Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case No. 600849

Student’s Name: [REDACTED] (“Student”)

Date of Birth: [REDACTED]

District: [REDACTED] ( the “District”)

Hearing Requested by: [REDACTED], Esq., of the [REDACTED]., on behalf of [REDACTED] (the “Parent”) and the Student

Record Close Date: May 7, 2024

Hearing Officer: Randy Glasser, Esq.

On June 15, 2023, [REDACTED], Esq., of [REDACTED], filed a due process complaint (“DPC”) on behalf of the Parent and her child, the Student, regarding her special education program and services for the period of February 22, 2023 through the end of the 2022/2023 school year (the “IDEA”) (Parent Ex. “A”). The District filed a Response dated June 22, 2023 (District Ex. “2”). This Hearing Officer was appointed as the Impartial Hearing Officer (“IHO”) on or about June 22, 2023. A prehearing conference was held on July 17, 2023, and status conferences on September 5, 2023 and October 5, 2032. The hearing went forward on November 13, 2023, November 20, 2023, December 4, 2023, January 8, 2024, and February 12, 2024, at which [REDACTED], Esq., of [REDACTED], appeared for the District and [REDACTED], Esq., of [REDACTED] appeared for the Parent and Student.

The District submitted Exhibits “1” through “11”^[1] into evidence. The Parent submitted Exhibits “A” through “EE” into evidence. This IHO submitted Exhibits “I” through “VIII” into evidence, consisting in part of Affidavits for the Parent’s witnesses. Pursuant to the parties’ request they submitted written closings on March 11, 2024 (see: District’s Post Hearing Brief at IHO Ex. “VII”, and Parent’s Closing Brief at IHO Ex. “VIII”).

BACKGROUND AND POSITIONS OF THE PARTIES

The Student is [REDACTED] [REDACTED] years old and classified as a student with Learning Disability. Pursuant to the Summary and Diagnostic Impressions in a Psychological Evaluation dated November 12, 2021:

[The Student] is a 6^th grade student classified with a Learning Disability with Consultant Teacher services at Discovery. She is being evaluated by the Committee on Special Education (“CSE”) in accordance with the state-mandated three-year reevaluation of her current classification and program. [The Student’s] cognitive evaluation indicates that her overall cognitive ability is in the Average range. Her verbal ability and spatial ability are in the Average range. Her nonverbal ability, working memory skills and processing speed are in the Below Average range. [The Student] struggled in particular with math problem solving.

The evaluation appears to continue to reflect that of a student with a learning disability. Services appear to continue to be warranted. . .

Parent Ex. “E” at pp. 19-20.

In addition to the Impressions contained in the Independent Educational Evaluation dated August 31, 2022, in Parent Ex. “E” at pp. 42-43, [REDACTED], Ph.D., reached the following conclusions regarding the Student after reviewing the evaluations, records, and information regarding the Student’s performance at the [REDACTED]School (the “School”), listed in his Affidavit at IHO Ex. “IV” at ¶ 9, and interviewing the Parent:

10. My testing determined that [the Student’s] academic skills ranged from the low to average range, with significant discrepancies between tasks.

11. [The Student] showed a relative area of strength in her object naming facility skills and abilities, and significant weaknesses in her phonological processing, associational fluency, reading recognition, nonsense word decoding, silent reading fluency, reading comprehension, math computation, math fluency, spelling, writing fluency, and listening comprehension skills and abilities.

12. I concluded that [the Student] presented as a child with characteristics of a nonverbal learning disability. On my testing, she showed the signs, markers, and characteristics of a child who meets the educational criteria for the classification of a child with a learning disability, specifically a reading disorder a mathematics disorder, and a disorder of written expression. On my testing, [the Student] demonstrated specific weaknesses in her visual-spatial, and nonverbal reasoning. During psychological testing in December 2018, she also demonstrated weakness in fluid reasoning skills. In particular, she shows a double deficit of difficulties with phonological processing and rapid naming.

13. I thus found that [the Student] meets the New York Department of Education guidance standards to be identified with dyslexia, dyscalculia, and dysgraphia. Based on my review of prior testing, [the Student] has regressed in various skills areas over time^[2].

IHO Ex. “IV” at ¶¶ 10-13.

