New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 247086

Student’s Name: [REDACTED]

School District: [REDACTED]

Impartial Hearing Officer: Richard J. Zeitler, Jr.

Date of Filing: 03/29/2023

Hearing Requested by: Parent

Dates of Hearing: [REDACTED]

Record Close Date: 09/27/2023

Date of Decision: 10/24/2023 Case No. [247086]

Names and Titles of Persons Who Appeared [REDACTED]

For the Student:

[REDACTED], Esq.

For the Department of Education:

[REDACTED], Esq.

DOE School Psychologist

DOE Teacher

Names and Titles of Persons Who Appeared [REDACTED]

For the Student:

[REDACTED], Esq.

[REDACTED], Private School CSE Liaison

[REDACTED], (testifying) Parent

For the Department of Education:

[REDACTED], Esq.

Names and Titles of Persons Who Appeared [REDACTED]

For the Student:

[REDACTED], Esq.

[REDACTED], Ph.D., Neuropsychologist

For the Department of Education:

[REDACTED], Esq.

Names and Titles of Persons Who Appeared [REDACTED]

For the Student:

[REDACTED], Esq.

[REDACTED], (non-testifying) Parent

For the Department of Education:

[REDACTED], Esq.

Background

On March 29, 2023, the parents, by and through Parent Attorney, filed a due process complaint (DPC) against the New York City Department of Education (DOE or Department), on behalf of the Student, pursuant to the Individuals with Disabilities Education Act (“IDEA”). ^[1] The DPC asserts that the Student was denied a free and appropriate public education (FAPE), both procedurally and substantively, after the Committee on Special Education (CSE) developed an individualized education program (IEP) for the 2022-2023 school year that offered the Student a program in an Integrated Co-Teaching (ICT) class rather than the program recommended by the Student’s neuropsychologist. ^[2]

Procedurally, the DPC alleges the following. The team that developed the IEP was invalidly constituted.^[3] The team did not properly evaluate the Student and did not properly consider the Student’s existing evaluative material, and therefore it did not correctly identify her needs.^[4] Substantively, the DPC alleges the following. The Student’s Neuropsychologist recommended a class setting that is more restrictive than ICT, based upon specific findings in the Student’s evaluation, but the IEP team “cherry picked” the portions it wanted to reflect and to rely upon in its recommended program.^[5] As a remedy, the parents seek tuition reimbursement for the 2022-2023 school year. ^[6]

Procedural History

I was appointed the impartial hearing officer (IHO) over this matter on March 30, 2023.

On May 25, 2023, a pre-hearing conference was held, and I issued a Pre-Hearing Conference (PHC) Summary and Order the same day.^[7] I also issued Orders of Extension on May 25, 2023, June 16, 2023, and September 15, 2023.^[8] The Due Process Merits Hearing was held before me Case No. [247086]

on [REDACTED], [REDACTED], [REDACTED], and [REDACTED],^[9] wherein all the parties’ exhibits were admitted.^[10] The Department offered the testimony of the DOE School Psychologist and the DOE Teacher, while the Parent produced as witnesses the Private School CSE Liaison, the Student’s Neuropsychologist, and the testifying Parent.^[11] This decision follows.

Findings of Fact

The following is not in dispute. The Student is [REDACTED] years old, and is classified by the CSE as a student with a Learning Disability,^[12] with the following diagnoses: Specific Learning Disorder with impairment in reading and writing; Developmental Dyslexia; Neurodevelopmental Disorder with rote recall and automaticity defects; and Dysgraphia. ^[13] These diagnoses were confirmed during an evaluation performed by the Neuropsychologist between October 18, 2021, and October 29, 2021, while the Student was in Kindergarten. ^[14]

The Neuropsychologist found that the Student’s cognitive abilities, including intelligence, were in the Average to Superior range,^[15] but she exhibited “difficulty with automaticity and rote-learning” as well as with “encoding information in which she cannot attach meaning[,]” which are “areas of weakness [that] are classic hallmarks of a dyslexic profile[.]” ^[16] The Neuropsychologist also noted that the Student “evidenced weaknesses in organization, pacing, and sequencing, as well as susceptibility to fatigue due to a labored, effortful approach, all of which leave [the Student] susceptible to depleted confidence in her abilities.”^[17] The effects of these challenges were reflected in her academic scores, which included word reading in the 55th percentile, phonological awareness in the 47th percentile, rapid automatic naming in the 42nd Case No. [247086]

percentile, phonological processing in the 16th percentile, and reading comprehension in the 5th percentile.^[18] As for written expression, her alphabet writing was in the 68th percentile, but her spelling was in the 32nd percentile. ^[19]

Noting that the Student “is impressively intelligent and capable of performing beyond the scope in which she presents” and given that her “disabilities present as significant obstacles to her learning[,]” the Neuropsychologist “strongly recommended that she receive an IEP with specialized services and a full-time special education program[,]” specifically, inter alia, a “setting where she will receive targeted, research-based reading interventions implemented with fidelity, throughout the day, and with reinforcement . . . in an environment that provides a low student-to-teacher ratio and a specialized curriculum” and with “[t]eachers . . . trained specifically to remediate [the Student’s] learning deficits within a classroom of same-age peers who maintain similar learning difficulties.” ^[20]

On April 7, 2022, the CSE convened an IEP meeting and developed an IEP that described the findings of the Neuropsychologist’s report as the primary source for findings, but the team did not adopt the Neuropsychologist’s recommendations.^[21] Notwithstanding the Neuropsychologist’s report making numerous recommendations regarding a more restrictive program, the IEP’s “Management Needs” section states only that the Student “requires daily academic support, which will be provided through . . . an Integrated Co-Teaching (ICT) class” for the 2022-2023 school year, and that she “requires Speech/Language Therapy.”^[22] The specific recommended program for the 2022-2023 school year consisted of: ICT for English Language Arts (ELA), 15 periods per week; ICT for Math, 10 periods per week; ICT for Social Studies, 5 periods per week; and Speech-Language Therapy (SLT), two-30 minutes sessions per week (2x30). ^[23] Case No. [247086]

The Department’s Case

DOE Special Education Teacher

As its first witness, the DOE called the DOE Special Education Teacher (Teacher), who testified as follows. She attended the April 7, 2022, IEP meeting and served as the special education teacher at that meeting.^[24] The team considered multiple assessments, including the Neuropsychologist’s report, as well as “parental concerns and [it] weighed provider input” to assist it in “form[ing] a professional opinion about an educational program that would yield [the Student] an educational benefit . . . in the least restrictive setting.” ^[25]

The IEP team found that the Student’s “ability to apply word structure rules to formulate complete, semantically, grammatically correct sentences is moderately delayed” and, with respect to “language-based reading tasks, [she] had difficulty segmenting and blending cvc [consonant-vowel-consonant] words, and struggled to put two words together to form a compound word.”^[26] The team “developed a goal to target producing cohesive simple and compound sentences” and “goals targeting spoken phonemes and/or syllables to form words.” ^[27]

The team also found ICT best to address the Student’s needs for the 2022-2023 school year, because with ICT, “all students have access to the general education curriculum, however students still have opportunities for specialized instruction when needed[,]” including “more opportunities for 1:1 interaction[.]”^[28] The team considered a general education classroom with SETSS, and a more restrictive special education classroom with 12 students for one teacher and one teaching assistant (12:1:1), and while the Student was determined to need “more full-time special education support than what is provided in the General Education class . . . her needs were not so severe that she required a specialized setting” because “[t]he team believed that [she] could access the curriculum in an ICT and would benefit from being in a setting with typically developing peers.” ^[29] Case No. [247086]

On cross-examination, and upon further questioning, the Teacher testified as follows. At the time the IEP was developed, she was not the Student’s teacher and did not provide services to the Student, although there did come a time thereafter when she did provide the Student with academic intervention.^[30] She also did not perform any observation of the Student before the IEP meeting. ^[31]

The IEP team reviewed the Neuropsychologist’s report, although when testifying, the Teacher could not remember the diagnoses and believed that the Student could write her own name, even though the Neuropsychologist’s report noted that the Student struggled to write her own name.^[32] She also recalled that the Student “somewhat” had difficulty with rhyming skills. ^[33] She agreed that the Neuropsychologist’s report accurately reflected the Student’s needs,^[34] and she also agreed that the Student needed to develop her decoding skills and reading fluency. ^[35] The Student also wrote in “letter strings[,]” which “means [that] when she was writing . . . sentences to stories, and she was thinking of what she wanted to, to put down, she was maybe putting down the first letter of each word, altogether, rather than trying to s[p]e[ll] them out.” ^[36] ICT for the Student would have utilized a general education curriculum, and there was no fixed amount of time that the Student would work with the special education teacher as compared to the general education teacher. ^[37]

Per the IEP, the Teacher provided SETSS near the end of the 2021-2022 school year and, as the Teacher described it, the Student “was making very nice improvement with her listening, her rhyming, [and] her segmentation” during that time.^[38] The IEP team modified the program and switched the Student to ICT for the 2022-2023 school year because the team “thought [that] with her transition into first grade and some of her needs with her phonemic and phonological Case No. [247086] awareness, a class with th[at] level of supportive . . . teachers would serve her well.”^[39] The Teacher administered at least one of the “universal screener” assessments the DOE provided to the Student three times during the 2021-2022 school year, and she believes that the Student’s performance went from “far below” to “approaching” or “meeting a benchmark[,]”^[40] although she did not have any corroborating documentation for this.^[41] The ICT class would have had between 20 and 24 students.^[42] There would be times when general education students with disabilities in the same ICT class would break into mixed groups, and two groups would work on skills (each with one teacher), while the third group worked independently, and then they would rotate. ^[43]

