New York City Department of Education, Impartial Hearing Decision

NEW YORK STATE EDUCATION DEPARTMENT

IMPARTIAL DUE PROCESS HEARING

x

REDACTED, by and through his/her Parent(s), Petitioners,

- against -

THE NYC SCHOOL DISTRICT,

Respondent.

x

FINDINGS OF FACT AND DECISION

BLUETH BROMFIELD, ESQ.

Impartial Hearing Officer

JURISDICTION

This case was appointed, the due process hearing was held, and a decision is being rendered, pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq.; the New York State Education Law, Educ. Law Art. 89 § 4404 et seq., and its implementing regulations, 8 NYCRR § Part 200; and/or Section 504 of the Rehabilitation Act.

PROCEDURAL HISTORY

This matter comes before the undersigned Impartial Hearing Officer (hereinafter, “IHO”)

on Petitioners’ due process complaint (DPC), filed March 9, 2023. (P – A).^[1] The resolution period expired without the parties reaching an agreement. The case was assigned to this IHO on March 12, 2023. A pre-hearing conference in this matter was held on, April 18, 2023. A closed hearing was held on June 20, 2023. The initial compliance date was May 23, 2023. Extensions were granted extending the compliance date to July 22, 2023. The record closed on July 17, 2023.

BACKGROUND

What follows below are the facts as per the DPC, parent’s disclosures and IHO Exhibit. REDACTED (the student), born on REDACTED, is a child with a disability in need of special education and related services. The student has a disability classification of Other Health Impairment (OHI). The student presents with school-related anxiety, poor social skills, slow processing, poor emotional regulation, poor self-regulation, poor frustration tolerance, an inability to attend, poor self-esteem, behavioral challenges, executive functioning challenges, poor task-management and task-completion skills, and sensory processing issues that cause him to become easily overwhelmed, especially in busy or crowded environments. However, the student also presents with a high cognitive potential. The student’s classification and eligibility for special education supports and services are not in dispute. The school year (SY) at issue is the 2022-23 SY, during which the student was attending the REDACTED School (the private school).

The Committee Special Education (“CSE”) convened for an IEP meeting for the student on December 13, 2021 ^[2]. The resultant IEP recommended a NYC DOE Non-Specialized District School and the following related services: Occupational Therapy (OT), Individual, 1 x 40 minutes per week; OT, Group, 1 x 40 minutes per week; and Assistive Technology (AT), Touchscreen Tablet, Individual, Daily for the school day. The parents disagreed with the CSE’s recommendation in the IEP and felt that the recommendation was not appropriate for the following reasons: DOE denied the parent the right to meaningfully participate in planning for the student’s education as the CSE did not consider all of the information provided to it by the parent and the private school, resulting in the development of an IEP that was inappropriate to address the student’s deficits; DOE failed to properly assess the student; DOE recommended a general education program with related services for the student even after parents provided DOE with a neuropsychological evaluation which stated that the student needed to be placed in a small, full time special education program for children with at least average to above average intelligence and where Collaborative and Proactive Solutions (CPS), Cognitive Behavioral Therapy (CBT), Positive Behavioral Intervention Supports (PBIS) and an evidence-based multisensory approach to learning would be incorporated into his educational program; DOE failed to provide adequate prior written notices (PWNs); DOE’s recommended program was not appropriate as the student would be overwhelmed; DOE failed to establish and record sufficient baselines in the IEP; the IEP proposed goals are insufficient and inappropriate as the CSE failed to adequately discuss, explain, and allow for parental input into the annual goals and short-term objectives; the annual goals are broad and cannot provide meaningful guidance to teachers and other providers who are supposed to implement them; DOE neglected to include adequate methods of measurement to assess the student’s progress towards the annual goals in the IEP; the annual goals cannot be implemented in the DOE recommended program; DOE failed to conduct a Functional Behavior Analysis for the student (FBA) even though it was aware that the student was prone to behaviors like withdrawal, distractibility, anxiety and dysregulation as a result of sensory overstimulation; DOE failed to consider if it should develop a Behavior Intervention Plan (BIP); the IEP did not adequately describe the student’s needs as CSE team members conceded to the parent that they were drafting an IEP that accounted for the DOE’s resources as opposed to the student’s learning needs; DOE’s recommendations were predetermined; DOE’s recommended placement cannot provide appropriate functional grouping according to the student’s academic, social, emotional, age and/or management needs; upon information and belief, the CSE conceded to the parent that neither they nor anyone else in the DOE considered the learning profiles of the other children with whom the DOE sought to place the student; the CSE was not duly constituted as the district representative did not have knowledge of all of the available programs and resources throughout the entirety of the DOE and the special education teacher was no qualified as they were not one of the student’s teachers or someone who would be responsible for the implementation of the IEP; and DOE did not provide the parent with adequate information regarding its remote instruction plan for the student.

