New York City Department of Education, Impartial Hearing Decision

Case Number: 597354 – NYC: 246682

FINDINGS OF FACT AND DECISION

Case Number: 246682 NYS Case ID Number: 597354 Student’s Name: [REDACTED] Date of Birth: [REDACTED] District: [REDACTED] Hearing Requested by: Parent Date of Request: March 15, 2023 Date of Hearing: June 15, 2023 Record Close: July 7, 2023 Date of Decision: July 7, 2023 Hearing Officer: Blueth Bromfield, Esq.

NEW YORK STATE EDUCATION DEPARTMENT

IMPARTIAL DUE PROCESS HEARING

x [REDACTED], by and through his/her Parent(s), Petitioners, FINDINGS OF FACT

AND DECISION

- against -

Case No. 246682 THE NYC SCHOOL DISTRICT,

BLUETH BROMFIELD, ESQ.

Respondent. 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 on or around March 15, 2023, (P - A)^[1]. The resolution period expired without the parties reaching an agreement. This IHO was appointed on March 16, 2023. A pre-hearing conference in this matter was held on, April 20, 2023. A closed hearing was held on June 15, 2023. The initial compliance date was July 28, 2023. One extension was granted extending the compliance date to July 28, 2023. The record closed on July 7, 2023.

BACKGROUND

The following is per the parent’s Due Process Complaint (DPC) and evidence. [REDACTED] (the student), born [REDACTED], is a child with a disability in need of special education and/or related services. The school years (SYs) at issued in the DPC are the 2020-21, 2021-22, and 2022-23 SYs. The student was classified as a preschooler with a disability for the 2020-21 SY, attended [REDACTED] in kindergarten for the 2021-22 SY, and was attending [REDACTED] in first grade for the 2022-23 SY. For the most recent SY, 2022-23, the student was classified as Learning Disabled. He struggles in core academic areas and has a history of inadequate progress, poor grades, and “promotion in doubt” status. The student’s current instructional/functional levels are kindergarten for both reading and math. The student’s classification and eligibility for special education supports and services are not in dispute.

The recommendations of the IEPs relevant to the SYs at issue are as follows: • January 29, 2020, and February 2, 2021 IEPs. The CSE recommended related services of:

Special Education Itinerant Teacher (SEIT) Services, Direct Group, 5 x 1 hour per week; SEIT Services, Indirect, 1 x 1 hour per week; Speech and Language Therapy (SLT), 2:1, 2 x 30 minutes per week; Occupational Therapy (OT), 2:1, 2 x 30 minutes per week; and

Physical Therapy (PT), 2:1, 2 x 30 minutes per week. (P – E & D). • November 8, 2021, and November 9, 2022 IEPs. The CSE recommended an Integrated Co-Teaching (ICT) class for ELA and Math in a general education classroom in a DOE Non-Specialized District School with related services of: OT, Individual, 2 x 30 minutes per week; PT, Individual and Group of 2 (respectively), 1 x 30 minutes per week; SLT, Individual, 1 x 30 minutes per week; and SLT, Group of 3, 2 x 30 minutes per week. (P –

C & B).

Parent disagrees with the recommendations in the IEPs for the following reasons: the CSEs failed to account for and respond to the student's lack of adequate progress, failed to appropriately individualize and modify his placement and program recommendations, and failed to provide adequate specially designed instruction; the IEPs were all substantively deficient as they failed to describe the student’s present levels of performance and the goals were not measurable or too vague; upon information and belief, the CSE’s during the years in question were improperly compromised; DOE failed to evaluate the student in all suspected areas of disability as the student’s last psychoeducational evaluation was February 2020; the IEP mandated related services have not been provided consistently during the school years at issue; and at all times relevant to this hearing request, DOE failed to provide the parent with notices, procedural safeguards, and other pertinent information regarding the special education process. Parent claims that the student has consistently exhibited learning difficulties in school, has failed to adequately progress, and the student requires Special Education Teacher Support Services (SETSS) provided on an individual 1:1 basis, 1:1 specialized reading/math/writing instruction, a 1:1 teaching assistant, or a combination of these services. The student’s teachers have repeatedly told the parent about the student’s poor academics and struggles in school. Parent repeatedly requested more help for the student as the services and support he has received so far have not been effective. Parent feels that the CSE should have substantially increased the student’s services and supports. Out of concern for the student’s lack of progress, the parent took the student to the [REDACTED] (the agency) for testing to assess his academic deficits and areas of need. The agency’s testing indicated that the student has significant skill gaps in his reading, writing, and math abilities.