DOE School Psychologist

As its second and final witness, the DOE called the DOE School Psychologist (Psychologist), who testified as follows. She was also on the team that developed the Student’s April 7, 2022, IEP, which incorporated their review of the Neuropsychologist’s report, three Speech-Language assessments (February 2020, April 2021, and March 2022), an Occupational Therapy (OT) screening, a Classroom Observation, and a Social History Interview.^[44] An “ICT . . . class [wa]s appropriate for” the Student for the 2022-2023 school year because she had been in a “general education kindergarten class” and was found to be “a hardworking, well-organized student who was responsible with academic tools, easily transitioned between class activities, actively listened and contributed during lessons, accurately followed multi-step instructions, and shared her thoughts eagerly and with clarity.”^[45] SLT was also deemed appropriate because the Student’s “overall receptive and expressive language functioning was found to be in the Average range” with some moderate delay in “her ability to formulate complete, semantically, grammatically correct sentences[.]” ^[46] Case No. [247086]

The Psychologist found that the Student’s “letter-sound correspondence was strong, and [that] she could sequentially retell a story she heard read aloud” and that her “independent written production was at and above grade level expectations,” although she “required teacher check-ins during independent work[.]”^[47] With respect to reading, the Student “required support identifying sight words embedded in texts and guidance identifying the vowel sound in cvc and ccvc words.”^[48] It is the Psychologist’s clinical opinion that ICT “was reasonably calculated to enable [the Student] to make educational progress during the 2022-2023 school year” because it provides “individualized, evidence-based multisensory instruction by a special education and a general education teacher, as well as daily opportunities for small group academic work[.]” ^[49] The Psychologist also asserted that “[m]uch of [the Student’s] performance was within grade level expectations[,]” notwithstanding that she required instruction in identifying sounds in highfrequency grade level words, improved automatic recognition of sight words, and assistance with blending phenomes, decoding, and knowledge of sight words for grade level material, including reading comprehension, summarizing, and “producing well-organized sentences edited for spelling errors.” ^[50]

On cross-examination, and upon further questioning, the Psychologist testified as follows. ICT would have allowed for a maximum of forty percent (40%) – or 12 – special education students.^[51] She did not perform any evaluations of the Student during the 2021-2022 school year, when the IEP was developed, nor did she perform any observations of the Student, or provide services for the Student, or otherwise work with the Student.^[52] The delays in the Student’s phonemic and phonological awareness, as determined by the SLT evaluator, were consistent with the Neuropsychologist’s findings.^[53] These challenges, along with the Student’s difficulties with rhyming and with blending syllables, are all skills that underlie foundational Case No. [247086] reading.^[54] These were all deficits the Student was dealing with when the IEP was developed. ^[55] There were also deficits with automaticity and rote recall, which the Psychologist agreed can interfere with foundational academic skills. ^[56]

The Psychologist found that the Neuropsychological report was thorough, used valid testing tools, contained accurate scores, and that the Student’s determined skill levels were consistent with her observed performance in the classroom.^[57] The team did, however, have to discuss the report, because “[t]he [Neuropsychologist’s] description of [the Student’s] skills were inconsistent with what the scores were on the testing.”^[58] She noted some low scores that were “consistent with what was observed in the classroom as areas of weakness[,]” however it was her opinion that the Neuropsychologist’s “description of many of her other skills were . . . found to be very negative and, and not that consistent . . . with . . . the test scores.”^[59] The Psychologist, therefore, did not agree with all of the Neuropsychologist’s diagnoses based upon those scores. ^[60] She recalled that the scores reviewed by the Neuropsychologist “were, for the most part, very strong” and “even when the score is described” as having a score “at the 63rd percentile or 75th percentile,” scores not indicative of a deficit, the “narrative regarding that [score]” described it as “deficits in that score” which “is not a deficit” so, to the Psychologist, “it felt a little bit like the student was over-pathologized.”^[61] She acknowledged that she did not test the student and that “there’s a qualitative piece to working with [a] student and doing extensive testing that [she did]n’t have firsthand experience of in this case, but . . . the description of her being a very, very impaired student was not reflected in the scores achieved in the testing that [the Neuropsychologist] administered.” ^[62]

On cross-examination, and upon further questioning, the Psychologist testified as follows. The ICT class would have allowed for a maximum of forty percent (40%) – or 12 – Case No. [247086] special education students.^[63] The DOE school the Student attended during the 2021-2022 school year did not offer any self-contained special education classes during the 2022-2023 school year.^[64] The IEP team did not discuss the reading or writing skills the Student would be exposed to in the first grade, nor did it discuss which of those skills the Student would have difficulty with given her learning disability.^[65] The team discussed which parts of a reading program would work best for the Student, and that a multi-sensory approach consistent with Orton-Gillingham would be important, but she was not aware what level of training the ICT teachers had in specific reading programs.^[66] She never spoke with the Neuropsychologist.^[67] The team also considered which program would benefit the Student in the least restrictive environment, when it decided against a self-contained (12:1:1) classroom and opted for ICT. ^[68]

The Psychologist is of the opinion that ICT is appropriate despite the Neuropsychologist’s recommendations because the Student “presented with areas of delays or deficits that required very direct instruction . . . in reading and phonological awareness, and [an] ICT class would . . . offer her an opportunity for daily small group instruction in building those skills.”^[69] Moreover, it “would also give her opportunities to interact and partner with students without special ed [sic] needs and be able to defer to them . . . and use them as models.” ^[70]

The Parent’s Case

Private School CSE Liaison

As the first witness, the Parent offered the Private School CSE Liaison (PSCL), who testified as follows. He was a public school special education teacher for 27 years and has been the liaison for CSE activities at the Private School for 14 years.^[71] The Private School specializes in working with “students of average to superior intelligence who have been diagnosed with Case No. [247086]

language-based learning disabilities, including dyslexia.”^[72] All of its teachers have college degrees, most have master’s degrees, and many are certified teachers, including in special education.^[73] The teachers are training in specific reading and writing programs, and they utilize Preventing Academic Failure (PAF), which is an Orton-Gillingham program adapted for small group instruction. ^[74]

The PSCL is familiar with the Student, through his work as the CSE liaison, and having “observed her in homeroom and in an English language arts class . . . and [having] gathered information from her teachers” about “her academic needs, her attention and executive functioning, and her social/emotional and behavioral functioning.”^[75] Before starting the 2022-2023 school year, the Private School “assessed what skills [the Student] needed to develop over the course of the year and [they] designed a program” that included “a modified curriculum and much slower pace due to her recall and automaticity challenges, coupled with her academic deficits” that “require[d] extensive repetition and review” because “[h]er dyslexia and dysgraphia impacted her performance and acquisition of skills across content areas[.]” ^[76]

For the 2022-2023 school year, the Student was placed in a 6:1:1 class.^[77] When the school year began, the Student “presented with variable phonemic awareness skills, poor rapid naming . . . sound/symbol correspondence for most consonants and vowels, limited and laborious decoding skills . . . short vowel confusion . . . poor written letter and numeral formation with reversals, awkward handwriting . . . a weak vocabulary, and weak oral and written expression.” ^[78] In writing, it was determined that the Student “need[ed] a significant amount of support” because “[s]he struggled to spell high frequency cvc words and her handwriting was illegible” and she “wrote all over the page.”^[79] She “needed to learn specific strategies to create complete sentences with proper grammar and tense” and “her writing was brief and lacked detail.”^[80] With respect to Case No. [247086] reading comprehension, the Student “struggled with logical inferences and summarization, which are . . . complex/higher-order comprehension skills.” ^[81]

To address the Student’s deficits in reading and writing, the Student was assigned to three periods of ELA per day.^[82] The Private School offered “systematic, multisensory instruction in a phonics-based program in which reading, spelling, and handwriting [we]re taught as one unified lesson.”^[83] These “reading and writing skills [were] taught in her ELA classes are reinforced throughout the day.”^[84] The consistency was “critical to her success” in addressing “her rote recall and automaticity challenges.”^[85] Over the course of the school year, the Student benefitted from the PAF program. She completed its “pre-reader Step-by-Step Skills Book” as well as “the first three PAF Readers and the first half of Book 4”; in fact, she “started at Level 1 and was projected to finish Level 85” by the end of the 2022-2023 school year.^[86] In addition, since beginning the program her “[o]ral reading stamina is inconsistent but has increased as her accuracy improved”; “her “handwriting has improved” as well, in that the “work is always neat and organized, and direct instruction . . . has resulted in fewer reversals of letters” and she has “made progress in formulating more effective written sentences using learned strategies[.]” ^[87]

Student’s S/L skills also improved as a result of Private School’s provision of SLT. Student was “initially quiet” at the start of the 2022-2023 SY due to “early speech, articulation, and oral motor difficulties.”^[88] With the therapy, “she is now comfortable and chatty with her teachers and her peers” and in “her classes, she is easily understood.” Further, “any residual speech issues do not compromise intelligibility and have not had an effect on skill development in reading and writing.”^[89] Her overall performance in school was assessed “through school-based and standardized measures[,]” and an “analysis of [the Student’s] first, second and third quarter progress reports indicates that she . . . progress[ed] at an appropriate pace . . . toward Case No. [247086] proficiency in the skills that [we]re addressed in her instructional program[.]”^[90] In most ELA categories of instruction, over the course of the 2022-2023 school year, the Student’s performance scores went from “Additional Practice Needed” to “Demonstrates Progress” to “Approaching Proficiency.”^[91] It is the PSCL’s “professional opinion that [the Private School wa]s an appropriate program for [the Student] for the 2022-23 school year and that she . . . receiv[ed] meaningful educational benefit from the specialized instruction and individual supports that [were] provided” by the Private School and its program. ^[92]