On August 17, 2022, parents sent a ten-day notice (TDN) letter to DOE to which DOE acknowledged receipt on September 2, 2022. Parent states that she tried to learn about the recommended placement by requesting information for DOE, but she was ignored. Parent felt that the recommended placement was inappropriate because the student could not be functionally grouped, and the school could not address his environmentally related needs because of the size of the school building and the size of the student population. Thus, for the 2022-23 SY, the parents unilaterally placed the student at the private school. On March 9, 2023, parents filed the DPC which is the basis for the instant case. The parents maintain that the DOE has failed to provide the student a FAPE for the 2022-23 SY. The parents are seeking relief of: a declaration that DOE denied the student a FAPE for the 2022-23 SY; reimbursement for any monies paid to the private school for the student’s tuition; directly pay the balance of any monies that the parent still owes the private school; DOE to provide compensatory or additional educational services to compensate the student for DOE’s denial of FAPE; reimbursing/paying the parent compensation for any interest, late fees, or any other expenses incurred because of the DOE’s failure to provide FAPE; and DOE to provide transportation to and from the private school and reimbursing the parent for any transportation cost provided to the student.

On March 13, 2023, DOE filed a due process response (DPR) denying every allegation in the DPC, except to admit that: on 12/13/2021, the IEP team met and held a review for a 10 month program for the student; the student was classified as a student with OHI, as was previously classified and there was no reason to change this classification; the CSE team recommended a general education program with related services and AT; upon information and belief, the CSE team relied on an AT assessment in making its decision; the CSE team considered and rejected a general education program with special education teacher support services (SETSS) and Integrated Co -Teaching (ICT); on or about April 8, 2022, a prior written notice (PWN) and/or school location letter (SLL) was issued to the parent; and DOE reserved the right to amend and/or supplement the DPR. (P – I).

THE HEARING

The following persons appeared at the hearing:

For the Department of Education:

REDACTED, DOE Representative

For the Student:

REDACTED, Parent Representative

REDACTED, Teacher at the private school, (Witness #1)

REDACTED, Mother, (Witness #2)

DOE waived making opening and closing statements and did not provide any witnesses or disclosures.

The parents’ representative argued that DOE bears the burden of proof for all issues in an impartial hearing, but for the appropriateness of the parental placement. DOE did not come forward with any evidence or witnesses and this is tantamount to a concession of FAPE. DOE cannot prove that it offered the student a FAPE. The parents were left with no choice but to unilaterally place the student so the student could receive educational services. The student was placed at the private school, which is a school for twice exceptional students. The private school was appropriate, as per the evidence. Where the DOE cannot prove that it offered the student a FAPE, the equities are deemed to weigh heavily in the parent's favor. In addition, because DOE failed to meet its burden, according to Appeal No. 01-044 and 12-006, all allegations that parent makes as to appropriateness and equitable considerations should be deemed as true and should weigh heavily in favor of the parent. The parent is entitled to all the relief that she's requesting in the DPC, specifically, reimbursement for amounts that she's already paid to the private school for the 2022-23 SY and direct payment from the DOE to the private school for any amounts that the parent may still owe. The SY has ended, and transportation is no longer an issue in this case.

Relevant portions of the witnesses’ testimonies are as follows.