Parent maintains that DOE denied the student a FAPE for all three SYs at issue. The parents are seeking relief of a finding that the district denied the student a FAPE; an order directing the DOE to fund an independent educational evaluation (IEE) – a neuropsychological evaluation; order that the student be provided with an appropriate IEP that addresses the abovenoted concerns, incorporates the recommendations of the requested evaluation, and, at a minimum, provides for increased supports and services; an order that the student be provided additional services in the form of 516 hours of 1:1 tutoring at a rate of $110.00 per hour; an order directing the DOE to pay the agency $295 for the cost of diagnostic testing and $100 for the standard registration fee; and transportation to and from the HLC in the form of MetroCards for the student and parent.

THE HEARING

The following persons appeared at the hearing:

June 15, 2023 For the Student: [REDACTED], Parent Representative [REDACTED], Center Director at the agency, (Witness #1) [REDACTED], Parent, (Witness #2)

For the Department of Education:

NONE

The parent’s representative argued that the DOE recommended programs have not been appropriate for the student. The student has a history of inadequate academic progress, struggles in core academic areas and promotion in doubt status, as well as poor grades. His most recent IEP indicates that he's well below grade level, does not know the building blocks to read, his phonological awareness is impacted, his decoding is impacted, and he doesn't have letter sound knowledge. Additionally, for the entire 2022-23 SY, the student was not provided with any OT or SLT services, despite his IEP mandating that these services be provided. DOE has the burden of production and persuasion in all matters at this hearing. DOE has not appeared, has failed to provide any evidence or witnesses, and has not given a defense to the allegations. Therefore, DOE has failed to meet its burden and the only issue left for the IHO is the relief. Parent has requested an IEE in the DPC specifically disagreeing with DOE’s February 16, 2020, psychoeducational evaluation^[2]. The parent should be awarded an IEE at market rate with an order that the CSE convene within 20 days of receipt of that evaluation to incorporate the recommendations of the evaluation and develop an appropriate IEP that, at a minimum, provides for increased services and supports. The student is also entitled to compensatory services for the denial of FAPE extending over three SYs. Specifically, the student is entitled to 516 hours of 1:1 tutoring to be scheduled with the agency at parent's discretion without expiration date at the rate of $110 an hour. Parent further requests $295 in diagnostic testing and $100 for the agency registration fee, as well as transportation to and from the agency in the form of Metrocards for the student and parent. Also, because the student has not received OT and SLT services, the parent specifically requests 80 sessions of OT at 30 minutes per session at a 1:1 basis, as well as 120 sessions of SLT at market rate at a 1:1 basis. These numbers are quantitatively based on what the student should have received for the entire SY under his most recent IEP.

DOE did not appear at the hearing.

Relevant portions of the witnesses’ testimonies are as follows.

Witness #1 – Live Testimony

She is the Center Director at the agency. [The witness provided credible and relevant testimony as to her educational background, state licensing, certifications, and professional experience]. Her duties and responsibilities at the agency include being responsible for oversight of all the operations of the center, including student testing and instruction, the hiring, training, and management of the full and part time staff, the conferencing with parents and contacting the schools that the students attend. The agency is a provider of supplemental instruction in basic academic skills, reading phonics, writing, math, study skills, exam prep, and subject tutoring for students in kindergarten through 12th grade. The agency is accredited and employs certified teachers. She became familiar with the student when he was assessed in March 2023. The results of the student’s testing are summarized in the student’s academic evaluation results^[3]. (P – I & K). Her impression of the student was that he was functioning well below where he was expected to be based on his age and grade level, no farther than middle of kindergarten. Given that the student will have completed first grade by the time he begins taking tutoring at the agency, the agency’s goal would be to bring the student to function independently at the end of second-grade level. Based on the student’s assessments and her experience, she feels that the number of hours of tutoring that the agency needs to bring the student to the end of second-grade level is 516 hours, consisting of 126 hours for reading, 130 hours for phonics, 125 hours for vocabulary/spelling, 60 hours of writing and 75 hours of math. (P – J). The agency charges $110 per hour of tutoring. The cost for the agency’s assessment is $295 and the registration fee is $100, neither of which has been paid by parent. It is conceivable that the student can complete the 516 hours of tutoring in a 12-month time period, depending on how intensively he attends tutoring, including the summer months.