During cross-examination and upon further questioning, the PSCL testified as follows. He observed the Student in her homeroom class “a number of times” and in her ELA class “[s]eveal times[.]”^[93] As the CSE Liaison, he did not evaluate or teach the Student, but he has over 40 years of experience in special education instruction.^[94] The Private School does not use letter grades but it “do[es] organize . . . students based on their grade level, and [it] do[es] use progress indicators that are included in the progress report[s.]”^[95] The Student having demonstrated an ability to be nearing PAF Level 85 from PAF Level 1 during the 2022-2023 school year shows that her abilities progressed. ^[96]

Parent

The Parent testified as follows. The Student is a “strong-willed” and “very independent” child who has “dyslexia and some other language-based learning disabilities.”^[97] When the Student was younger, her kindergarten teacher reached out to the Parent to inform her that the Student had been flagged during an assessment for reading struggles; thereafter, the Parent decided to take the Student to the Neuropsychologist in 2021.^[98] She recalls the Neuropsychologist reporting that the Student was dyslexic with automaticity issues, and had Case No. [247086] dysgraphia and learning disabilities.^[99] After receiving the Neuropsychologist’s report, she reached out to the CSE to set up an IEP meeting. ^[100]

The Parent found the Neuropsychologist’s report “seemed to match exactly” what she was seeing at home with the Student.^[101] Moreover, the Parent attended the IEP meeting and no one raised any doubts about the Neuropsychologist’s diagnoses.^[102] The Parent had another daughter in an ICT class so she knew it entailed up to 20 children in a general education setting with two teachers, only one of whom would be special education certified and “it’s not a . . . reading intervention throughout the day type of curriculum”; she let the IEP team know that ICT would not be appropriate for the Student.^[103] She and her husband asked whether there was something the DOE could offer that was “beefed up” over ICT and they were told “no basically . . . they could not.”^[104] She recalled that the IEP team “didn’t disagree” with the Neuropsychologist’s recommendations, they “just stated that they don’t have [something] other than the ICT classroom.” ^[105]

The Parent was confused by the result of the IEP meeting, so during the Summer of 2022, before the 2022-2023 school year began, she brought the Student back to the Neuropsychologist for a re-evaluation.^[106] The Neuropsychologist “confirmed [her] concerns” that with respect to the Student’s “writing [and] reading . . . none of that had progressed.”^[107] The Neuropsychologist was of the opinion “that the ICT class . . . was . . . not appropriate” and that the Student “needed a[] small . . . targeted school[.]”^[108] The Parent sent a Ten Day Notice (TDN) to the DOE in August of 2022 explaining her concerns and no one from the DOE ever responded. ^[109]

The Parent signed a contract with the Private School in April of 2022, after the IEP meeting, because the Private School’s program had been effective for another of her children, Case No. [247086] and because “it’s a very . . . sought after school” and she believed “it was necessary to hold [a] spot for” the Student, after which “we could [re]evaluate” and see whether “there was anything else that the . . . [DOE] would be able to come up with during that time.”^[110] If the program offered in the IEP had been appropriate, the Parent would have accepted the public placement. ^[111]

The Parent found that the Student had “done fantastic” at the Private School, because at first “she couldn’t read and when she got to” the Private School, they gave her word lists, and then she moved to “simple sentence structure” and “the amount of progress [she has] seen has been really, really, really great[.]”^[112] As for “her handwriting” challenges, the Private School has “spent a lot of time working on the dysgraphia,” including “us[ing] certain tools within the classroom” that have helped the Student’s writing. ^[113]

During cross-examination and upon further questioning, the Parent testified as follows. She did not pick a school just because it offered a smaller classroom, although “that is one of the characteristics” of the Private School, along with “teachers who . . . train in . . . OrtonGillingham or some type of . . . reading program” with “scaffolding, not just for the reading piece” but “all day with scaffolding because . . . of her detriments[.]”^[114] These were some of the aspects of a program she was looking for, and she was open to seeing what the DOE would offer.^[115] She recognized that the obligation to pay the Private School was unconditional after July 1, 2022, even though she did not file a TDN until August of 2022; however, she believed that had she accepted a public option, she would not necessarily have been obligated to pay the tuition because she had “seen [the Private School] work with other parents in these situations[.]”^[116] The parents paid $68,305.00 for tuition for the Student to attend the Private School for the 2022-2023 school year. ^[117] Case No. [247086]

Neuropsychologist

The Parent’s final witness was the Neuropsychologist, who testified as follows. The neuropsychological evaluation of the Student was performed to “acquire[] data of discrete neuropsychological and neurocognitive functions” in order to assess “memory, attention, language, spatial skills,” and other factors that gauge “the foundational underpinnings of learning.”^[118] The focus of such an evaluation is on “the process by which a student is responsive to test items” and the Neuropsychologist considers “qualitative information regarding how a student is developing answers in addition to the quantitative data regarding the student’s performance relative to other children (known as process assessment)” which “allows [for] observation of subtle dysfunctions in how children approach and solve problems.”^[119] It is possible that “two students may perform similarly on the neuropsychological assessment” but that “what they need could differ dramatically based on [an] analysis of their answers” because how a “student answer[s]” can show “patterns that will impact the acquisition of skills” and evidence “the cognitive underpinnings for any dysfunction and weakness.” ^[120]

During the 2021 evaluation, the Neuropsychologist performed a battery of tests, and discovered that the Student “could not individually separate sounds . . . could not spell her name . . . [and] could not rhyme[.]”^[121] She showed “hallmarks of a dyslexic profile” including “a strong vocabulary and cognitive depth” but “she was unable to do basic tasks like rhyming” which “is a huge alarm bell . . . for a student with her vocabulary and cognition[,]” as “[r]hyming emerges reliably by 3-4 years of age and is the precursor to phonological awareness.”^[122] In fact, her “phonological processing was at the 16th percentile” and such “processing is the bedrock of reading and writing development and refers to the brain’s ability to parse out sounds and words” and “[h]er scores [were] significant and . . . not grade- or age-appropriate.” ^[123]

The Neuropsychologist found that the Student’s “brain power masks the true impact of her deficits[,]” and it is why the Student’s needs should not simply be “based on her scores on Case No. [247086] the testing[.]”^[124] The Neuropsychologist used an example to explain how the Student was able to achieve her scores despite her rote recall and automaticity challenges: “when presented with the word ‘girl,’ [she] only hear[s] the ‘g’ and ‘r’ sounds” but “[s]he is also a very bright young girl who is heavily aided with text” and is “able to rely on her intellectual and strong background knowledge to guess words that she is not really reading[.]”^[125] The Neuropsychologist saw how this was the Student’s “approach [to] each task and . . . how effortful reading and writing tasks were” for her, and “it was clear that her average presentation was deceiving.”^[126] The Neuropsychologist found what the DOE offered as insufficient in this regard, as the Student “must be taught how to read rather than to guess.”^[127] The results demonstrated that the Student “did not have foundational, critical skills” which the Neuropsychologist “predicted to get much more severe as the [Student’s] academic demands increased” in future school years. ^[128]

The Student also had “phonological awareness deficits” and “her reading comprehension was extremely delayed.”^[129] Despite her “strong vocabulary and intellect,” even when “asked to point to pictures that correspond to a word . . . with significant support, [she] was unable to recognize words and point to the images.”^[130] Moreover, “[w]hile [the Student’s] school did not note any concerns with writing,” the Neuropsychologist found that “her spelling was poor and her writing was often illegible” because she “would just scribble . . . and wrote with many letter reversals” and “struggle[d] to write her own name” even though she was at a point where she “should have been able to reliably recognize repeated letter patterns like her name.”^[131] These findings also informed the Neuropsychologist’s opinion regarding how the Student could perform in mathematics, because her challenges “would be expected to impact her acquisition of math skills” including “her ability to recall math facts and to automatically retrieve Case No. [247086] knowledge[,]” as well as her “experiencing reversals and difficulty forming numbers” and the ability to understand and answer word problems in the future. ^[132]

The Neuropsychologist noted that all the tests were performed with supports, including “explanations . . . examples . . . paraphrasing directives, and querying . . . to help her provide more targeted responses.”^[133] This was done “to assist in [the Neuropsychologist’s] process analysis . . . to understand why” the Student would get questions wrong; it was clear, however, that had the supports not been in place, “her scores would have been lower.”^[134] This was yet another reason the Student’s “test scores themselves need to be interpreted with caution.” ^[135]

On the above findings, the Neuropsychologist recommended “a full-time special education setting.”^[136] The Student’s “deficits were pervasive” and “[s]he needed full immersion for reading and writing skills” in a general education setting should could not get a “teacher who [would] repeatedly differentiate [the] general education curriculum . . . being taught in real time.”^[137] Moreover, the program would have to be tailored specifically to the Student and “it was clear [that it would] not [be] possible within a larger classroom.”^[138] Providing the Student the Neuropsychologist’s recommended program for the 2022-2023 school year “would allow her to remediate her challenges [and] allow her a chance to move to a less restrictive environment in the future.” ^[139]

The DOE did not implement the Neuropsychologist’s recommendations during the Student’s 2021-2022 school year, and the Student “continue[d] to demonstrate pervasive reading and writing challenges.”^[140] The Student’s “family contacted [the Neuropsychologist] to do an update to [her] testing based on their continued concerns about [the Student’s] school functioning” because they “did not see any progress at home or in her school work[.]”^[141] The Case No. [247086]

Neuropsychologist re-evaluated the Student in August 2022, and found that her “phonological awareness score actually declined from the prior test” and, therefore, “[t]he gap [wa]s widening – it wasn’t just a lack of progress.”^[142] The Student “failed to recognize simple, high frequency words, including simple cvc words like ‘cow.’” She should have been able to this by the re-evaluation, and the Neuropsychologist “expect[ed] that” the Student “would be able to rhyme[ and] write her name” as well, “[y]et [the Student] lacked these skills.”^[143] The Student “struggled to recall names of shapes and sequence the order of descriptors” and when she was asked “to quickly name a sequence of numbers and letters, her performance was effortful and dysfluent.”^[144] All of this “confirmed that her rote recall and automaticity challenges remained significant” and “signal[ed] that [she] would continue to have serious challenges learning to read and write without significant intervention.” ^[145]