Witness #1 - Live Testimony

She is an upper school ELA teacher and the director of the humanities department at the private school. [The witness’ credible curriculum vitae was submitted into evidence and she testified that she prepared the document and that it is up to date and accurate. (P – S).] She testified that the private school program overview offered into evidence is current. (P – J). The private school program speaks of 2e students, and a multisensory approach. 2e students are students who are both gifted and also present with one or more neuro diversities - special education need or vulnerability. A multisensory approach means visual, auditory, and kinesthetics are all included within the private school teaching and learning, along with teaching techniques such as Orton-Gillingham. The private school uses a multisensory approach because the students work better when they have multiple modes of content. The private school uses CPS to develop self and social awareness, self-advocacy skills, and communication skills, etc ^[3]. The private school also uses PBIS and has a learning skills class which explicitly teaches different types of executive functioning and self-advocacy skills. The private school uses the self-regulation strategy development (SRSD) program in conjunction with the literacy program. SRSD is a research-based regulation program for students who typically have vulnerabilities with written expression. It includes a combination of graphic organizers, pneumonic devices, self-talk checklists and protocols that allows a student to help organize themselves. The student identifies any blocks that they might have and finds solutions for overcoming those obstacles and blocks with either a self-talk technique, another regulation technique, or graphic organizer that helps with organization and planning. In addition to the core teachers, the private school also has educational staff that works with the students for electives and art, school psychologists and therapists (speech and OT), and literacy and learning specialists. In addition to the typical teacher duties, the teachers are also advisors for a small group of students to track the students’ academic, social/emotional and behavioral successes, teach learning skills, and runs basis (a time where students are able to receive 1:1 intervention, supports, remediation and or acceleration, with teachers based upon their needs). The student’s class has seven students. The small class size allows for individualized support for students and allows the private school to differentiate the instruction for every student in a class. Each student has their own education plan that's tailored to them, and that is tweaked based upon a core unit that the teachers are working with at that time. All teachers have advanced degrees in their content area, certification and at least five years or more of teaching experience. The school psychologists work with the students once a week and as needed, and works with families, outside therapists, and the teaching team in order to create a wraparound support system for a student including academic, social/emotional and behavioral supports. All psychologists have advanced degrees as well as years of experience working in the field. The speech and occupational therapists are licensed and are available to work with students based upon whatever their IEP mandates for their needs, they offer supports in classrooms, and they help to advocate for the students and their needs. There are literacy and math specialists that push in and pull out of the classrooms. There is professional development every Wednesday for 2 hours after school, once a month full day, three weeks before the beginning of school, and teachers may choose other professional development opportunities in the summer or over breaks. The student’s team consists of specialists, therapists, teachers, and the leadership team. The teams communicate about students through email groups, meeting once per week, through case conferences and on an as needed basis. Every student at the private school has their own confidential file that includes information on their neuropsychological evaluations, other evaluations, IEPs, portfolio work, prior work, and previous educational settings. She is familiar with the student as she is his ELA teacher, and she reviewed the student’s file in preparation for the hearing. The student has a neuropsychological and educational evaluation in his file. ( P – N). She believes that the student’s neuropsychological evaluation is accurate. The student is creative, social, and is very interested in lots of hands-on exploratory learning. The student uses his creative talents to seek alternatives to what would normally be a traditional academic path. The vulnerabilities that she’s observed with the student are attention, impulse control, and working memory and processing. The student is able to be hyper-focused and concentrate on one thing, but only for short periods of time ^[4]. The school makes sure that there are multiple alternatives of things that the student can work on in order to show or demonstrate understanding. The student needs significant support with time management and task completion skills. The private school helps the student with this by breaking down tasks into smaller parts and action steps. He requires redirection, reminding, and constant intervention to make sure that he sticks with the timeline and can come back to things when he loses attention on them. Writing is physically painful and difficult for the student. She has worked with the OT to assist the student, the private school obtained specialized pencils, grippers and paper to help the student with fine motor hand skills, and the private school has also provided AT (computer, talk to text, and scribing) for classwork, homework and projects. As a result, the student is able to verbally articulate things much better but needs support and prompting to develop his ideas and writing, and to extend his sentences. The private school provides the student with flexible deadlines and, at times when the student is not ready to engage with writing in the class, he is provided with something else to do like read, work on a physical model of something, or assist another classmate. As to his executive functioning skills, the student needs materials management, so the private school does constant checks with the student throughout the day, reminders, redirecting and checklists (laminated and on his computer) to assist the student. She has observed anxious behaviors in the student, and it is difficult for the student to self-regulate back down, so the private school has supported the student by having designated nooks where he can go to take time out, to cool off, or he can take walks, the private school also provides the student with fidgets and hand manipulatives. Also, acting as a mentor for younger students in other classrooms helps the student to self-regulate and the school psychologist is always available if he needs a little extra support or help with breathing techniques, talking things out, or anything else he needs. The private school helps the student with paying attention by providing a lot of redirection, reminders, embedded breaks during lessons, providing multiple modes of learning, and doing things in smaller increments and blocks. She believes that the student is benefiting from the strategies and interventions that the private school is providing. The student has made progress. At the beginning of the SY, the student was reluctant to engage at all, he would not write anything, would not engage in discussions, and would often talk over people, but by the end of the SY the student was engaging and was often ahead of his class. The private school was appropriate for the student for the 2022-23 SY.