The Parent unilaterally placed the Student at the School for the 2022/2023 school year, for which she is now seeking the District’s direct funding for the Student’s tuition, and related costs for the period of February 22, 2023 through the end of the 2022/2023 school year, along with additional academic and related services “to compensate for the denial of “FAPE” (a/k/a “compensatory services”), “payment of attorneys’ fees and expenses associated with representation in this matter”, and “any further relief that the Hearing Officer may deem just and proper to ensure the student a free appropriate education” (Parent Ex. “A”; IHO Ex. “VIII”; and Tr. 398). The Parent’s position is that the Student is entitled to such funding because of the District’s failure to provide a free appropriate public education (“FAPE”), pursuant to the IEP dated March 20, 2023 which allegedly does not offer appropriate reading and math instruction for the Student, the District engaged in “impermissible predetermination of [the Student’s] Programming”, the present levels of performance and annual goals in the March 20, 2023 are “deficient”, the program developed pursuant to the March 20, 2023 IEP fails to include assistive technology for the Student and the District failed to conduct an assistive technology evaluation of the Student, despite [REDACTED]’s recommendation that the Student receive assistive technology, the School is an appropriate placement for the Student, and the equities favor such funding (IHO Ex. “VIII”). Notably, the Parent did not address her request for attorneys’ fees and costs and compensatory services in her closing statement.

The District argued that they provided the Student with a FAPE because the program recommended pursuant to her Individualized Education Program (“IEP”) dated March 20, 2023 was appropriate, in that it included a statement of her present levels of performance “as known to the CSE at the time of the meeting”, annual goals “designed to meet her needs to allow her to make progress in the general education curriculum”, and a “15:1” special education program and services that was recommended after considering and recommending in part all the recommendations contained in [REDACTED]’s Evaluation at Parent Ex. “E” (IHO Ex. “VII” at pp. 8-13). The District continues to argue that it provided the Student with a FAPE despite the fact that it neither recommended an assistive technology evaluation nor services because neither the Parent nor the School’s personnel at the CSE meeting indicated that the Student “had any assistive technology needs” (Id. at p. 13), and because it did not predetermine the Student’s placement (Id. at pp. 13-15). In addition, the District argues that the 15:1 placement recommended by the CSE for the Student’s core classes is the least restrictive environment in which she can receive a FAPE because she would be with her general education peers for the remainder of her classes, including her intensive reading and math classes, Home Base and specials, and the recommended program was “appropriate to enable the Student to receive meaningful educational benefit (Id. at pp. 15-17). Finally, the District argued that the Parent is not entitled to the requested funding for the Student’s tuition and costs at the School the “Parent failed to meet her burden to demonstrate that [the School] was appropriate” and the Parent’s request is not supported by the equitable considerations (Id. at pp. 17-23).

The Student’s eligibility and classification are not at issue in this case.

FINDINGS OF FACT AND DECISION

A. Introduction: The IDEA provides that children with disabilities are entitled to a FAPE (20 U.S.C. § 1400 (d)(1)(A)). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensively written IEP (Id., 20 U.S.C. §1414(d); 34 C.F.R. § 300.17). A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through, the IDEA's procedures, and is (c) reasonably calculated to enable the student to receive educational benefits. Board of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). In order to meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas County Sch. Dist., RE-1, 137 S. Ct. 988 (2017).

Decisions of impartial hearing officers must be on substantive grounds based on a determination of whether the student received a FAPE (8 NYCRR § 200.5(j)(4)(i)), except:

In matters alleging a procedural violation, an impartial hearing officer may find that a student did not receive a free appropriate public education only if the procedural inadequacies impeded the student’s right to a free appropriate public education, significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provision of a free appropriate public education to the parent’s child, or caused a deprivation of educational benefits. Nothing in this paragraph shall be construed to preclude an impartial hearing officer from ordering a school district to comply with procedural requirements under this Part and Part 201 of this Title 8 NYCRR § 200.5(j)(4)(ii).

Id.

School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in the parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement (NYS Educ. Law § 4404(1)(c)).

The IDEA empowers a hearing officer to grant the relief he/she deems appropriate. 34 CFR §300.516(c)(3). One such remedy is reimbursement of tuition and related expenses. Florence County Sch. Dist. Four v. Carter, 510 U.S. 7(1993); Burlington Sch. Comm. v. Mass. Dep’t. of Educ., 471 U.S. 359, (1985). Notably, the mere fact that the state educational agency and/or local educational agency (“LEA”) has not approved the private school placement does not bar the parents from reimbursement. Florence County Sch. Dist. Four v. Carter, supra.