There was some “improvement in reading comprehension, but her performance was still concerning” because she was “mak[ing] word guesses based on the first letter of a word[,]” which “underscored her continued struggles with decoding.”^[146] The math assessment revealed that, “[w]hen presented with mathematical operations in pencil-and-paper (as opposed to . . . a visual que), [her] performance declined[,]” she “became increasingly fatigued and distracted[,]” and “she was quick to give up.”^[147] As for the dysgraphia, she was still “unable to spell her name” and “she scribbled on the page.” The Neuropsychologist noted the Student “still struggled with letter formation and sequencing” as well, and these “difficulties and the resulting “marked discomfort and anxiety around writing were concerning” because “[s]he was not meeting grade- or age-level expectation” in the nine months since the Neuropsychologist's original evaluation.^[148] The Neuropsychologist, therefore, “continued to strongly believe . . . that [the Student] requires a special education placement” and that “a general education setting – Case No. [247086] even with the presence of a special education teacher in the classroom – is not sufficient for” the Student. ^[149]

The Neuropsychologist is “familiar with [the Private School] . . . and ha[s] learned about their program from their staff and [having] review[ed] information on their curriculum and methodologies. The Neuropsychologist finds it “the type of setting that [she] was recommending for [the Student] because it provides the special education curriculum with an immersion approach and supports throughout the day that are specific to [the Student’s] needs.” ^[150]

During cross-examination and upon further review, the Neuropsychologist testified as follows. Her initial administration of testing for the Student in 2021 took approximately six hours over multiple days, and the second round of testing in August of 2022 took approximately three hours in one day.^[151] She did not speak with the Student’s teachers or conduct a classroom observation.^[152] She recommends the Orton-Gillingham methodology because it is “the golden standard” for teaching phonetics and decoding with a “very granular instruction,” which is what the Student requires for her rote recall and automaticity issues.^[153] The DOE did not offer this type of programming, so she did not recommend any public option, because “the resources [that] are available . . . in [the] public school setting [were] not really made for students like [the Student,] who need” more than “general education . . . with an ICT presentation or [that] SETSS” can provide, because they are “not really specialized to her learning profile.” ^[154]

The Neuropsychologist has probably tested 1,500 students in her career, including many children from the public school the Student attended during the 2021-2022 school year, and there were students [that] she found could remain in a DOE placement.^[155] She recommended a small class size for the Student but not a particular number because that is harder to determine. ^[156] Later she testified that class size was more important than ratio, and she would want a class of no Case No. [247086] more than 12 to 15 students for the Student, regardless of the number of teachers.^[157] She could not agree with the DOE’s recommendations because, “in this case[,]” developing “educational planning based on [test] scores” alone “would be . . . inappropriate.” ^[158]

She did not perform a classroom observation or speak with the Student’s teacher because the types of assessments she performs are data-driven and she was using diagnostic testing to study the Student’s learning profile, not her behavioral aspects.^[159] She did not recommend ICT for the Student because it would be 60 percent general education, “the curriculum is not deconstructed or differentiated throughout the day [and] throughout all subjects, and the kids are expected to really stay on pace with the gen[eral] ed[ucation] curriculum[,]” which is a program that is not “framed out to meet [the Student’s] needs.”^[160] Moreover, the “Teacher’s College” reading program taught in ICT is “contextual learning or whole word [learning], where they basically have to guess the word or learn contextual cues[,]” which does not work for the Student and “would put her at a disadvantage . . . because [it is] not what she’s capable of doing.” ^[161] This would be the case even if the ICT teachers supplemented the Teacher’s College program with a phonics or decoding program, because ICT is not immersive, in that it would not be provided “consistently and with fidelity throughout the day[.]”^[162] The program the Neuropsychologist recommended was necessary because anything less restrictive “would not have served [the Student’s] needs in a way that she would make the kind of gains” she can achieve. ^[163]

Closing Statements

In closing, the DOE Attorney contended the following.^[164] The team that developed the Student’s IEP was duly constituted, reviewed sufficient evaluative material, and utilized that material to create an appropriate program. The IEP included the Student’s then-present levels of Case No. [247086] performance, the neuropsychological test scores, speech-language evaluations, and teacher observations and assessments. The IEP also included goals, and neither federal nor state law require an IEP to include specific instructional methodologies to develop or achieve those goals. The law only requires the IEP to enable the student to make progress in the educational curriculum.

The professional disagreement as to placement between the DOE School Psychologist and the Neuropsychologist should not be the basis for a unilateral placement. The DOE was obligated to place the Student in the least restrictive environment; the IEP found this to be ICT with SLT, and that the DOE’s specialized 12:1:1 would have been too restrictive. A FAPE was thus offered to the Student for the 2022-2023 school year.

Even if the IEP were determined not appropriate, the Parent must still demonstrate that the placement she unilaterally chose was appropriate. Here, the Private School was not sufficiently individualized and therefore not designed to meet the unique needs of the Student because it is a small, specialized school and its supports are offered to all its students, with very few modifications made for the Student. As for the equities, the Parent signed a contract with the Private School in April of 2022 that obligated her to pay after July 1, 2022, even though she did not submit a TDN to the DOE until the following month, which is evidence that the Parent did not intend on accepting a public option, and there is no evidence that the Parent provided the updated Neuropsychological evaluation to the DOE.

In closing, the Parent Attorney argued as follows.^[165] The Department failed to meet its burden to demonstrate that the IEP and the program it recommended were appropriate for the 2022-2023 school year. Its witnesses did not show how the program was tailored to the Student’s needs and therefore it did not provide a cogent and responsive explanation for its recommendations. The Student was diagnosed with neurodevelopmentally-based reading and writing disorders, as well as rote memory and automaticity deficits that left her without critical, basic foundational skills. This was also shown in the SLT evaluation, where she struggled to identify the initial and final sounds of cvc words, confirming that she had language-based challenges that impacted her acquisition of academic skills. Case No. [247086]

On these and other findings, the Neuropsychologist’s report recommended a small, full-time special education program. The CSE adopted this report as its primary source informing the IEP, yet the team rejected the Neuropsychologist’s recommendations in the IEP, even as it adopted the Neuropsychologist’s findings. In fact, the DOE Teacher testified that assessments confirmed the Student made progress during the 2021-2022 school year, yet the DOE did not offer those assessments or any further explanation or context, from the IEP or otherwise. The DOE School Psychologist’s testimony focused on the Student’s scores, despite the many admonitions in the Neuropsychologist’s report that the scores alone could not be relied upon to understand the Student’s challenges. Moreover, the DOE Teacher did not observe or evaluate the Student before the IEP team met, and she did not work will the Student until after the IEP was developed near the end of the school year, which reduces the reliability of her testimony regarding the assessments. The DOE produced no documents evidencing a history of the Student having academically progressed.

Furthermore, the DOE’s program would not have enabled the Student to benefit from her education had it been implemented. The curriculum in ICT is the same as taught in a general education class and adding a multisensory approach would not have been different from what students receive in general education. The DOE Teacher acknowledged that, in ICT, small group and targeted instruction might occur only a few times per day, and with rotating groups that work with the special education teacher once every three rotations. This is clearly not the continual small group instruction and constant, immersive specialized instruction that the Neuropsychologist’s report recommended in order for the Student to be able to learn. The DOE School Psychologist did not explain her testimony that ICT was sufficient for the Student when she also acknowledged that rote recall and automaticity deficits impact foundational academic skills. To the extent that the DOE School Psychologist testified that she was concerned the Neuropsychologist had “over-pathologized” the Student, she did not offer any alternative assessment, or explain why she (or anyone at the DOE) did not evaluate the Student themselves, or why they relied on the Neuropsychologist’s report as the primary evaluative vehicle for the IEP. In fact, this was conjecture, because the DOE School Psychologist never met the Student, let alone observed or evaluated her. The DOE Psychologist also did not acknowledge that the Case No. [247086] scores were not accurate because they were boosted by a lot of support the Neuropsychologist provided the Student in order to discern the limits of her deficits.

With respect to Prong 2 of the Burlington/Carter test, the Parent needed only to demonstrate that the placement they chose offered educational instruction that was specifically designed to meet the Student’s needs and permit the Student to benefit from instruction. The Private School CSE Liaison explained in detail how the Student and her history were assessed and how the program was designed to offer its curriculum in a way that addressed her strengths and weaknesses. The Neuropsychologist also confirmed that the Private School offered the type of program she had recommended in her evaluative reports of the Student, specifically an immersive, full-time special education program.

The Private School provided the Student three periods of ELA per day, with instruction designed to meet her language deficits, which included: instruction in the foundational aspects of reading, such as decoding, phonological awareness, and fluency; reading comprehension, both word level and connected text, sounds, and sight words; and skills-based instruction, including building accuracy and stamina, and providing the curriculum at a slower pace and offering her extra time to process what she learned. With these supports, the Student was able to go from being essentially a non-reader to a reader, and on the PAF program scale, from Level 1 to Level 85.

As for equitable considerations, the DOE presented no evidence of the Student’s parents having been uncooperative or having obstructed the Department’s efforts to comply with the IDEA. The parents shared the Neuropsychologist’s report before the IEP was developed and they consented to further assessments the DOE might have performed. They attended the IEP meeting, shared their concerns, and explained why they disagreed with the CSE’s recommended program, both at the IEP meeting and in their timely-submitted TDN approximately one month before the 2022-2023 school year began. Notwithstanding that the DOE had much more than ten days to re-evaluate what it had offered in the IEP, the Department never responded to the TDN.