Witness #2 – Live Testimony

She is the student’s mother. The student attended the private school for both the 2021-22 and 2022-23 SYs. The student’s learning challenges are organization, focus, planning, task management, task initiation, executive functioning, and readiness to learn skills. She participated in the December 13, 2021, IEP meeting for the student. There were participants from the private school at the IEP meeting. She did not agree with DOE’s recommendation of a general education class and OT, and she expressed this to DOE, but they did not respond. She did not agree with the class size of 25 or 30:1 as such a class would not offer sufficient individual support, would be overwhelming for the student and it would be difficult for him to focus, stay on task and to understand or retain directions. The student has a slow processing time and needs things to be broken down with breaks in between. The student is dysgraphic, and has issues with self-regulation, and an inability to sit still. She had the neuropsychological evaluation of the student done in November 2021 because the student was having challenges and she needed definite confirmation as to what those challenges were. (P – N). This evaluation was sent to DOE. (P – O). A letter was also sent to DOE and there was no response. (P – C). She was willing to attend another IEP meeting for the student if DOE had asked her to and she would have brought the student for DOE to perform further evaluations of the student if they needed to. If DOE had recommended an appropriate school, she would have sent the student. DOE sent a SLL, and a letter was sent on her behalf in response to the SLL asking to visit the recommended placement, but DOE never contacted her about visiting the placement. (P – D). A TDN was sent on her behalf stating that the student would be unilaterally placed at the private school. There was no contact from DOE after this letter either. (P – E). She had signed the contract with the private school in April, but she was still open, as late as August, to accepting an appropriate placement had one been offered to the student because she had the option of getting out of the contract with the private school if DOE provided an appropriate placement. The tuition for the private school is $86,250. (P – M). She has not yet paid the tuition because she does not have the money to pay it. The private school offered her a monthly payment plan and she has paid approximately $700 to the private school so far. She is responsible for the total tuition cost if she loses this impartial hearing. She is seeking and award of reimbursement and direct payment of any outstanding balance of the tuition. The student is doing well at the private school. He no longer refuses to go to school, she has seen growth in his willingness to do certain tasks and with needling less supervision, he has more of a willingness to try to write, and he is getting better with transitioning from one activity to another. The private school was appropriate for the student for the 2022-23 SY.

ISSUE

The issues are whether DOE is required to fund tuition and/or tuition reimbursement in relation to the parents’ unilateral placement of the student at the private school?