The District presented four (4) witnesses on its direct case: [REDACTED], CPSE and CSE Chairperson (“Chairperson”), [REDACTED], Special Education Teacher (“District Special Education Teacher”), [REDACTED], School Psychologist (“School Psychologist”), and [REDACTED], Teacher (“District Teacher”); and one (1) witness, the School Psychologist, on rebuttal.

The Chairperson testified in relevant part how the Parent enrolled the Student in the District, and the Student was not attending the District’s schools when the “transfer” CSE meeting was held on March 20, 2023 (T. 104), her staff did not receive anything at first from the School when they reached out requesting progress notes and report cards, but then received the Woodcock Johnson testing the School conducted (T. 105-106, 107), she sent a draft Individualized Education Program (“IEP”) to the family before the CSE meeting and why (T. 108), she did not know that the meeting was being recorded and if she had, she would have recorded the meeting with Teams and who was present at the transfer CSE meeting (T. 110), the documents reviewed at the meeting (T. 110-111), at the meeting the School’s staff provided an update, and described the 12:1+1 class in which the Student was enrolled, her challenges, why she was placed in a one-to-one reading and math class in December 2022, and her management needs (T. 111-112), the Parent reported at the meeting that the Student was no longer seeing the anxiety that was indicated in [REDACTED]’s report, but the Student did have concerns regarding math and reading and was starting to feel that she was not successful, while the CSE discussed what the 15:1 program looked like, how the students in that class had similar reading and math needs to the Student, the supports embedded in the program e.g., speech therapist and social worker, that they offer intensive math and reading intervention that would be in addition to her content instruction and Home Base, including how it is similar to resource room and she would interact with nondisabled peers (Tr. 113-114), the Parent voiced concerns (and later stated that she did not agree) about the Student attending the District’s program since she was not being successful in the 12:1+1 class and she needed the one-to-one instruction to exhibit growth (T. 114-115), the one-to-one reading and instruction was not listed on the Student’s IEP because regular education students can be in the class as well, but intensive reading and math instruction was discussed at the CSE (T. 120), District Ex. “6” contain the meeting minutes and what they state (T. 123), the CSE considered, discussed, and incorporated the recommendations contained in [REDACTED]’s report at District Ex. “10” (T. 124-127), [REDACTED]’s recommendation regarding assistive technology, and that the District makes assistive technology available to the students and the Student would have received a laptop (T. 128), how the Student’s present levels of performance were determined, e.g., they were taken from [REDACTED]’s IEP and [REDACTED]’s Report (T. 128-129), how the goals were created since there was no report on how she was progressing on her goals, and neither the School’s staff nor Parent made any suggestions regarding the goals (T. 129-131), the Student would spend four (4) hours during the day with regular education students, if she attended the District’s 15:1 program (T. 132), the IEP developed at the March 20, 2023 CSE would have provided the Student with a FAPE and that the School’s program would not and why (T. 132-133), the Parent stated at the meeting that she was not in agreement with the District’s 15:1 program and why (T. 133-134), the 15:1+1 program was appropriate and why (T. 135), the Student’s reading and math was at a second grade level (T. 135), the School staff reported that the Student does not work independently and that she moved from the 12:1+1 in math and reading to a one-to-one instruction because she was struggling (T. 145-146, 147, 149, 150), at the CSE meeting she indicated that she understood the Student needed one-on-one assistance, but the District’s model is in a small group for reading (T.150, 151, 152, 154), at the end of the CSE meeting the recommendation for intensive reading support and its frequency was left unclear (T. 159), if she attended the District’s program the Student would have gotten some one-on-one assistance in her content classroom and then be scheduled for an intensive reading class (T. 161-162), even though the IEP dated March 20, 2023 does not state the Student will receive individualized attention, there is a reference to check in with her at every step (T. 163), the present levels of performance were not updated on the IEP because the CSE did not have new information (T. 165-166), the IEP was not updated to state that she was getting one-on-one instruction in math and reading (T. 168), she said that the District’s reading program could be individualized to meet the Student’s needs (T. 170), the size of Home Base was not stated at the meeting (T. 178), [REDACTED]’s recommendation that an auditory processing evaluation be done was not recommended by the CSE because the School’s staff did not state that they had pursued that or that the Student needed it, just that she had slow processing, and the CSE did not recommend assistive technology because the School’s staff did not state that they were using assistive technology at the School or that the Student needed it (T. 180, 196), the CSE requested Report Cards and any records that would show the Student’s progress on the goals but did not receive anything from the School (T. 183), based on what was shared at the CSE meeting she felt the goals on the IEP were still appropriate (T. 184-185), the auditory processing evaluation that was conducted in August 2023 indicates that the Student does have some auditory processing deficits (Parent Ex. “F”; T. 187), in the meeting minutes she failed to indicate that the School’s staff objected to the CSE’s recommendations, or that the Student was receiving one-on-one reading and math at the School (T. 190), despite the Student’s anxiety the CSE did not recommend counseling based upon the School staff and Parent’s input (T. 192-193), the CSE did not create a goal to address the Student’s lack of self-confidence or frustration or recommend services (T. 193), the 15:1 class at the District could have addressed the Student’s social needs because the counseling provided by the Social Worker is embedded in the program (T. 195), the School did not report at the meeting that they were providing counseling to, the Student (T. 195-196), and the Student could have received one-on-one instruction in reading and math if she attended the District’s 15:1 program (T. 196).