Witness #2 – Affidavit Testimony

She is the student’s mother. The student attended school on a remote basis for the 202021 SY and was in person for the 2021-22 and 2022-23 SYs. The student is behind his same-aged peers in core areas like reading, math and writing. She does not believe that the student has received the help he needs for the SYs at issue. DOE continues to recommend placements and programs that have not been effective or appropriate. The student needs more special education assistance and individualized instruction. During the 2020-21 SY, a SEIT annual report dated December 19, 2020, stated that the student was experiencing delays and his 5 SEIT hours in a group should be increased to help the student to achieve IEP goals; however, despite this recommendation, DOE did not increase the student’s SEIT hours. The student continued to struggle and did not experience any meaningful progress. During the 2021-22 SY, the student continued to struggle with reading, writing and math. The CSE only recommended an ICT class for the student but did not provide for any 1:1 help or instruction. The student did not make any progress and his promotion was “in doubt”. For the 2022-23 SY, the student was again recommended for an ICT class, but it is not working. The student continues to fall behind his peers and is not achieving meaningful growth, as is evident in the student’s most recent IEP dated November 2022. DOE had failed to evaluate the student in all suspected areas of disability, which has contributed to DOE’s failure to develop an appropriate IEP for the student. Therefore, an independent neuropsychological evaluation should be awarded as part of the hearing. In addition, IEP mandated related services have not been provided consistently during the SYs at issue. The student has not received any SLT or OT services for first grade due to a lack of providers. She does not feel that the IEPs have been appropriate or that DOE has offered sufficient supports and services. The student is not progressing and needs additional supports and tutoring added to his IEP to succeed. The student was assessed by the agency in March of 2023. The assessment confirmed that the student was behind and needed remediation. She would like for tutoring services to be provided by the agency. She is comfortable with the agency and is confident that it can deliver appropriate remedial tutoring for the student. She will need Metrocards for herself and the student in order to access the agency’s services, as she cannot afford it otherwise.

ISSUE

The issues are whether the district failed to provide the student a FAPE for the 2020-21, 2021-22 and the 2022-23 SYs? whether the student is entitled to compensatory education for the denial of FAPE? Whether the student is entitled to compensatory services for related services not provided? And, whether parents are entitled to a publicly funded IEE?

RULE OF LAW

Free and Appropriate Education - FAPE

The IDEA is a comprehensive statutory framework established by Congress to ensure that students with disabilities are afforded FAPE. See, 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 US 49 (2005). 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). For an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression. This progress must be meaningful; i.e., more than mere trivial advancement. The student's recommended program must also be provided in the least restrictive environment with non-disabled peers. Walczak v. Florida Union Free Sch. Dt.,142 F.3rd 119 (2nd Cir. 1998). An appropriate program begins with an IEP which accurately reflects the results of the 1) student’s present levels of performance; 2) provides for the use of appropriate special education services to address the child's special education needs; 3) establishes annual goals which are related to the child's educational deficits; 4) identifies transitions services; 5) provides a start and end date to the recommended program and services; and 6) criteria and evaluation procedures for the measurement of goals. Id.

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).

Independent Educational Evaluations

An IEE is “an individual evaluation of a student with a disability or a student thought to have a disability, conducted by a qualified examiner who is not employed by the public agency responsible for the education of the student.” 8 NYCRR § 200.1(z). “If the parent disagrees with an evaluation obtained by the school district, the parent has a right to obtain an independent educational evaluation at public expense, 8 NYCRR § 200.5(g)(1). An IEE may be requested by parents, 8 NYCRR § 200.5(g)(1), or by an impartial hearing officer, 8 NYCRR § 200.5(g)(2). If an IEE at public expense is requested by parents, “the school district must, without unnecessary delay, either ensure an independent educational evaluation is provided at public expense or file a due process complaint notice to request a hearing to show that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria” 8 NYCRR § 200.5(g)(1)(iv). The regulations do not provide limitations or guidance about hearing officer requests or directives for IEEs.