RULE OF LAW

Tuition Reimbursement – The 3-Prong Burlington/Carter Analysis The issue of whether a parent is entitled to tuition reimbursement for unilaterally placing their child at a private school is governed by the three-prong Burlington/Carter analysis. See School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985), and Florence County School District Four v. Carter, 510 U.S. 7 (1993). Burlington/Carter provides that a Board of Education is required to pay for educational services obtained for a child by the child’s parents, (1) if the services offered by the Board of Education were inadequate or inappropriate, (2) the services selected by the parents were appropriate, and (3) equitable considerations support the parents’ claim. First Prong States receiving public funds under the IDEA are required to provide FAPE to “all children with disabilities.” 20 U.S.C. § 1412(a)(1)(A); see Bd. of Educ. v. Rowley, 458 U.S. 176, 179 (1982). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written Individualized Education Program (“IEP”) (34 C.F.R. § 300.13). 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). The IDEA directs that a determination as to whether a student received a FAPE must be based on substantive grounds and/or procedural inadequacies. 20 U.S.C. §1415(f)(3)(E). 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, 2017 WL 1066206, 137 S.Ct. 988, 69 IDELR 174 (U.S. Mar 22, 2017). If a procedural violation has occurred, relief is warranted only if the procedural violation affected the student's right to a FAPE. 8 NYCRR §200.5[4]; J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 (2d Cir. 2000). Specifically, a procedural FAPE violation has occurred if the district’s alleged procedural inadequacies: (a) impeded the student’s right to a FAPE, (b) significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provision of a FAPE to the Student, or (c) caused a deprivation of his educational benefits. 20 U.S.C. § 1415(f)(3)(E)(ii); 34 CFR 300.513(a)(2); 8 NYCRR 200.5(j)(4)(ii); Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 (2007)

Second Prong The appropriateness of the parents’ choice turns on whether the chosen school “is reasonably calculated to enable the child to receive educational benefits.” Gagliardo v. Arlington Central School District, 489 F.3d 105 (2d Cir. 2007). A unilateral placement is only appropriate if it provides education instruction specifically designed to meet the unique needs of a handicapped child. Id. The parents’ choice must be “appropriate,” “not . . . perfect.” Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356 (2d Cir. 2006). Parental placements are not subject to the same mainstreaming requirements as a school district placement. C.L. v. Scarsdale Union Free School Dist., 744 F.3d 826 (2d Cir. 2014). The private school placement must be likely to produce progress, not regression.

Third Prong The Individuals with Disabilities Education Act (IDEA) provides that an award of tuition reimbursement may be reduced or denied if (1a) at the most recent IEP meeting, prior to their removal of the child from public school, the parents did not inform the CSE that they were rejecting its proposed placement and that they intended to place their child in a private school at public expense or (1b) the parents did not provide the school district with written notice of such information ten business days before such removal; (2) if the district prior to parent’s removal, informed the parent of its intent to do an evaluation of the student but the parents did not make the child available for the evaluation or (3) upon a judicial finding of unreasonableness with respect to actions taken by the parents. 20 U.S.C. 1412(a)(10)(C)(iii). Factors relevant to equitable considerations include whether the withdrawal of the student from public school was justified, whether the parent provided adequate notice, whether the amount of the private school tuition was reasonable, possible scholarships or other financial aid from the private school, and any fraud or collusion on the part of the parent or private school. E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014].

Burden Of Proof

The burden of proof, including the burden of persuasion and burden of production, is on the DOE to show that it provided FAPE to the student, except in cases involving a unilateral placement, where the parent must prove the appropriateness of the unilateral placement. Thus, the school district bears the burden of proof on the first and third prongs of the Burlington/Carter test and the parent has the burden of proof for the second prong. See N.Y. Educ. Law § 4404(1)(c).

APPLICATION OF LAW

As a preliminary matter, I find that the DOE failed to procedurally provide the student FAPE in that DOE failed to properly assess the student, did not consider the parent’s input, and did not provide the student with an appropriate placement for the 2022-23 SY. The DOE also failed to substantively provide the student FAPE, as is demonstrated in the application of the Burlington/Carter analysis below.

The DOE has failed to meet its burden that it provided the student with a FAPE. DOE was represented at the hearing but did not provide any witnesses or disclosures and did not put on a prong I case. In addition, the student presents with school-related anxiety, poor selfregulation, executive functioning challenges, poor task-management and task-completion skills, and sensory processing issues that cause him to become easily overwhelmed. Yet, the CSE’s ignored the recommendations contained in the student’s independent evaluation for a smaller class size, ignored that the student would be overwhelmed in a general education environment, failed to include goals and management needs that addressed the student’s executive functioning deficits, and failed to conduct an FBA for the student even though it was aware that the student was prone to behaviors like withdrawal, distractibility, anxiety and dysregulation as a result of sensory overstimulation. Also, DOE did not provide the parents with any information about the recommended placement. DOE’s recommended education program was not reasonably calculated to enable the child to make progress appropriate in light of his circumstances. The student was not provided a FAPE for the 2022-23 SY.