To the extent that the Parent signed a contract with the Private School that obligated the Parent to pay the tuition a month before she filed the TDN, she was willing to take the risk to place the Student in the appropriate program. Moreover, she testified that some parents were able to negotiate a release or otherwise “work it out” with the Private School. Finally, the DOE Case No. [247086] could have cured the defects in its IEP for weeks after the TDN was filed and it did nothing. Had the Department offered a FAPE, the contract would become irrelevant because the Parent would not have been entitled to tuition reimbursement. The date the contract was signed, therefore, does not impact the DOE’s ability to offer a FAPE.

Credibility

Upon considering the evidence, including all admitted exhibits and the testimonies of the witnesses, I determine the following. In admitting the documents, I found them all relevant and representative of the facts for which they were offered, and they are thus all credible. As for the witnesses, I found no reason to doubt the earnestness of the opinions offered by the expert witnesses; however, I did not find them equally persuasive, which will be addressed in the analysis. As for the witnesses’ testimonies on the facts, I found no reason to doubt their veracity and those statements are credited. The relative weight I afford to all credited exhibits and testimonies will likewise be reflected in the analysis.

Legal Framework

The IDEA and the New York Education Law require school districts to offer a FAPE to each child with a disability residing in their district who requires special education programs or services.^[166] A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written IEP.^[167] When the education district complies with the procedural requirements set forth in the IDEA, and when the IEP developed through those procedures is reasonably calculated to enable the student to receive educational benefits, a FAPE has been established. ^[168]

The U.S. Supreme Court has determined, through a three-prong test, that a board of education may be required to pay for educational services obtained for a child by the child's parent who unilaterally places the child in a private placement, if (1) there is no FAPE, in that the services offered by the board of education were inadequate or inappropriate, (2) the services selected by the parent were appropriate, and (3) equitable considerations support the parent's Case No. [247086]

claim.^[169] These prongs have become known as the Burlington/Carter standard in a tuition reimbursement case.^[170] In line with the standard, school districts have the burden of proof, including the burden of persuasion and burden of production as to Prong 1, while the parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of proof as to the appropriateness of such placement in Prong 2.^[171] The standard required is a preponderance of the evidence. ^[172]

As part of its Prong 1 case, the DOE is not required to show that it attempted to “maximize” the potential of students with disabilities.^[173] Still, the IEP it developed must include a statement of the student's present levels of academic achievement and functional performance, establish annual goals designed to meet the student's needs resulting from the student's disability and enable the student to make progress in the general education curriculum, and it must provide appropriate special education and services.^[174] Appropriateness means that the IEP accurately reflects the results of evaluations to identify the Student's needs,^[175] and then provides for the utilization of sufficient special education services,^[176] and then is properly implemented.^[177] In order to demonstrate a FAPE, the Department must offer “an IEP that is ‘likely to produce progress, not regression,’ and ... affords the student with an opportunity greater than mere ‘trivial Case No. [247086]

advancement.’”^[178] The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit.” ^[179]

Upon review of the Prong 1 factors, if the Department proves that the recommended program offers a free and appropriate education, the analysis is over, and the Student is not entitled to what is requested in the DPC. If, however, it is determined that the Department did not establish a FAPE, the burden shifts to the Parent to prove Prong 2. To accomplish this, the Parent must establish that the program they have selected is appropriate to meet their child’s needs.^[180] While the unilateral placement must provide “educational instruction specifically designed to meet the unique needs of the student,”^[181] it “need not meet the IDEA definition of a free and appropriate public education” or even “state education standards or requirements.” ^[182] Parents are not barred, for example, from an award of tuition reimbursement if the selected program does not employ certified special education teachers or develop its own IEP for the student.^[183] In fact, no one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. 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.” ^[184]

With respect to Prong 3, when deciding whether equities support the claim, including whether the remedy should be barred altogether or modified in some way, IHOs must consider a multitude of relevant facts. These can include whether the cost of the private education was Case No. [247086] unreasonable,^[185] whether the parents failed to make their child available for evaluation by the district,^[186] or whether actions taken by the parents were unreasonable.^[187] The Second Circuit Court of Appeals has also looked at whether the parents should have availed themselves of needbased scholarships or other financial aid from the private school, whether there was any fraud or collusion by the parent or the private school in generating the tuition, or whether the arrangement with the school was fraudulent or collusive.^[188] “Important to the equitable consideration is whether the parents obstructed or were uncooperative in the school district’s efforts to meet its obligations under the IDEA.”^[189] Equities have favored parents when they cooperate in good faith at all times with the DOE, including participating in the CSE meeting, visiting proposed placements, and notifying the district of unilateral placement. ^[190]

Specifically, as to notifying the DOE, reimbursement may be reduced or denied if the parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to their removal of the student from public school or by written notice ten business days before such removal. The notice must state that the parent is rejecting the proposed placement and must include their concerns, as well as their intent to enroll the student in a private school at public expense.^[191] It is an important step because the notice “gives school districts an opportunity to discuss with parents their objections to the IEP and to offer changes to the IEP designed to address those objections – all before the parents enroll their child in a private school and file a due process complaint.”^[192] In a case where "parents unreasonably reject the school district's proposed changes to the IEP, or are otherwise uncooperative, courts and hearing officers are fully empowered to deny them reimbursement,"^[193] and the parents of students enrolled in private school are not exempted from ten-day notice requirements. ^[194] Case No. [247086]

It is against this backdrop that I analyze the circumstances of the Student, the IEP developed for the Student and, if necessary, the Parent’s unilateral placement and equitable factors. If the Parent prevails, I will address whether tuition reimbursement is warranted, as requested in the DPC. In considering an award, I am mindful that I have at my disposal “various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies,”^[195] with the only limitation being that the remedy “be appropriate in light of the purpose of the Act,”^[196] and that damage awards are not available under the IDEA. ^[197]

Analysis

Free Appropriate Public Education

On April 7, 2022, the CSE convened and developed an IEP for the Student that cited, as its primary evaluative source, the findings of the Neuropsychologist’s report.^[198] On its face, the IEP appears to contain most of the information associated with properly described findings and recommendations, including then-present levels of performance and academic achievement, functional performance and needs, and learning characteristics; social development; and measurable annual goals (here, inter alia, independently identifying vowel sounds in cvc and ccvc words, blending phonemes and/or syllables, identifying initial/medial/final spoken word sounds, correctly spelling words and self-correcting spelling errors, identifying and/or rhyming spoken words, decoding high-frequency sight words to read a grade-level passage for comprehension, summarizing text that was read, writing complete and cohesive simple and compound sentences, and automatically recalling number combinations and computing math problems).^[199] The “Management Needs” section was not comprehensive, stating only that the Student “requires daily academic support, which will be provided through the end of th[e 2021-2022] school year through . . . SETSS . . . and, beginning in September 2022, provided in an Integrated Co-Teaching (ICT) class” along with “Speech/Language Therapy.” ^[200] Case No. [247086]

The DOE School Psychologist was produced to defend the IEP. She never evaluated, observed, or provided services to the Student,^[201] and she agreed that the Neuropsychologist’s report was thorough, used valid testing tools, contained accurate scores, and that the skills it covered were consistent with what had been reported as being observed in the Student’s classroom 202 Still, the CSE did not agree with the report’s recommendations, even while it was utilized as the primary source for the less restrictive program ultimately recommended in the IEP. She explained the team deemed “ICT . . . appropriate for” the Student because she performed average to above average in certain tested areas while attending a “general education kindergarten class” and she was found to be “a hardworking, well-organized student who was responsible with academic tools, easily transitioned between class activities, actively listened and contributed during lessons, accurately followed multi-step instructions, and shared her thoughts eagerly and with clarity.” ^[203]

The DOE School Psychologist recognized that the Student “required support identifying sight words embedded in texts and guidance identifying the vowel sound in cvc and ccvc words.”^[204] She also needed help with identifying sounds in high-frequency grade level words, improved automatic recognition of sight words, and assistance with blending phenomes, decoding, and knowledge of sight words for grade level material, including reading comprehension, summarizing, and “producing well-organized sentences edited for spelling errors.”^[205] In her professional opinion, however, an ICT classroom “was reasonably calculated to enable [the Student] to make educational progress during the 2022-2023 school year” because it would have provided “individualized, evidence-based multisensory instruction by a special education and a general education teacher. ^[206]

The DOE Teacher, who was also on the subject IEP team, agreed that ICT for the 2022-2023 school year was appropriate because it allows “all students [to] have access to the general education curriculum” with “opportunities for specialized instruction when needed” including

202

See id. at pp. 81 to 82. Case No. [247086]

“more opportunities for 1:1 interaction[.]”^[207] There is a special education teacher in the room and a general education teacher, and the team “thought [that] with her transition into first grade and some of her needs with her phonemic and phonological awareness, a class with th[at] level of supportive . . . teachers would serve her well.”^[208] The DOE Teacher said, however, that there is no fixed amount of time that the Student would work with the special education teacher as compared to the general education teacher. ^[209]

In New York, it is the Department’s burden to show that the recommended program in an IEP offered a FAPE. A reviewing tribunal “may fairly expect [the DOE] 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 [their] circumstances.”^[210] The Department’s witnesses testified that ICT was sufficient for the Student’s needs on the assertions that she demonstrated average performance and ICT provided opportunities for individualized, multisensory instruction. The DOE School Psychologist characterized it this way: “[t]he team believed that [she] could access the curriculum in an ICT and would benefit from being in a setting with typically developing peers.”^[211] None of this, however, offers cogency, i.e., the how or why the limited opportunities found in an ICT class would have enabled progress. According to the DOE witnesses, ICT provides differentiated general education curriculum from a special education teacher for an indeterminant portion of the school day, e.g., only up to one-third the time with the special education teacher for certain lessons when groups of students are rotated. ^[212] It is not clear how such limited access to special education would have addressed the Student’s challenges with identifying sounds and words, decoding, automaticity, word recognition, writing, and especially her serious issues with rote recall. ^[213] Case No. [247086]

