides since the Fall. Tr. 315. He is getting more individualized attention in the areas that he needs extra support. Tr. 315.

Findings

Two purposes of the 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 individual 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 (20 U.S.C. 1499[D][1][A]-[B]; see generally, Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).

The decision in this case rests on a determination of the three-pronged test set forth by the United States Supreme Court in School Committee of the Town of Burlington v. Dep’t of Educ. of Massachusetts, 471 U.S. 359 [1985]. A board of education 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 (Prong 1), the services selected by the Parent were appropriate (Prong 2), and equitable considerations support the parent’s claim (Prong 3). Burlington, 471 U.S. at 370; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 92d Cir. 2005]). Prong 1-Appropriateness of District Program The purpose of the IDEA is to ensure that all children with disabilities have available a free and appropriate public education (FAPE) which addresses their unique special education needs and to ensure that their rights and the rights of Parents are protected. A FAPE is offered to a student when (a) the board of education 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 (Rowley, 458 U.S. at 206-07; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 [2d Cir. 2014]; R.E. v. New York City Dep’t of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012]; M.H. v. New York City Dep’t of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). “[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP” (Walczak

v. Fla. Union Free Sch. Dist., 142 R.3d 119, 129 [2d Cir. 1998], quoting Rowley, 458 U.S. at 206; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]). The Supreme Court has indicated that “[t]he IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement” (Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. ___, 137 S. Ct. 988, 999 [2017]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student’s IEP and indicated that “[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not” (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]). 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 (20 U.S.C. §1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkleman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; (R.E., 694 F.3d at 190; M.H., 685 F. 3d at 245).

The IDEA directs that, in general, an IHO’s decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415 [f][3][E][i]). A school district offers FAPE by “providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction” (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” (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]; see, Rowley, 458 U.S. at 189). “The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created.” (Endrew F., 137 S. Ct. at 1001). The statute ensures an “appropriate” education, “not one that provides everything that might be thought desirable by loving parents” (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]; see, Grim, 346 F.3d at 379). Additionally, school districts are not required to “maximize” the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; 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’ (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see, P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 20007 WL 465211, at *15). The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit” (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Endrew F., 137 S. Ct. at 1001 [holding that the IDEA “requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances”]; see Rowley, 458 U.S. at 192). The student’s recommended program must also be provided in the least restrictive environment (20 U.S.C. § 1412 [a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2];8 NYCRR 200.1[cc], 200.6[a][1]; see 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).

An appropriate education begins with an IEP that accurately reflects the results of evaluations to identify the students’ needs (34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. Dep’t of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008), establishes annual goals related to those needs (34 CFR 300.320[a][2]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services. (see 34 CFR 300.320[a][4];8 NYCRR 200.4[d][2][v]; see Application of the Dep’t of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep’t of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

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 (Educ. Law §4404[1][c], as amended by Ch. 583 of the Laws of 2007).

The Parents allege that the District did not comply with the procedural and substantive requirements of the IDEA. They specifically state in their due process complaint dated January 25, 2023 that “The Parents have been denied their right to meaningfully participate in the development of an appropriate program. The CSE failed to consider individualized alternatives, failed to review the continuum of services, failed to appropriately evaluate REDACTED prior to the IEP meeting, failed to discuss goals, management needs and accommodations at the meeting, failed to adequately consider the Parents’ concerns about REDACTED’s learning needs, failed to consider promotional criteria, failed to timely implement the recommendations in response to initial referral. The CSE failed to consider the Parents own evaluative data, concerns, and expert reports which all indicated the IEP recommendations made at the meeting would not be appropriate for REDACTED. The CSE failed to review appropriately the thirteen disability classifications.” P-A.