The District Special Education teacher testified in relevant part she pushes into the seventh-grade English language arts, math, science and social studies classes (T. 205), she attended the CSE meeting for the Student on March 20, 2023 (T. 207), at the meeting the School’s staff described how they were providing instruction to the Student, and that since the Student was not making significant progress they are trying different instructional strategies along with supports such as one-to-one instruction (T. 210-212), the CSE described the District’s 15:1 classroom and opportunities for smaller instruction, along with the written instruction provided (T. 212-214), the Parent expressed concerns with the bigger classroom because the Student was not successful at the School (T. 214), there was a discussion at the CSE meeting about the Student’s reading and math levels and how they were similar to those of the students in the 15:1 class (T. 215), the District’s 15:1 program provides the support of a speech therapist and social worker (T. 216), the School’s staff expressed concerns regarding the Student’s self-esteem which a social worker would address (T. 216), the CSE discussed that once the Student commenced enrollment in their program they would assess her levels and then determine what type of specialized instruction she needed (T. 217), the continuum of services was discussed at the CSE, which she then described^[3] (T. 229), the School’s staff at the meeting described the Student’s program which included specialized classes with some one-to-one instruction, how many students were actually in the 15:1 class and that a speech language therapist pushes into ELA and a social worker pushes in as well (T. 229-230), the CSE discussed how the Student would be provided with specialized reading instruction in the District’s program, which included if the need arose the Student would receive one-to-one reading instruction^[4], and the intensive math lab offered by the District (T. 230-233), the goals were discussed at the CSE meeting with input from the teachers at the School about the Student’s current functioning and the kind of skills she needed to work on (T. 233)^[5]; at the meeting the School’s staff asked about the services being offered by the District and whether they could properly support the Student and the Parent asked questions too which were answered (T. 234), the Student would have “time” with general education peers in the 15:1 program at the District (T. 234-235), her belief that the recommended 15:1 program would have provided a FAPE in the least restrictive environment, and she would have educationally benefited from her goals, and therefore been appropriate for the Student (T. 235-236), the goals on the IEP at Parent Ex. “B”, were written at the CSE meeting with some input from teachers at the School about the Student’s current functioning and the kinds of skills she needed to work on (T. 237),^[6] since specialized reading is a general education service it is not put on the IEP (T. 239), she does not remember whether there was a discussion about removing the teaching assistant who was on the prior school district’s IEP (T. 240-244), the CSE discussed Home Base that is a general education services so it is not on the IEP (T. 247-249), the School staff stated that the Student needs the one-on-one instruction she was being pulled out of class for (T. 249-250), in the District’s 15:1 class, students receive grade level content tailored to their needs (T. 254), assistive technology is important for the Student to access her curriculum because she is significantly below her peers in reading (T. 255), at the meeting the Parent was told that the Student could have one-on-one assistance which is not the same as one-on-one instruction (T. 257), that she agreed the Student needed the intensive support she was receiving at the School and the School had been responsive to her needs, which includes the need for intensive one-on-one instruction in reading (T. 258-259), the Student would receive daily reading instruction at the Middle School and reading lab every other day (T. 260), it would not have changed the CSE’s recommendations if she had known the meeting was being recorded (T. 261), Home Base has less than fifteen (15) students, with the number of students capped at the number of students in the class it corresponds with e.g., there are up to fifteen (15) students in Home Base when it corresponds to a 15:1 class (T. 262, 265), the daily intensive reading class generally has five (5) students, but could be more than eight (8) students in the class (T. 262-263, 263-264), and the math intervention class general has between five (5) and ten (10) students, and is capped at ten (10) students (T. 263, 264).