Compensatory Services

A hearing officer may award compensatory education relief in the form of supplemental special education or related services when there has been a denial of FAPE (see P. v. Newington Bd. of Educ., 546 F.3d 111, 123 [2d Cir. 2008]. Compensatory education may be awarded to students under the age of twenty-one (see Student X. v. New York City Dep't of Educ., 2008 WL 4890440, [E.D.N.Y. Oct. 30, 2008]). An award of compensatory services may be appropriate if a student has been denied appropriate services for an extended period of time and if such deprivation of instruction can be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation. An award of additional services should aim to place a student in the position he or she would have been in had the district complied with its obligations under the IDEA. (P. v. Newington, 546 F.3d 111, 123 (2d Cir. 2008)). Compensatory education awards may include payment for out-of-pocket educational expenses incurred by a parent for services not delivered to a student, provided the school district’s failure to provide those services constitutes a denial of FAPE and the services are an appropriate alternative. Foster v. Bd. Of Educ. of the City of Chicago, 611 Fed. App’x 874, 878-79 (7th Cir. 2015)

A compensatory education award can be crafted by either a “quantitative” or “qualitative” approach. Under the quantitative approach, the compensatory award is based on the amount of time that comprised the FAPE deprivation (in which a student is entitled to compensatory education for a period equal to the period of FAPE deprivation). Under the qualitative approach, the focus is on a student’s needs and is based on the specific educational deficits that resulted from the FAPE deprivation (with the compensatory award being the specific services needed to correct those deficits).

Transportation

The IDEA specifically includes transportation, as well as any such developmental, corrective, and other supportive services necessary in order to assist a student to benefit from his or her special education, in its definition of related services (20 U.S.C. § 1401[26]; see 34 CFR 300.34[a], [c][16]). In addition, State law defines special education as "specially designed instruction . . . and transportation, provided at no cost to the parents to meet the unique needs of a child with a disability," and requires school districts to provide disabled students with "suitable transportation to and from special classes or programs" (Educ. Law §§ 4401[1]; 4402[4][a]). Transportation as a related service can include: travel to and from school and between schools; travel in and around school buildings; and specialized equipment, such as special or adapted buses, lifts, and ramps (34 CFR 300.34[c][16]). Special transportation must be included on a student's IEP if required to assist the student to benefit from special education (Application of a Child with a Disability, Appeal No. 03-053; see Questions and Answers on Serving Children with Disabilities Eligible for Transportation, 53 IDELR 268 [OSERS 2009]; Letter to Smith, 23 IDELR 344 [OSEP 1995]). If a CSE determines that a student with a disability requires transportation as a related service in order to receive a FAPE, the district must ensure that the student receives the necessary transportation at public expense (8 NYCRR 200.1(ww)).

Burden of Proof

School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 [2d Cir. 2012]). Since this case does not involve a unilateral placement/tuition reimbursement claim, the DOE has the burden of proof on all FAPE issues.

APPLICATION AND CONCLUSIONS OF LAW

After considering all the evidence, the arguments of counsel, as well as the legal research, I find as follows. The DOE has failed to meet its burden that it provided the student with a FAPE for all SYs at issue. DOE did not appear and did not provide any witnesses or disclosures. There is nothing to show that the DOE’s recommended education program was reasonably calculated to enable the child to make progress. Further, procedurally, DOE failed to implement the services as recommended in the IEP, failed to properly evaluate the student, and failed to provide the parent with notices, procedural safeguards, and other pertinent information regarding the special education process. Substantively, both DOE’s own IEP and the agency assessments, indicate that this first-grade student’s functional/instructional level is at the kindergarten level and the student is not progressing. In addition, the CSE did not recommended any 1:1 help or instruction even though the student was functioning below where he should for his age and grade level and had received promotions “in doubt”. This clearly demonstrates that the IEP is not reasonably calculated for the student to make progress. I credit the parent’s testimony and evidence. I find that the student was denied a FAPE for the 2020-21, 2021-22 and 2022-23 SYs.