The parents have sustained their burden of demonstrating the appropriateness of the private school placement. The private school caters to 2e students and uses a multisensory approach to learning. There are only seven students in the student’s class which allows for individualized support. The private school uses CPS to develop self and social awareness, selfadvocacy skills, and communication skills. There is a learning skills class which teaches different types of executive functioning. In addition to the core teachers, the private school also has educational staff, school psychologists and therapists (speech and OT), and literacy and learning specialists. To address the student’s short concentration, the private school makes sure that there are multiple alternatives of things that the student can work on. The student needs significant support with time management and task completion skills, so the private school helps the student by breaking down tasks into smaller parts and action steps. Writing is physically painful for the student, so in addition to providing OT, the private school obtained specialized pencils, grippers and paper to help the student with fine motor hand skills, and the private school has also provided AT (computer, talk to text, and scribing) for classwork, homework and projects. The private school provides the student with flexible deadlines to assist with time management. The student exhibits anxious behaviors, so the private school has supported the student by having designated nooks where he can take time out, he can take walks, provides the student with fidgets and hand manipulatives and the school psychologist is always available. Furthermore, the student has made progress. At the beginning of the SY, the student was reluctant to engage, he would not write, and would often talk over people, but by the end of the SY the student was engaging, was often ahead of his class, no longer refused to go to school, had become more willing to do certain tasks with less supervision, was more willing to try to write, and has gotten better with transitioning from one activity to another. The private school program is appropriate to address the student’s academic and other needs and is reasonably calculated to enable him to receive educational benefits.

The DOE has failed to meet its burden that the equities were not in the parents’ favor. DOE did not put on a prong III case. Absent proof otherwise, I find that the equities favor the parent. There is no evidence that the parents did not attend the IEP meetings, that the parents did not provide the district with a TDN, that the parents were not cooperative with evaluations or that there was unreasonableness or wrongdoing on the part of the parents. Here, equitable considerations favor the parent.

CONCLUSION

I find that DOE failed to provide the student with a FAPE, the parent’s unilateral placement of the child at the private school was appropriate and the equities favor the parents. Accordingly, the parents are entitled to direct payment of the tuition to the private school for the 2022-23 SY. The total cost of the unilateral placement of the student at the private school for the 2022-23 SY as per the tuition contract is $86,250. (P – M). Parent testified that she paid $700 towards the tuition. The parents should be reimbursed for this amount paid. The balance owed to the private school is $85,550 (= $86,250 - $700). DOE must fund the balance of the student’s tuition cost of $85,550 and must reimburse the parent $700. There is no transportation award as parent stated transportation was no longer an issue as the SY has ended. Parents did not provide any evidence to support an award for reimbursement of transportation costs. Parent did not make an argument for, or submit evidence in support of, any compensatory or additional educational services or for reimbursement/payment of any interest, late fees, or any other expenses. Accordingly …

ORDER

Based upon the foregoing, it is hereby:

1. ORDERED that the New York City Department of Education failed to provide the student a FAPE for the 2022-23 SY;

2. ORDERED that DOE make direct payment to the private school in the amount of $85,550 for the balance of the student’s tuition for the 2022-23 SY, within 45 days of this decision;

3. ORDERED that the DOE will reimburse the parents $700 for monies they have personally paid in connection with the student’s tuition at the private school for the 2022-23 SY, within 45 days of proof of payment (bank statement for all checks, credit card statement, PayPal payments, Venmo, etc.).

IT IS SO ORDERED.

Dated: July 17, 2023

BLUETH BROMFIELD

BLUETH BROMFIELD, Esq.