The School Psychologist testified that she does not remember whether or not the CSE went over all of the recommendations contained in [REDACTED]’s Report (T. 275), the CSE discussed [REDACTED]’s recommendation that the Student be placed in a 12:1:1 class at the School and there is no 12:1:1 class at the District’s Middle School (T. 276), the CSE discussed the District’s 15:1 class which had students with a similar cognitive profile to the Student (T. 277), [REDACTED]’s recommendation the Student receive indirect and direct speech language services for the Student and why he recommended it but the Student did not have speech language deficits (T. 277-278), the District’s Reading Lab and Home Base (which is open to general and special education students) would address [REDACTED]’s recommendation that the Student receive daily resource room (T. 279, 316), providing a description of Home Base (T. 279-280), [REDACTED] did not really support his recommendation for school-based counseling in his report (T. 280), the District’s 15:1 class would have addressed this recommendation because a social worker pushes into the class (T. 281), [REDACTED]’s recommendation that the Student receive direct assistive technology services was not discussed (T. 281), the School’s staff made it sound like the 12:1:1 class was not working because she had to be pulled out for one-on-one instruction in math (T. 282, 283), a District representative said if the Student needed one-on-one support it could be given to her (T. 283), at the CSE the Parent stated that she knew the Student was in the right place at the School and she was keeping her there (T. 283), how specialized reading is provided at the District’s Middle School in the Reading Lab which consists of ten (10) or less students, and one-on-one instruction could be offered (T. 284, 323), the District uses data to determine students’ needs and if needed the Student could receive one-on-one reading instruction (T. 285), specialized reading instruction is not on a student’s IEP because open to all students (T. 286), specialized math and reading and Home Base were discussed at the CSE meeting (T. 287), the CSE discussed the Student’s present levels of performance which included a reading evaluation the School had recently conducted, but there was no discussion about the goals because the Parent made it clear the Student was not attending the District’s program (T. 286-288), the Student would have access to general education peers in the District’s 15:1 program (T. 289), her opinion that the Student’s 12:1:1 placement at the School was not appropriate, but the 15:1 class in the District was appropriate and why (T. 289-290), the Student could have continued to work on the goals used from the [REDACTED] IEP and the District’s IEP which were reasonably calculated to provide the Student with educational benefit in the least restrictive environment (T. 291), the CSE’s recommendations were based upon the documents they had (Parent Ex. “E” at p. 1, 15 and 23), and input by the School’s staff (T. 294-295), and the CSE would not have changed their recommendations if they had known the meeting was being recorded (T. 333).

The District Teacher testified in relevant part regarding the programs available at the District’s Middle School (T. 352-353), the purpose of CSE meeting held on March 20, 2023 (T. 355), a description of District’s 15:1 class and services embedded in this program (T. 358-359), the CSE described to the Parent, at the meeting, how one-on-one instruction might be provided to the Student in the District’s program (T. 359-360), in the 15:1 class students have opportunity to be with general education peers (T. 360-361), how the CSE discussed Home Base (T. 363), it was discussed at the CSE that District’s 15:1 class would have been a good fit for the Student and why (T. 363), the School staff did not discuss any goals they were working on at the meeting (T. 363-364), the supplemental aides and services/programs on the March 20, 2023 IEP were created partly from what the School staff spoke about at the meeting (T. 364), the School staff spoke about the Student’s goals at the meeting (T. 364-365), the District could have easily implemented the March 20, 2023 IEP, which would have provided the Student with a FAPE in the least restrictive environment (T. 365, 366), and the School’s program is not appropriate and why, e.g., it is too restrictive (T. 366-367), and the District’s 15:1 program was most appropriate for the Student (T. 367).

The School Psychologist testified in relevant part on rebuttal regarding what a full psycho-educational evaluation should include, e.g., cognitive and achievement testing, which she is qualified to administer (T. 635-636); [REDACTED]is not qualified to administer cognitive testing or to interpret other people’s cognitive testing (T. 637), [REDACTED]is qualified to administer the four (4) tests referenced in ¶14 of his Affidavit at IHO Ex. “IV”, but not interpret them (T. 643-644), the school psychologist is needed to draw conclusions from these four (4) tests at a CSE meeting (T. 643-644), but [REDACTED]can still make recommendations regarding the Student’s program (T. 644).