The central issue in this matter is whether the District provided a FAPE to the Student for the 2022/23 school year. In that regard, the District presented no testimonial evidence in support of its IEP recommendations, nor did it address any of the issues raised in the due process complaint. P-A; IHO-I. While the lack of testimonial evidence is not necessarily per-se evidence of the failure to establish the provision of a FAPE, clearly the District l bears the burden of proving that its program and placement recommendation was an appropriate one to address the needs of Student. The court in Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. ___, 37 S. Ct. at 1002 [2017] held that relative to the creation of an IEP, “ [a] reviewing court may fairly expect the [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” To the extent that some documentary evidence was entered into the record by the District including: the IEP (D-2); the Prior Written Notice (D-4), an Educational Assessment (D-5); Social History Update (D-6); Psychological Evaluation (D-7), no testimony was presented to establish the basis for the IEP program or placement recommendation at issue. In this regard, as the Parents stated in their Closing Brief “Documentary evidence, unsupported by any testimony, is not sufficient to establish that a school district offered a student a FAPE under this standard. There is absolutely no explanation, let alone a cogent and responsive explanation for te CSE’s program and placement recommendations.” IHO-III.

While the District’s Prior Written Notice (D-4) cited the consideration of a Psychoeducational Assessment (D-5) and Educational Evaluation (D-7) in the creation of the Student’s IEP, no testimony was provided to explain how such documents were utilized in the creation of Student’s educational program and placement or how such program and placement, based on such documents, addressed Student’s unique educational needs or how such IEP recommendations resulted from such evaluations. While the IEP contained several goals and management needs, no testimony was provided to establish how the goals and/or management needs were created, how they addressed the findings of the documents considered by the District in support of its IEP recommendations, or how such goals and/or management weeds would specifically address Student’s unique educational needs. In addition, no school placement letter was offered into evidence, nor any testimony as to whether and how the school placement was going to meet REDACTED’s needs based on the IEP mandates. In fact, no testimony was provided by any individual to establish in any other manner that the recommendations contained in the August 5, 2022 IEP were reasonably calculated to allow Student to make appropriate progress in light of his particular circumstances.

Based on the totality of the evidence, I do not believe that the District met its burden in showing that the recommended four periods of SETS ( three times a week for ELA in a group and one time a week for Math in a group) was sufficient to meet the Student’s needs and provide him with academic benefit. Therefore, for all the foregoing reasons, I find that the District did not satisfy the requirement to prove prong 1 and therefore, FAPE was not provided to the Student for the 2022-23 school year.

Prong 2-Appropriateness of Parental Placement

Under the second prong of Burlington, the Parents bear the burden of proving the appropriateness of the Parent’s unilateral placement of the Student at REDACTED. In order to meet that burden, the Parents must show that REDACTED offered an educational program designed to meet the Student’s special education needs. Burlington, 471 U.S. at 370; M.S. v. Board of Education of the City of Yonkers, 231 F.3d 96, 104 (2d Cir. 2000). The Second Circuit has explained that “Subject to certain limited exception, the same consideration and criteria that apply in determining whether the school district’s placement is appropriate should be considered in determining the appropriateness of the parents’ placement…” (Frank G. v. Bd. of Educ., 459 F.3d at 364 (2d Cir. 2006) (quoting Rowley, 458 U.S. at 207 and identifying exceptions). The issue turns on “whether a placement is reasonably calculated to enable the child to receive educational benefit. A private placement meeting this standard is one that provides progress not regression. Gagliardo, 489 F.3d at 112. “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.” Gagliardo, 489 F.3d at 112, See, Frank G., 459 F.3d at 364-65). See also, A.D. and M.D. v. Bd. of Educ., 690 F. Supp. 2d 193 (2d Cir. 2010). It should be noted, however, that while evidence of progress is relevant, it does not establish that a private placement is appropriate (Gagliardo, 489 F 3d. at 115 [citing Berger v. Median City Sch. Dist., 348 F3d 513, 522[6th Cir. 2003][stating that evidence of academic progress at a private school does not establish that the private placement offers adequate and appropriate education under the IDEA”])

The Parents have met their burden in showing that REDACTED was an appropriate placement for the Student. Testimony has been provided by REDACTED by Affidavit (P-O) to show that REDACTED is an independent, not-for-profit, special education school that is licensed and accredited by the New York State Association of Independent Schools. It provides students with average to superior intelligence who have been diagnosed with language-based learning disabilities including dyslexia, and have been unsuccessful in learning to read and write, a research-based program designed to provide them with the skills they need to be successful and transition back to a general education setting. The program is based on Orton-Gillingham principles and is a structured, sequential and multisensory program. Language instruction is embedded not just in the language arts classes but also in all content areas, the arts, and physical education. The students needs are met through small classes with a high teacher/student ratio. Most classes have a teacher and assistant teacher. Generally, the student-teacher ratio is four students to one teacher. Classes range from 6-10 for ELA and Math and 10-13 for homeroom, social studies and science. They also offer some 1:1 tutorial classes.