Impartial Hearing Officer

EXHIBITS

DEPARTMENT OF EDUCATION EXHIBITS

None

PARENT EXHIBITS

A. 3/8/23, Impartial hearing request, (10 pp.)

B. 3/9/23, DOE acknowledgment of receiving the impartial hearing request, (2 p.)

C. 3/10/22, E-mail with attached letter to REDACTED and REDACTED, (5 pp.)

D. 4/11/22, E-mail with attached letter to REDACTED, REDACTED, and REDACTED, (3 pp.)

E. 8/17/22, Ten-day letter, (5 pp.)

F. 9/2/22, DOE response to document “E”, (1 p.)

G. 2/9/23, E-mail with attached letter to REDACTED and REDACTED with attached letter, (3 pp.)

H. 3/13/23, Notice of appearance, (1 p.)

I. and 3/14/23, E-mail correspondence regarding the DOE’s response to the impartial hearing request with the attached 3/13/23 DOE response to the impartial hearing request, (3 pp.) 3/13/23

J. 2022-2023, REDACTED School program overview, (3 pp.)

K. Undated, Weekly schedule, (1 p.)

L. 4/30/23, Attendance report, (1 p.)

M. 4/19/22, Enrollment agreement for 2022-2023, (20 pp.)

N. 2/10/22, E-mail to REDACTED, REDACTED and REDACTED with attached November 2021 neuropsychological and educational evaluation report, (22 pp.)

O. 2/10/22, 2/13/22, and 2/15/22, E-mail correspondence between the parent and the DOE attached November 2021 neuropsychological and educational evaluation report, (23 pp.)

P. Sept. 2021 to Jan. 2022, Progress report, (23 pp.)

Q. Jan. 2022 to June 2022, Progress report, (23 pp.)

R. 2022, Progress report, (4 pp.) S. 2023, Curriculum Vitae of REDACTED, (4 pp.) Fall

IHO EXHIBITS

I. 12/13/21 and 1/19/23, IEPs, (40 pp.)

NOTICE OF RIGHT TO APPEAL

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

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

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

Footnotes

[1] The Hearing Officer Exhibits, if any, will be referred to as “(IHO- (followed by a roman numeral))”; Petitioners Exhibits, if any, will be referred to as “(P-(followed by a letter))”; and, Respondent Exhibits, if any, will be referred to as “(R-(followed by a number))”. References to the hearing transcript, if any, are denoted as (TR, (followed by a page number)).

[2] There were two IEPs that were in effect for the student for the 2022-23 SY – a December 13, 2021 IEP with a December 27, 2021 service date and a January 19, 2023 IEP with a February 15, 2023 service date. (IHO - I). The January 19, 2023 IEP recommended a Integrated Co-Teaching class for all core subjects in a NYC DOE Non- Specialized District School and the following related services: Counseling Services (CS), Individual, 1 x 40 minutes per week; OT, Individual, 1 x 40 minutes per week; OT, Group, 1 x 40 minutes per week; and AT, Touchscreen Tablet, Individual, Daily for the school day. Parent states that they did not address the January 19, 2023 IEP in the DPC because that IEP is not relevant as the student was entitled to an appropriate IEP in time for the start of the 2022-23 SY. However, parents did note their disagreement with this IEP in a February 8, 2023 letter to DOE. (P -G). DOE did not defend either IEP in this case.

[3] CPS is a way for the adults in the school to communicate a noticing (something that the student is doing wrong or an issue that the student is having) that a student has and then engage with the student to find solutions for it. Once a staff member observes a noticing with the student, the CPS process begins by working with the teachers and the school psychologist on the team for that student to discuss the kinds of behaviors being observed with that student, they then develop a goal and meets with the student to talk about it, the team then asks the student deeper and deeper questions until the student can identify why they are doing what they’re doing, the team collaborates to come up with a solution, then communicates the solution to the entire staff and then it is monitored by the teachers.

[4] So, an example of how the private school assists the student is where the student had a project where he wanted to create a computer program which requires a lot of cerebral work, but the student would not be able to focus on such a cerebral task for very long. So, the school provided the student with a hands-on leather work project that he could do side by side with the computer program project, so that once he stops focusing on the computer programing, he has a hands-on project to turn his attention to.