The Parent presented five (5) witnesses on her direct case: [REDACTED], the Student’s Advisor at the School (“Advisor”), [REDACTED], the Student’s Reading Teacher at the School (“Reading Teacher”), [REDACTED], Co-Head of the School (“Co-Head”), [REDACTED], and the Parent.

In addition to the testimony contained in the Advisor’s Affidavit at IHO Ex. “I”, she testified in relevant part that she did not tell the District’s personnel at the CSE held on March 20, 2023 that she was recording the meeting (T. 404), counseling was not included in the Student’s program at the School, and that she did not provide the Student’s Report Cards or Progress Reports from the School at the CSE (T. 405), she has never taught the Student (T. 405-406), she does not recall if she spoke about the Student using assistive technology at the CSE meeting, but she was never asked (T. 406), District personnel never spoke about the opportunities the Student would have for one-to-one instruction at the CSE meeting (T. 406), she never discussed the goals being worked on at the School at the CSE meeting because it was never brought up (T. 407), the Student is making slow but steady progress in reading (T. 409-410), the School is using the same Really Great Reading Program as before for the Student, even though she made no progress, but instead of in a 3:1 group, the Student now receives one-to-one reading instruction (T. 408), at the CSE meeting she spoke about the fact that the Student rarely worked independently (T. 408), the Student is not exposed to general education peers at the School (T. 409), what she thought would be discussed at the CSE meeting (T. 411), she went into the CSE meeting believing that the Student should stay at the School (T. 412), how she is familiar with the Student’s performance in her classes (T. 415-417), no one at the CSE meeting asked what assistive technology the Student received at the School, which she needed (T. 417-418), no one at the CSE meeting asked about the program she was receiving or the goals worked on at the School, just how she was doing and she explained why she did not tell the CSE that the Student was not making any progress at the School (T. 418-419), the Report Cards would indicate the Student is making progress, and she discussed the Student’s need for maximum support at the CSE (T. 419), after stating that the Student’s need for a 1:1 program in reading and math, she asked the District about the reading, writing and math program they were offering the Student (T. 419-420), why the School concluded the Student needed one-to-one instruction (T. 421-422), how the Student was feeling, impacted her in her classes (T. 422, 423-424), the discussion at the CSE about the Really Great Reading program used for the Student at the School (T. 424), at the CSE the District discussed that they used Reading 180 and Systems 44 (T. 424), she did not share data she collected from the teachers at the School, she was not asked (T. 425, 426), the assistive technology the Student received at the School (T. 427), she is not certified for any reading program, but working towards her Wilson Certification (T. 428), the Student was not receiving one-to-one instruction for all of her classes (T. 432), the Student’s one-to-one instruction for reading was the least restrictive environment (T 433), and the Student’s social needs were being met at the School (T. 434. 436).

In addition to the testimony contained in the Reading Teacher’s Affidavit at IHO Ex. “II”, she testified in relevant part regarding the fact that she is not certified by New York State in Reading, but her early childhood certificate covers literacy (T. 445), she did not attend the CSE meeting held on March 20, 2023, but listened to the recording instead (T. 446), even though she recommended that the Student receive counseling because she experienced anxiety, she does not know if the Student received such counseling (T. 449-450), the Student’s social emotional needs were met at the School and why (T. 455-456), and a reading class with general education peers would not have been appropriate for the Student (T. 446).