The Parent, on the other hand, provided persuasive evidence that demonstrates how difficult it would have been for the Student to learn and retain skills without more regularlyapplied special education teaching methods. Beginning with how the Student tested during the 2021-2022 school year, and notwithstanding the DOE’s claim that her performance was average, her scores evidenced many areas of deficit, including word reading in the 55th percentile, phonological awareness in the 47th percentile, rapid automatic naming in the 42nd percentile, phonological processing in the 16th percentile, reading comprehension in the 5th percentile, ^[214] and spelling in the 32nd percentile. ^[215]

The Neuropsychologist explained how and why the Student’s profile could suggest she was more capable than her evaluation scores had suggested. First, her serious issues with rote recall (“the ability to recall information and . . . to remember facts”) and automaticity (“the ability to perform learned tasks quickly, efficiently, and effortlessly”), and her inability to rhyme all placed the Student “at an extreme disadvantage in learning”^[216] because they point to her substantial difficulty with learning and retaining information that must be available when more advanced curriculum is introduced. The Neuropsychologist explained: “she may look like she learned, knows a skill in one instance, and the, the next day, she doesn’t know the skill. And that, that’s not specific just to reading . . . It’s really specific to all of learning.”^[217] The Student’s deficits also had a serious effect on how she reads and, importantly, the Neuropsychologist discerned that her intelligence masked her poor reading skills and allowed her to achieve reading scores that were not reliable. For example, “when presented with the word ‘girl,’ [she] only hear[d] the ‘g’ and ‘r’ sounds” but “[s]he is also a very bright young girl who is heavily aided with text” and [wa]s “able to rely on her intellect and strong background knowledge to guess words that she is not really reading[.]”^[218] This is clearly insufficient, as the Student “must be taught how to read rather than to guess.” ^[219] Case No. [247086]

I find the Neuropsychologist’s opinion more accurate, and therefore more persuasive and credible, than the opinion of the DOE School Psychologist. The Student cannot learn curriculum through special education provided only intermittently if she cannot retain newly-taught information without the more constant repetition, differentiation and other supports offered in a special education program, along with related speech services. The Department, therefore, did not refute the Neuropsychologist’s evidence that the Student’s deficits were much more serious than suggested by the raw scores, or the Neuropsychologist’s opinion that the Student’s needs could only be addressed in a more immersive special education setting than provided in an ICT classroom. To the extent the DOE was considering the LRE in its determination, that is indeed a necessary goal, but it cannot supplant the primary obligation to design a program that is “reasonably calculated to provide some ‘meaningful’ benefit” to the Student. ^[220]

Had the IEP been implemented as recommended, I find, on the record before me and by a preponderance of the credible evidence, that it would not have been “likely to produce progress”; that it would more likely than not have produced “regression[;] and” that it would have only “afford[ed] the student with an opportunity [for] ‘trivial advancement.’”^[221] I conclude from this that the Department failed to establish that the Student was provided a FAPE for the 2022-2023 school year. Prong 1, therefore, is found in the Parent’s favor. ^[222]

Appropriateness of Unilateral Placement

Having determined that the DOE did not offer the Student a free and appropriate education, I must next turn to the Parent, who “bear[s] the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate.”^[223] A “private placement is only appropriate if it provides ‘educational instruction specifically designed to meet the unique needs of a [disabled] child.’” ^[224] Case No. [247086]

The Neuropsychologist “strongly recommended that [the Student] receive an IEP with specialized services and a full-time special education program[,]” specifically, and inter alia, a “setting where she will receive targeted, research-based reading interventions implemented with fidelity, throughout the day, and with reinforcement . . . in an environment that provides a low teacher-to-student ratio and a specialized curriculum[,]” with “[t]eachers . . . trained specifically to remediate [the Student’s] learning deficits within a classroom of same-age peers who maintain similar learning difficulties.”^[225] The Private School specializes in working with “students of average to superior intelligence who have been diagnosed with language-based learning disabilities, including dyslexia.”^[226] It utilizes recognized reading and writing programs, including PAF, which is an Orton-Gillingham methodology adapted for small group instruction. ^[227]

The Private School assessed the Student and “designed a program” that included “a modified curriculum and much slower pace due to her recall and automaticity challenges, coupled with her academic deficits[,]” and she “require[d] extensive repetition and review” because “[h]er dyslexia and dysgraphia impacted her performance and acquisition of skills across content areas[.]”^[228] She was placed in a 6:1:1 class,^[229] where she was assigned to three periods of ELA per day^[230] that offered “systematic, multisensory instruction in a phonics-based program in which reading, spelling, and handwriting [we]re taught as one unified lesson”^[231] and the skills she learned were ”reinforced throughout the day.”^[232] This approach was consistent with what the Neuropsychologist had recommended, and it was deemed by the Private School to be “critical to [the Student’s] success” in addressing “her rote recall and automaticity challenges.”^[233] In developing a program tailored to the Student’s most serious challenges, I find that the Private School “provide[d] educational instruction specially designed to meet [her] Case No. [247086] unique needs[,]” along with “services [that we]re necessary to permit the [Student] to benefit from instruction.” ^[234]

The Private School’s approach also proved successful. For example, when the 2022-2023 school year began, the Student “need[ed] a significant amount of support” with reading and “[s]he struggled to spell high frequency cvc words and her handwriting was illegible” and she “wrote all over the page.”^[235] As for reading comprehension, she “struggled with logical inferences and summarization[.]”^[236] Through the PAF program, she was able to complete its “pre-reader Step-by-Step Skills Book” as well as “the first three PAF Readers and the first half of Book 4”; she “started at Level 1 and [wa]s projected to finish Level 85[,]”^[237] which is roughly equivalent to grade level reading from kindergarten to first grade, representing a steady progression of academic skill development.^[238] In addition, her “[o]ral reading stamina [wa]s inconsistent but [nonetheless] increased as her accuracy improved” and her “handwriting [also] improved[,]” in that the “work is always neat and organized, and direct instruction . . . has resulted in fewer reversals of letters” from her dysgraphia; she also “made progress in formulating more effective written sentences using learned strategies[.]” ^[239]

In addition to the academic program, the Student benefited from the speech-language therapy she received at the Private School; she went from being “initially quiet when she started” the 2022-2023 school year, to becoming “comfortable and chatty with her teachers and her peers” and in “her classes, she [wa]s easily understood[.]”^[240] The Student’s overall performance was assessed “through school-based and standardized measures[,]” and an “analysis of [her] first, second and third quarter progress reports indicates that she . . . progress[ed] at an appropriate pace . . . toward proficiency in the skills that [we]re addressed in her instructional program[.]” ^[241] The Neuropsychologist is familiar with the Private School and finds it “the type of setting that [she] was recommending for [the Student] because it provides the special education curriculum Case No. [247086] with an immersion approach and supports throughout the day that are specific to [the Student’s] needs.”^[242] The Parent also found that the Student has “done fantastic” at the Private School, because at first “she couldn’t read and when she got to” the Private School her skills began to improve and now, “the amount of progress [she has] seen has been really, really, really great[.]” ^[243]

“[E]vidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA.”^[244] It is, however, relevant to the inquiry as to whether “the placement provides educational instruction specially designed to meet the unique needs of a [disabled] child, supported by such services as are necessary to permit the child to benefit from instruction.”^[245] Given the degree to which the Student struggled academically, her need for a specialized academic setting with significant supports, and the way the Private School provided that setting and those supports through an intensive, immersive academic program designed to address the Student’s unique, languagebased needs that enabled her to benefit from instruction, the Private School clearly meets this standard. I therefore conclude, on this record, that the placement chosen by the Parent was appropriate to meet the Student’s needs,^[246] and that the Parent has proven Prong 2 of the Burlington/Carter analysis.

Equitable Considerations

Finally, I must weigh pertinent equitable factors. Generally, equities can favor parents when they cooperate in good faith and properly notify the district of the unilateral placement. ^[247] Here, the Parent had the Student evaluated,^[248] the Parent reached out to the CSE to set up an IEP meeting,^[249] the Parent shared the Neuropsychologist’s report with the IEP team, and both parents Case No. [247086] attended the April 7, 2022, IEP meeting and offered their positions as to the Student needs. ^[250] ICT was discussed, and because the Parent had experience with another child in ICT, she asked if there was any other, more “beefed up” program – such as a self-contained 12:1:1 class – that could be offered to address the Student’s disabilities, and she was told “they could not[.]” ^[251]

After the IEP was developed and a program the Parent could not agree with was offered to the Student, the Parent engaged with the Private School, and submitted a timely TDN, on August 9, 2022.^[252] The TDN contains all necessary information, including a statement that the parents would be unilaterally placing the Student in a private placement if a more appropriate public option were not made available, and that the parents would seek funding for that placement. ^[253]

The DOE Attorney argued that the Parent having signed a contract with the Private School before the TDN was filed is evidence that the Parent did not intend to accept a public option. The TDN, however, specifically mentions that the parents “asked the [IEP] team to consider a smaller, more specialized setting, [and they] were told that [the Student] does not require this level of support[,]” so the parents had reason to believe they were left with no option. Moreover, the parents believed “it was necessary to hold [a] spot for” the Student and they signed the contract holding out hope that they “could [still re-]evaluate” and see whether “there was anything else that the . . . [DOE] would be able to come up with during th[e] time” between the contract signing and the beginning of the 2022-2023 school year.^[254] Finally, and arguably most importantly, courts and the SRO have held that “even [when] the parents ha[ve] no intention of placing the student in the district’s recommended program . . . their plan to unilaterally place a student, by itself, is not a basis to deny their request for tuition” or “a basis to reduce tuition reimbursement either.”^[255] I therefore will not reduce or deny tuition due to the timing of the contract, as juxtaposed with when the TDN was served, or otherwise. Case No. [247086]

Finally, the Department made no claim and provided no evidence to show that the tuition charged was unreasonable,^[256] that the parents failed to make their child available for any district evaluations,^[257] or that there was any collusion between the Parent and the Private School. ^[258] Taken in their totality, the equitable considerations favor the Parent and do not favor the Department. I find that the third prong of the Burlington/Carter standard has been established for the Parent, and that remedies are therefore warranted in this case.