All teachers and assistant teachers are college graduates, must have a Master’s degrees and many are also certified as special or general education teachers in New York State. All teachers are trained through curses provided by the REDACTED Teaching Training Institute. All teachers are required to take three core training classes, Multisensory Reading Instruction, Expository Writing Instruction and Language, Learning and Literacy. They must repeat the classes every five years. They also provide professional development in research-based methodologies to address the learning needs of students with language-based learning disabilities. REDACTED teachers use Preventing Academic Failure (PAF), which is based on Orton-Gillingham principles, which helps to prevent, lessen or eliminate reading difficulties. At REDACTED , the teachers use the following research-based practices which are the foundation of PAF: direct instruction, oral reading, repeated readings, decodable texts, and integration of reading and spelling.

Instruction is differentiated for all students. Students are assigned to a homeroom based on grade level. For ELA and Math, students are grouped homogeneously based on their individual skill development needs and expected rate of progress. Students are grouped heterogeneously for science, social studies, homeroom, the arts and physical education. Students have three ELA periods daily including a period of reading, a period of writing, and a period of skills. Students have one period of Math based on the NYS curriculum standards. REDACTED teachers are trained in Singapore Math.

REDACTED, who evaluated the Student in September, 2019, September 2021(P-B), and then in July, 2022(P-C). She diagnosed the Student as having a Specific Learning Disorder with Impairment in Reading-Reading Fluency; Specific Learning Disorder with Impairment in Written Expression-Clarity/organization of written expression, spelling accuracy and punctuation accuracy; and Specific Learning Disorder with Impairment in Mathematics-Fluent calculations. She made the following recommendation “Despite years of school-based support and private tutoring, REDACTED continues to struggle with significant academic delays. A small, structured and specialized school setting, which can meet the unique needs of a bright learning disabled student, is strongly recommended. It is essential that this placement incorporate a multisensory approach to phonics instruction in their daily curriculum.” P-C.

REDACTED testified that when the Student first came to REDACTED for fifth grade, “he was not reading accurately in a consistent or fluent manner because of his highly inconsistent ability, he struggled to obtain the foundational skills of learning to read and spell words. He needed support with expanding ideas in the form of written expression, with clarity and organization. He requires all academic material to be presented in an explicit, step-by-step, and sequential manner, within the structure of a small classroom with a high level of teacher support.” P-O. In ELA, he benefits from the Orton-Gillingham interventions, reminders of decoding rules and repetition and reinforcement of decoding strategies, teacher scaffolding, and breaking down of language comprehension questions, frequent review of spelling and grammar rules and direct teacher support of all writing. In math he has difficulty with fluency and calculations but benefits from multiple days of exposure to topics, repeated practice and concepts broken down, as well as scaffolding. Everything is modified and broken down and taught in a multisensory manner. After speaking to his ELA, Math, Science, Social Studies and Homeroom teachers, REDACTED testified that his academic needs are being met at REDACTED and he is making progress within the context of the supportive setting. She testified that they are seeing improvements in his reading, writing, and math and in all academic skills. She stated that he is happy at REDACTED and has made connections with teachers and pers. Based on her knowledge of the program at REDACTED, and her review of the Student’s evaluative data, it is her opinion that “REDACTED is an appropriate placement for REDACTED for the 2022-2023 school year and REDACTED receives a significant educational benefit from the specially designed instruction provided to him at REDACTED.” P-O. The Parent also testified that he is doing well, however, she believes he has more to go and that as a result of a recent ParentTeacher Conference, the teachers advised her that he has been making excellent strides since the Fall. Tr. 315. His progress reports also are indicative of progress. P-O

Based on the foregoing, it is clear that REDACTED is providing the Student with educational instruction specifically designed to meet his unique needs and he is receiving educational benefit. Therefore, I find that the Parents have met their burden in proving the appropriateness of REDACTED for the Student for the 2022-23 school year.