In addition to the testimony contained in the Co-Head’s Affidavit at IHO Ex. “III”, she testified in relevant part regarding the fact that the Student did not receive counseling at the School during the 2022/2023 school year (T. 470), the School uses a two-prong approach to instruction to “close the gaps” and expose the Student to grade level content (T. 473-474), she did not directly teach the Student and is not a certified reading teacher (T. 474), she attended the CSE meeting for the Student on March 20, 2023, but she did not share the data to move, the Student to one-on-one reading instruction because she “barely knew about the meeting”, it was not intentional that she did not share this data and she was not asked for the data (T. 474-478), neither she nor anyone else from the School discussed the goals they were working on with the Student, and the School implemented some of the recommendations in [REDACTED]’s Report (T. 479), at the School’s Middle School there is weekly direct instruction taught by the social worker in collaboration with the classroom teacher, using the Castle Framework and Michelle Garcia Winners’ Thinking curriculum, which was not discussed at the CSE meeting and the Student did not receive speech at the School (T. 480-481), there was one general education student in the Student’s 12:1:1 class during the 2022/2023 school year (T. 482), the Student’s social emotional needs were being addressed at the School and why (T. 483), the CSE did not ask the School if the Student was receiving counseling or the Student’s progress on her goals, but the School shared the Student’s present levels of performance (T. 483-484), if the District had requested the Student’s report cards and progress reports the School would have provided them (T. 486), the School did not have information that the Student needed speech language services, e.g., there was no testing supporting [REDACTED]’s recommendation for the Student to receive these services (T. 486, 488), she did not know whether [REDACTED]’s recommendation that the Student receive counseling was for the School or the District’s program (T. 489), and the School reported about the Student’s performance at the CSE meeting (T. 490).

In addition to the testimony contained in [REDACTED]’s Affidavit at IHO Ex. “IV”, he testified in relevant part regarding the fact that he did not conduct a classroom observation of the Student as part of his evaluation in August 2022 and why, he did not observe the Student at the School during the 2022/2023 school year, or at any time School (T. 524, 552-553), he did not interview teachers when preparing his report and did not include any teacher rating scales filled out by teachers (T. 525), he did not speak with any of the Student’s teachers, he is not affiliated with the School and when he evaluated the Student she was attending the [REDACTED]School (T. 528, 529), he neither makes nor is qualified to make diagnoses of students (T. 529), why he recommended the School for the Student (T. 530), in addition to performing the Independent Educational Evaluation of the Student he is an educational consultant for the Parent (T. 532), when he evaluated the Student, he was aware she had applied and been accepted at the School (T. 533, 534), there are general education students at the School (T. 535), he recommended weekly speech language therapy services for the Student (T. 536), he recommended school-based counseling and specialized reading instruction for the Student, and she was not receiving assistive technology when he evaluated her (T. 537), a 15:1 class was not appropriate at the time he prepared the report in August 2022, or today for the Student regardless of the school district (T. 539-540, 563), he had no data for the Student from a 15:1 because she has never been in a class with that ratio (T. 540), the basis of his statement that she was making progress in her reading program at the School, he did not speak with any of the Student’s educational providers at the School, and he relied on progress reports from the School instead (T. 543), what he meant when he stated that he treats in part struggling students (T. 546), he further explained how the Student had regressed in various areas over time, e.g., the Student regressed in reading during the 2021/2022 school year after being given intensive reading support (T. 547), when he said that the Student has dyslexia, dyscalculia, and dysgraphia, this was a classification and not a diagnosis (T. 549, 550), he has specialized knowledge in the field of education (T. 554), he did not have teacher rating scales when he prepared his report in August 2022 because they had not been returned to him, but regardless, this did not invalidate his report (T. 555, 558), since the Student has a severe learning disability, he was looking for something like the School for the Student and why (T. 559), he would have had a more complete report and picture of the Student if the teacher rating scales had been returned, and the information would have been helpful, and when he prepared his report he had no knowledge of any supportive services that may be available to the Student from the District (T. 560), and at the time of his report he would not have recommended a 15:1 class for the Student regardless of the provider (T. 563).