I find that the student is entitled to compensatory education. DOE had denied the student a FAPE and the parent has demonstrated that the agency is appropriate. The agency has thoroughly assessed the student, is a provider of supplemental instruction for students in kindergarten through 12th grade, is accredited, and employs certified teachers. While I find that the student is entitled to the tutoring services, I do not agree, as parent argues, that the student should be awarded 516 hours of tutoring with no expiration date and covering prospective services through to the end of second grade. An award of additional services should aim to place a student in the position he or she would have been in had the district complied with its obligations under the IDEA. The student has finished first grade. At the current moment in time, had DOE complied with its obligation, the student’s functional/instructional level should have been at a first-grade level. The parent wants services awarded to bring the student to the end of the second-grade level. But such an award of funding for tutoring services beyond the first-grade level, would amount to an award of “prospective services [that] are disfavored as a matter of law” (VW ex rel. PW v. New York City Dept. of Educ., 2022 WL 3448096, at *7 [S.D.N.Y. 2022], citing Eley v. District of Columbia, 2012 WL 3656471, at *11 [D.D.C. 2012]). The 516 tutoring hours sought to cover three SYs worth of instruction (kindergarten, 1st grade, 2nd grade); however, the student has only completed two grades (kindergarten and 1st grade). Therefore, the student would be awarded two-thirds of the 516 requested tutoring hours. Using the qualitative approach, the student would be entitled to 341 tutoring hours (consisting of 83 hours for reading, 86 hours for phonics, 82 hours for vocabulary/spelling, 40 hours of writing and 50 hours of math). Parent also wants the award of tutoring services to be awarded without an expiration date; however, an order providing the student with no expiration date to utilize the compensatory tutoring services calls into question whether the student would derive any educational benefit from services designed to address the student’s immediate needs but which are provided years down the line and whether such services would timely place the student in the first-grade position he should have been in, but for the denial of FAPE. In addition, witness #1 testified that the tutoring services can be used within a 12-month period. Parent is entitled to direct payment for the agency’s registration fee, cost of assessment and tutoring sessions received by the student at a rate of $110 per hour. The student is also entitled to transportation to and from the tutoring services. See NY Educ. Law § 4402[4][a]. Accordingly, the student will be awarded $395 for the assessment and registration fees, compensatory education of 341 tutoring hours provided at $110 per hour to be used within one year and Metrocards for both the student and the parent to get to and from the tutoring services. I find that the student is entitled to an award of compensatory services. Parents persuasively testified that the student has not received any OT or SLT services for the entire SY because a provider was not available. OT and SLT services are needed to place the student in a position in which he would have been had the district complied with its obligations under the IDEA. Using the quantitative approach to compensatory services, the student is entitled to 80 sessions of OT at 30 minutes per session on a 1:1 basis, as well as 120 sessions of SLT at 30 minutes per session on a 1:1 basis. DOE must fund the cost of the OT and SLT services at market rate for the entirety of the 2022-23 SY. I find that parent is not entitled to a publicly funded IEE. Parent argues that the regulations guarantee parents the right to obtain a publicly funded IEE once the parent disagrees with an evaluation. Parent states that they disagree with the last psychoeducational evaluation that was conducted by DOE in February 2020. However, while there is no statue on limitations for disagreeing with an evaluation, parent is outside of the time within which they should have expressed their disagreement with the psychoeducational evaluation. See D.S. v. Trumbull Bd. of Educ., 975 F.3d 152. Parent did not express their disagreement for this evaluation until the DPC in this instant case was filed on March 15, 2023. This was outside of the three-year timeframe for triennial evaluations. “Because the only evaluations that trigger a parent's right to an IEE at public expense are the initial evaluation and triennial reevaluations discussed in Section 1414 of the Act, a parent's right to an IEE at public expense ripens each time a new evaluation is conducted. The time within which a parent must express their disagreement with an evaluation and request an IEE depends on how frequently the child is evaluated. By default, triennial reevaluations must occur at least once every three years. 20 U.S.C. § 1414(a)(2)(B)(ii). Where, as here, a child is evaluated according to the default evaluation timeline, the parent must disagree with an evaluation within that three-year timeframe.” Id. Under these circumstances, here, before parent’s right to a publicly funded IEE is triggered, DOE must conduct a triennial psychoeducational evaluation as the last such evaluation was conducted more than three years ago. “There is simply no entitlement to a private evaluation before a public one has been taken because Plaintiffs cannot know whether the public evaluation "falls short" before it even exists.” Id., See also B.D. and K.D. ex rel. R.D. v. Eldred Cent. Sch. Dist., 2023 WL 3025308 (S.D.N.Y. 2023).

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 2020-21, 2021-22 and 2022-23 SYs.

2. ORDERED that DOE is directed to implement or fund, at a reasonable market rate, the following compensatory services: 80 hours of OT and 120 hours of SLT for the entirety of the 2022-23 SY.

3. ORDERED that DOE directly fund the $395 assessment and registration fee, and

341 hours of compensatory tutoring with the agency at a rate of $110 per hour.