Remedies

In support of their claim for tuition reimbursement, the parents submitted the contract they signed with the Private School,^[259] a payment affidavit from the Private School,^[260] and bank records.^[261] The payment affidavit shows that the parents paid a total of $68,305.00 to the Private School for the 2022-2023 school year.^[262] The agreed upon tuition in the contract, however, was $66,900.00, plus a payment plan fee of $650.00, for a total of $67,550.00.^[263] The payment affidavit adds $1,405.00 in “miscellaneous fees” to the $66,900.00 tuition, and the remaining fees beyond the payment plan fee ($755.00) are not described. It is not clear whether these additional fees were directly related to tuition or necessary to the Student’s admission to the Private School; thus, I will not award those fees that went undefined. I do, however, find the payment plan fee directly related to tuition, so I will include it in the award, which shall be $67,550.00.

Remaining Contentions

To the extent any further contentions have been made by the parties that are not addressed in this decision, I have found them to be either unnecessary to this decision, without merit, beyond my jurisdiction, or without sufficient basis in the record for a finding. Case No. [247086]

Accordingly, any claims for relief not specifically discussed in this decision are dismissed with prejudice, or denied, respectively.

DECISION AND ORDER

Upon the foregoing, it is hereby, Ordered, that the New York City Department of Education shall reimburse the parents, within 35 days, for the aggregate tuition obligation for the Student’s placement with the Private School, for the 2022-2023 school year attended by the Student, in the amount of $67,550.00.

So Ordered.

Dated: October 24, 2023

Richard J. Zeitler, Jr. (signed electronically) Impartial Hearing Office Case No. [247086]

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. Case No. [247086]

DISTRICT EVIDENCE

1. Speech-Language Evaluation 04/28/2021 4 pages DOE

2. Neuropsychological Evaluation 10/29/2021 27 pages DOE

3. Social History Evaluation 01/13/2022 4 pages DOE

4. OT Observation 01/14/2022 1 page DOE

5. Classroom Observation 02/10/2022 2 pages DOE

6. IEP 04/07/2022 22 pages DOE

7. Consent for Initial Services 05/21/2022 1 page DOE

8. Affidavit of [REDACTED] 06/05/2023 3 pages DOE

9. Affidavit of [REDACTED] 06/06/2023 3 pages DOE

PARENT EVIDENCE

A. Due Process Complaint with Receipt 03-29-2023 10 pages

B. Due Process Response 04-25-2023 03 pages

C. Ten Day Notice Letter with E-Receipt 08-09-2022 07 pages

E. D Academic Skills Assessment 08-08-2022 16 Enrollment Contract 04-23-2022 04 pages

F. Tuition Affidavit 05-11-2023 1 page

G. Parent Proof of Payment (various) 8 pages

H. Class Schedule (undated) 1 page

I. Q1 Progress Report Case No. [247086] 2022-2023 5 pages

J. Q2 Progress Report 2022-2023 4 pages

K. Q3 Progress Report 2022-2023 6 pages

L. Affidavit of [REDACTED] 06-12-2023 12 pages

M. Updated Tuition Affidavit 06-22-2023 01 pages

N. Corrected Parent Proofs of Payment Various Dates 12 pages

P. O Writing Samples 11-2021, 12- 4 2021, 01-2022 Affidavit of Dr. [REDACTED] 10/26/2021 11 pages

IHO EVIDENCE

I. Pre-Hearing Conference Summary and Order 05/25/2023 3 pages IHO

II. Order of Extension 05/25/2023 1 page IHO

III. Order of Extension 2 06/16/2023 1 page IHO

IV. Certification of Unavailability264 09/15/2023 264 Although entitled “Affidavit of Unavailability,” the document was not notarized and, moreover, it was not an attorney affirmation pursuant to CPLR § 2106(a), as it was not subscribed and affirmed to be true under the penalties of perjury. I will, therefore, treat it only as a certification of its statements. Case No. [247086] APPENDIX 1 page IHO

Redacted Information Term Used in FOFD

[REDACTED] Student

[REDACTED] Parent (testifying)

[REDACTED] Parent (non-testifying)

[REDACTED] Parent Attorney

[REDACTED] Department Attorney

[REDACTED], Ph.D. DOE School Psychologist

[REDACTED] DOE Special Education Teacher

[REDACTED] Private School

[REDACTED] Private School CSE Liaison

[REDACTED], Ph.D. Neuropsychologist

Committee on Special

N/A Education/Committee on Pre-

School Special Education

Footnotes

[1] See 20 U.S.C. § 1415(f), and New York State Education Law §§ 4404(1); see also Ex. A.

[2] See id. at A-1.

[3] See id.

[4] See id.

[5] See id. at A-2 to A-4.

[6] Id. at A-7 to A-8.

[7] See IHO Ex. 1.

[8] See IHO Exs. II, III, and IV.

[9] The transcripts shall be denoted in their date order, “Tr.1” through “Tr.4,” respectively.

[10] See Exs. 1 through 9 for the DOE, and Exs. A through P for the parents.

[11] The direct testimony was presented via affidavit for all the witnesses, with in-person cross-examination, except for the Parent, whose testimony was entirely in-person.

[12] See Ex. A-1; see also Ex. 6-1.

[13] See Ex. A-2; see also Ex. 2-22.

[14] See id. at 2-1 to 2-2.

[15] See id. at 2-4 (e.g. fluid reasoning was found to be in the 87th percentile; working memory was in the 96th percentile; processing speed was in the 84th percentile; vocabulary was in the 95th percentile; picture memory was in the 98th percentile; and matrix reasoning and picture concepts were both in the 84th percentile).

[16] Id. at 2-8.

[17] Id.

[18] See id.

[19] See id. at 2-11.

[20] Id. at 2-22 to 2-23.

[21] See Ex. 6-1 to 6-4, and 6-21.

[22] See id. at 6-5 to 6-6.

[23] See id. at 6-22. The program also recommended special education teacher support services (SETSS) for the remainder of the 2021-2022 school year, which is not at issue in this case.

[24] See Ex. 9 ¶ 8. I note that the affidavit states the date of the IEP meeting as May 2, 2022; however, this is the date the April 7, 2022, IEP was to be implemented.

[25] Id. ¶ 9.

[26] Id. ¶ 13.

[27] Id. ¶ 16.

[28] Id. ¶ 12.

[29] Id. ¶ 17.

[30] See Tr.1 at pp. 32 to 33.

[31] See id. at pg. 35.

[32] See id. at pg. 36.

[33] See id. at pg. 37.

[34] See id.

[35] See id. at pg. 38.

[36] Id. at pg. 40.

[37] See id. at pg. 46.

[38] Id. at pg. 53.

[39] Id.

[40] Id. at pg. 54.

[41] See id.

[42] See id. at pg. 56.

[43] See id. at pp. 57 to 59.

[44] See Ex. 8 ¶ 6; see also Ex. 6-21.

[45] Id. ¶ 8.

[46] Id. ¶ 9.

[47] Id. ¶ 8.

[48] Id.

[49] Id . ¶¶ 10 to 11.

[50] Id.

[51] See Tr.1 at pp. 70 to 71.

[52] See id. at pp. 74 to 75.

[53] See id. at pp. 76 to 77.

[54] See id. at pp. 78 to 79.

[55] See id. at pp. 79 to 80.

[56] See id. at pg. 85.

[57] See id. at pp. 81 to 82.

[58] Id. at pg. 82.

[59] Id.

[60] See id. at pg. 83.

[61] Id. at pg. 96.

[62] Id. at pp. 96 to 97.

[63] See Tr.1 at pp. 70 to 71.

[64] See id. at pg. 72.

[65] See id. at pp. 86 to 87.

[66] See id. at pp. 87 88.

[67] See id. at pg. 89.

[68] See id. at pg. 101 to 102.

[69] Id. at pg. 91.

[70] Id.

[71] Ex. L.

[72] Id. ¶ 8.

[73] See id. ¶ 10.

[74] See id. ¶ 17.

[75] Id. ¶ 33.

[76] Id. ¶ 36.

[77] Id. ¶¶ 37, 38, and 39.

[78] Id. ¶ 41.

[79] Id.

[80] Id.

[81] Id.

[82] See id.

[83] Id. ¶ 42.

[84] Id.

[85] Id.

[86] Id. ¶ 43.

[87] Id.

[88] Id. ¶ 49.

[89] Id.

[90] Id. ¶ 50.

[91] See id.

[92] Id. ¶ 52.

[93] Tr.2 at pp. 13 to 14.

[94] See id. at pp. 15 to 16.

[95] See id. at pg. 18.

[96] See id. at pp. 21 to 23.

[97] Id. at pp. 41 to 42.

[98] See id. at pg. 43; see also Ex. 2.

[99] See Tr.2 at pg. 43.

[100] See id. at pp. 46 to 47.

[101] See id. at pg. 50.

[102] See id. at pg. 51.

[103] See id. at pp. 55 to 56.