Prong 3-Equitable Considerations

The third prong of the Burlington decision requires a balancing of the equities in determining whether reimbursement should be granted.

The IDEA provides that an award of tuition reimbursement may be reduced or denied if notwithstanding their being advised that they should do so, parents never inform the CSE of their disagreement with its proposed placement and their intent to place their child in a private school at public expense at the most recent CSE meeting prior to their removal of the child from public school, nor provide the school district with written notice of such information ten business days before such removal. 20 USC 1412 (a)(10)(C) (ii).

I find that the Parents participated in the August 5, 2022 CSE meeting and provided the school with all reports, and other necessary evaluations. They were familiar with the program recommended since the Student had attended the school and participated in the program for the 2021-22 school year and advised the District that they were rejecting the placement and would continue REDACTED’s placement at REDACTED for the 2022-23 school year and requested tuition reimbursement and/or direct funding for the Student’s placement at REDACTED. P-J. .

Based upon their actions, in terms of equitable considerations, I find that the Parent cooperated with the District and analysis of equitable considerations offers no basis to rule against them.

Based upon the foregoing, I find that the District did not provide FAPE to REDACTED for the 2022-23 school year (Prong 1), the Parents’ placement of REDACTED at REDACTED is appropriate (Prong 2), and the Parents cooperated with the District and analysis of equitable considerations offers no basis for ruling against him. (Prong 3). Accordingly, the Parents are entitled to tuition reimbursement and/or direct funding for the Student’s placement at REDACTED for the 2022-23 school year. .

ORDER

Based upon the foregoing, it is hereby

ORDERED, that the District shall reimburse and/or provide direct funding to the Parents for tuition for the Student’s placement at REDACTED for the 2022-23 school year in an amount not to exceed Sixty-Six Thousand Nine Hundred Forty ($66,940) Dollars, upon proof of payment by the Parents and proof of Student’s attendance at REDACTED for said year.

Dated: October 28, 2023

Elise B. Kestenbaum

Elise B. Kestenbaum, Esq.

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the 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 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 serviced upon opposing part 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 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 and model forms are available at: www.sro.nysed.gov/appeals.htm.

Appendix A Evidence

District Exhibits

No. Date Document Pages

1 8/4/22 Notice of IEP Meeting 3

2 8/5/22 IEP 19

3 void

4 8/5/22 PWN 9

5 7/18/22 Educational Assessment 8

6 8/4/22 Social History Update 4

7 1/4/21 Psychoeducational Evaluation 22

8 void

9 void

10 void Parents’ Exhibits

No. Date Document Pages

A 1/25/23 Due Process Complaint 6

B 9/20/21 Educational Assessment 7

C 7/18/22 Educational Assessment 8

D 4/25/23 Tuition Statement 1

E 2022-2023 Program Description 2

School Year

F 3/15/22 Contract 4

G 2022-2023 Attendance 5

School Year

H 2022-2023 Schedule 1

School Year

I 2022-2023 Progress Reports 15

School Year

J 8/22/22 Notice of Unilateral Placement 2

K 9/2/22 DOE Response to Exhibit 1

L 11/18/21 Individualized Education Program 25

M void

N 6/5/22 - Emails Between Parent and District 5

8/5/22 Regarding Re-evaluation

O 6/1/23 Affidavit of REDACTED 18

P 6/27/23 Affidavit of REDACTED 2 IHO Exhibits No. Date Document Pages

I 8/5/22 IEP 20

II 8/14/23 Closing Brief for the NYS Department of Education 13

III undated Petitioners Closing Brief and Supporting Case Law 13

Footnotes

[1] The Parties moved to extend the compliance date in this matter several times during the course of the hearing. In considering these requests, I weighed the cumulative impact of the relevant factors and found that the requests were in accordance with the requirements of due process. Accordingly requests for extensions of the case compliance date were granted.