4. ORDERED DOE must provide the parent with MetroCards to transport the parent and student to and from the above-mentioned tutoring services.

5. ORDERED that DOE conduct a psychoeducational evaluation of the student within 14 days of this decision.

6. ORDERED that the CSE is directed to convene a review meeting within 14 days of all evaluations and/or assessments being conducted to review and consider the results of the evaluations and modify the student’s IEP as appropriate. IT IS SO ORDERED. Dated: July 7, 2023

BLUETH BROMFIELD

_______________________________

BLUETH BROMFIELD, Esq.

Impartial Hearing Officer

EXHIBITS

DEPARTMENT OF EDUCATION EXHIBITS

NONE

PARENT EXHIBITS

A	Impartial Hearing Request, 3/15/23, 6 pgs.
B	Individualized Education Program, 11/9/22, 30 pgs.
C	Individualized Education Program, 11/8/21, 34 pgs.
D	Individualized Education Program, 2/2/21, 22 pgs.
E	Individualized Education Program, 1/29/20, 17 pgs.
F	Teacher Report for IEP Development, 10/26/22, 8 pgs.
G	Teacher Report for IEP Development, 10/29/21, 7 pgs.
H	Annual Report, 12/19/20, 3 pgs.
I	[REDACTED] Student Academic Evaluation Results, 3/6/23, 3 pgs.
J	[REDACTED] Individualized Prescribed Hours, 3/6/23, 2 pgs.
K	[REDACTED] Student Test Results, 3/6/23, 39 pgs.
L	Parent Affidavit: [REDACTED], 5/27/23, 6 pgs.

IHO EXHIBITS

NONE

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.

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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 (T (followed by a page number and line number)).

[2] “The IDEA and State and federal regulations guarantee parents the right to obtain an IEE … conducted at public expense if the parent expresses disagreement with an evaluation conducted by the district and requests that an IEE be conducted at public expense.” SRO 19-038 (citing 20 U.S.C. § 1415[b][1]; 34 CFR 300.502; 8 NYCRR 200.5[g]).

[3] The tests administered to the student were as follows. The Slosson Visual-Motor Performance test which assesses the student's perceptive ability and hand coordination. The student’s performance here was rated as good - within average range. The Wold Sentence Copying Test assessed the student's ability to copy text accurately. The student’s performance here was poor. The student had issues with handwriting, capitalization, spacing, and letter formation issues. The Slosson Oral Reading Test assessed site word recognition. The student was given a kindergarten level assessment here and performed poorly, more than a year below where he’s supposed to be. This suggests that he is unable to keep up with his class. The Shaw Phonetic Analysis is used to assess the student's sound symbol relationship mastery. The student’s performance here suggests that this is the performance of a student who's not yet finished kindergarten. The Rosner's Test of Auditory Perception is an assessment of the student's ability to hear the component parts of a word and to follow directions to change them in some way. The student’s results here placed him at a pre-kindergarten level and his performance suggested that his confusions are equal on the visual side and the auditory side. He's not able to see a symbol and associate it with the sound, and vice versa. The Reading Readiness Evaluation is administered to students who have confusions around the sound symbol relationships. The Boehm Test of Basic Concepts is an assessment of the student's recognition of words and understanding of words that are typically used in the classroom to give directions. The student scored 22 out of 50, which suggests that there are things that are being said to the student during the school day that he’s not understanding. The Burns and Roe Informal Reading Inventory is an assessment of the student's oral reading fluency and comprehension. Here, the student performed poorly - he got one question correct at the kindergarten level, no question correct at the first grade level, and got 25 percent of the questions correct at the second grade level. This suggests that the student’s comprehension is very poor. The student was given a writing sample and his written response was unintelligible, but his verbal response was understandable. This suggests that the student understood the assignment and could respond orally but not in writing. The achievement test in early literacy was a multiple-choice test to see if the student was able to recognize the right answer, but the student scored in the first percentile nationally. For the math achievement test, the student did better but he still only scored in the 19th percentile. This suggest that he had deep deficits in his math computation and problem solving. The student performed poorly on the math placement exam and had not developed skills that should have been mastered by the end of kindergarten or by the middle of first grade (where he was when the test was administered). The student was able to count to 20, but he couldn’t identify numbers even when they were in order up to 100, wasn't able to identify numbers out of order up to 20 and wasn't able to write the numbers on command.