[104] Id. at pg. 56.

[105] Id.

[106] See id. at pp. 55 to 56.

[107] Id. at pg. 66.

[108] Id. at pg. 67.

[109] See id. at pp. 68 to 70; see also Ex. C.

[110] Id. at pp. 70 to 72.

[111] See id. at pg. 72.

[112] Id. at pp. 74 to 75.

[113] Id. at pg. 75.

[114] Id. at pp. 79 to 80.

[115] See id. at pp. .80 to 81.

[116] Id. at pg. 82.

[117] See id. at pp. 84 to 85; see also Ex. F.

[118] Ex. P ¶ 10.

[119] Id. (emphasis added).

[120] Id.

[121] Id. ¶ 12.

[122] Id. ¶ 16.

[123] Id.

[124] Id. ¶¶ 16 to 17.

[125] Id. ¶ 19.

[126] Id.

[127] Id. (emphasis added).

[128] Id. ¶¶ 19 to 20.

[129] Id. ¶ 21.

[130] Id.

[131] Id. ¶ 25.

[132] Id. ¶ 27.

[133] Id. ¶ 28.

[134] Id. (emphasis in original).

[135] Id. ¶ 29.

[136] Id. ¶ 31.

[137] Id.

[138] Id. ¶ 34.

[139] Id. ¶ 33.

[140] Id. ¶ 47.

[141] Id. ¶ 44.

[142] Id. ¶¶ 44 and 47.

[143] Id. ¶ 44.

[144] Id. ¶ 49.

[145] Id.

[146] Id. ¶ 44.

[147] Id. ¶ 51.

[148] Id. ¶ 52.

[149] Id. ¶ 53 and 55.

[150] Id. ¶ 56.

[151] See Tr.3 at pp. 11 to 12.

[152] See id. at pg. 12.

[153] Id. at pg. 13.

[154] Id. at pg. 15.

[155] See id. at pg. 16.

[156] See id. at pg. 19.

[157] See id. at pp. 35 to 36.

[158] Id. at pg. 30.

[159] See id. at pp. 19 to 20.

[160] Id. at pp. 20 to 21.

[161] Id. at pg. 21.

[162] Id. at pg. 22.

[163] Id. at pg. 23.

[164] See Tr.4 at pp. 4 to 12.

[165] See Tr.4 at pp. 13 to 61.

[166] See 20 U.S.C. § 1412 (a)(1)(A); Education Law §§ 4402(2)(a), (b)(2).

[167] See 34 C.F.R. § 300.13.

[168] Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).

[169] School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); and Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993).

[170] See id.

[171] See NYS Educ. Law § 4404(1)(c).

[172] See 20 U.S.C. §1415(i)(2)(C)(iii); see also Walczak v. Florida Union Free Sch. Dist., 142 F.3rd 119 (2nd Cir. 1998).

[173] Rowley, 458 U.S. at 189, 199; Grim v. Rhinebeck Central Schl. Dist., 346 F.3d 377, 379 (2d Cir. 2003); Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998), at 132 (an “appropriate” education is “not one that provides everything that might be thought desirable by loving parents”).

[174] See generally, 34 CFR § 300.320(a) and 8 NYCRR § 200.4(d)(2).

[175] See 34 C.F.R. § 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) (establishing annual goals related to needs); see also (34 C.F.R. § 300.320[a][2]; 8 NYCRR § 200.4[d][2][iii]).

[176] See 34 C.F.R. § 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.

[177] See 8 NYCRR 200.4(e)(7); Application of a Child with a Disability, Appeal No. 08-087.

[178] Cerra v. Pawling Cent. Schl. Dist., 427 F.3d 186, 195 (2d Cir. 2005), quoting Walczak, 142 F.3d at 130.

[179] Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see Rowley, 458 U.S. at 192.

[180] See A.D. ex rel. E.D. v. Bd. of Educ. of City Sch. Dist. of New York, 690 F. Supp. 2d 193, 206 (S.D.N.Y. 2010) (citing Frank G. v. Bd. of Educ., 459 F.3d 356, 364 (2d. Cr. 2006)).

[181] Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2nd Cir. 2007).

[182] Frank G., 459 F.3d 356 at 364

[183] See id. at 364 (citing Carter, 510 U.S. 7 at 14).

[184] Gagliardo, 489 F.3d at 112 (quoting Frank G., 459 F.3d at 364-65).

[185] See L.K. v. New York City Dep't of Educ., 674 Fed. App'x 100, 101 (2d Cir. Jan. 19, 2017).

[186] See 20 U.S.C. § 1412(a)(10)(C)(iii)(III).

[187] See id.

[188] See E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014).

[189] C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 840 (2d Cir. 2014).

[190] See Mr. and Mrs. A v. New York City Dep’t of Educ., 769 F. Supp.2d 403, 419 (S.D.N.Y. 2011); see also E.M., 758 F.3d at 461.

[191] See 20 U.S.C. § 1412(a)(10)(C)(iii)(I).

[192] Bd. of Educ. of Yorktown Cent. Sch. Dist. v C.S., 990 F.3d 152, 171 (2d Cir. 2021).

[193] Id.

[194] See S.W. v New York City Dep't of Educ., 646 F. Supp. 2d 346, 361-363 (S.D.N.Y. 2009).

[195] See Doe v. East Lyme, 790 F.3d at 454.

[196] Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 454 (2d Cir. 2015) (citation omitted).

[197] See Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 486 (2d Cir.2002).

[198] See Ex. 6-1 to 6-4, and 6-21.

[199] See id. at 6-1 to 6-13.

[200] See id. at 6-5 to 6-6.

[201] See Tr.1 at pp. 74 to 75.

[203] Ex. 8 ¶ 8.

[204] Id.

[205] Id. ¶¶ 10 to 11.

[206] Id. ¶¶ 10 to 11.

[207] See Ex. 9 ¶ 12.

[208] Tr.1 at pg. 53.

[209] See id. at pg. 46. I note here that I give no weight to the DOE Teacher’s statement that she believed the Student’s performance went from “far below” to “approaching” or “meeting a benchmark” over the course of the 2021-2022 school year. Id. at pg, 54. The Department brought no corroborating documentation for this assertion, which I find particularly important, given the witness’s qualified response and the fact that written records of performance are regularly generated and kept as part of a student’s file.

[210] Endrew F. v. Douglas County Schl Dist. Re-1, 580 U.S. 386 (2017)

[211] Ex. 8 ¶ 17.

[212] See Tr.1 at pp. 57 to 59.

[213] See Tr.1 at pp. 57 to 59.

[214] See Ex. 2-8.

[215] See id. at 2-11.

[216] Ex. P ¶ 16.

[217] Tr.3 at pg. 22.

[218] Id. ¶ 19.

[219] Id. (emphasis added).

[220] Mrs. B., 103 F.3d at 1120; see also Rowley, 458 U.S. at 192.

[221] Cerra, 427 F.3d at 195 (quoting Walczak, 142 F.3d at 130).

[222] In finding that a FAPE was substantively denied, there is no need for me to also perform a procedural FAPE analysis, but I note for the record two procedural defects: (1) the lack of any real “management needs,” and (2) the DOE Teacher’s testimony that curriculum and standards were not discussed during the IEP meetings. (See Tr.1 at pp. 86 to 87) While each appears to represent a clear procedural error, I would likely not have found their cumulative effect to be serious enough to result in an independent, substantive denial of FAPE

[223] Gagliardo, 489 F.3d at 112; see also M.S. v. Bd. of Educ., 231 F.3d 96, 104 (2d Cir. 2000).

[224] Gagliardo, supra., 489 F.3d at 115 (citing Frank G., 459 F.3d at 365 (quoting Rowley, 458 U.S. at 188-89)).

[225] Ex. 2-22 to 2-23.

[226] Ex. L ¶ 8.

[227] See id. ¶ 17.

[228] Id. ¶ 36.

[229] Id. ¶¶ 37, 38, and 39.

[230] See id.

[231] Id. ¶ 42.

[232] Id.

[233] Id.

[234] Gagliardo, 489 F.3d at 112 (quoting Frank G., 459 F.3d at 364-65).

[235] Ex. P ¶ 25.

[236] Ex. L ¶ 41.

[237] Id. ¶ 43.

[238] See Tr.2 at pp. 21 to 23.

[239] Id.

[240] Id. ¶ 49.

[241] Id. ¶ 50.

[242] Ex. P ¶ 56.

[243] Tr.2 at pp. 74 to 75.

[244] Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 (6th Cir. 2003).

[245] Gagliardo, 489 F.3d at 112 (quoting Frank G., 459 F.3d at 364-65).

[246] See A.D. ex rel. E.D. v. Bd. of Educ. of City Sch. Dist. of New York, 690 F. Supp. 2d 193, 206 (S.D.N.Y. 2010) (citing Frank G., 459 F.3d 356 at 364).

[247] See Mr. and Mrs. A., 769 F. Supp.2d at 419.

[248] See Ex. 2-1.

[249] See Tr.2 at pp. 46 to 47.

[250] See Ex. 6-22

[251] See Tr.2 at pp. 55 to 57.

[252] See Ex. C.

[253] See id. at C-4 to C-5.

[254] Id. at pp. 70 to 72.

[255] Application of a Student with a Disability, Appeal No. 23-102 (Jul. 31, 2023), at pg. 17 (citing E.M., 758 F.3d at 461, and C.L., 744 F.3d at 840).

[256] See L.K., 674 Fed. App'x at 101.

[257] See 20 U.S.C. § 1412(a)(10)(C)(iii)(III).

[258] See E.M., 758 F.3d at 461.

[259] See Ex. E.

[260] See Ex. F.

[261] See Ex. G.

[262] See Tr.2 at pp. 84 to 85; see also Ex. F.

[263] See Ex. E-3.