In addition to the testimony contained in the Parent’s Affidavit at IHO Ex. “V” she testified in relevant part regarding the fact that she knew, but did not think she had to share with the District that the CSE meeting held on March 20, 2023 was being recorded (T. 583), why she asked the Advisor to record the meeting (T. 584), when she attended the CSE meeting she was only prepared to agree with the Student attending a District program if it had one-to-one instruction in math, and reading like at the School (T. 591), at the CSE meeting she was not asked for and did not provide any documents to the District beforehand and she did not ask the School to provide any documents because she thought the District would ask for them (T. 592), she does not remember if she received the Student’s Report Cards or Progress Reports from the School, but she did get verbal feedback from the teachers (T. 592-593), she has not paid any tuition to the School for the 2022/2023 school year (T. 595, 613), this action was commenced for the Student’s tuition at the school for the period of March 20, 2023 to June 20, 2023, even though she attended the School for the entire 2022/2023 school year, and she does not know who paid the Student’s tuition for the period of December 9, 2022 to March 19, 2023 (T. 596), the Student’s tuition for three (3) months at the School is Fifteen Thousand Six Hundred and Fifty-Nine ($15,659.00) Dollars (T. 603), she has not received any invoices for or paid the Student’s tuition at the School for the period of December 9, 2022 to March 19, 2023 (T. 613), when she moved to the District, she intended for the Student to continue to attend the School (T. 614), at the CSE meeting held on March 20, 2023 they said they were not offering a 1:1 program to the Student, so the Parent knew whatever program they were offering would not work for her because she was getting intensive help at the School and still struggling (T. 616), her understanding at the CSE is that instead of 1:1 instruction the Student would be in a 15:1 class, where the Student would sometimes get help for reading, but it would not be 1:1 (T. 619-620), the Parent’s opinion that the Student needed 1:1 instruction was based upon what the School staff had told her, along with [REDACTED]’s Report (T. 621-622, 629-630), the Parent and her husband each made less than TWENTY FIVE THOUSAND DOLLARS ($25,000.00) in 2022 (T. 622-624), if the District had offered the Student an appropriate program she would have enrolled the Student, which she understood she could do (T. 628-629), and she asked the members of the CSE at the meeting held on March 20, 2023 if they had [REDACTED]’s report because she felt they needed it to make an appropriate recommendation for the Student’s placement (T. 630).

B. Tuition Reimbursement: A board of education may be required to pay for educational services obtained for a child by the child's parent, (1) if 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 claim (Burlington Sch. Comm v. Mass. Dep’t. of Educ., supra; Florence County Sch. Dist. Four et al. v. Carter, supra; see also Frank G. and Dianne G. v. Board of Educ. of Hyde Park, 459 F.3d 356 (2d Cir. 2006), cert denied, Board of Educ. of Hyde Park Cent. Sch. Dist. v. Frank G., 2007 WL 2982269 (2007). Accordingly, the above-stated three (3) prong analysis (the “Burlington/Carter Criteria”) is applied to determine whether the board of education is required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents. Id.

The inquiry made pursuant to the first prong, may go beyond the appropriateness of the student’s IEP and/or placement and encompass other FAPE claims (see 20 USC §1412(a)(10)(C)(ii); 34 C.F.R. §300.148(a) and (c); Forest Grove v.T.A., 557 U.S. 230 (2009); P.C. Oceanside Union Free Sch. Dist., 818 F. Supp. 2d 516 (E.D.N.Y. 2011); Mr. N.C. v. Bedford Cent. Sch. Dist., 300 F. App’x 11 (2d Cir. 2009). To determine whether the school district made FAPE available to the Student in a timely matter, Rowley’s two-part test, as modified by Endrew F. v. Douglas County Sch. Dist., RE-1, supra, for appropriateness should be applied. Specifically, the hearing officer must determine whether the school district complied with the procedural requirements of the IDEA and whether the IEP is reasonably calculated to enable the child to make appropriate progress in light of her circumstances. Id. “An appropriate educational program therefore begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services.” (SeeApplication of the Dept. of Educ., Appeal No. 07-018 (2007)). Thus, the annual goals and short-term objectives should be consistent with, and relate to, the identified needs and abilities of the student. See Application of a Student with a Disability, Appeal No. 14-078 (2015)(citing 20U.S.C. § 1414(d)(1)(A)(i)(II); 34 CFR § 300.320(a)(2)(i); 8 NYCRR § 200.4(d)(2)(iii)).

While the Second Circuit has emphasized that school districts must comply with a checklist of procedures for developing a student’s IEP, the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA. See A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 (2d Cir. 2009). Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies: (a) impeded the student’s right to a FAPE; (b) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to the student; or (c) caused a deprivation of educational benefits to the student (20 U.S.C. §1415(f)(d)(E)(ii); 34 C.F.R. §300.513(a)(2); 8 NYCRR §200.5(j)(4)(ii)).

As stated above, the District has the statutory burden of persuasion and production in this case, to show that the program and services offered by the District pursuant to the Student’s IEP were adequate or appropriate in order to satisfy Prong I of the Burlington/Carter Criteria. As aforementioned, the Parent argues that the District failed to provide a FAPE because the IEP dated March 20, 2023, “allegedly does not offer appropriate reading and math instruction for the Student, the District engaged in ‘impermissible predetermination of [the Student’s] Programming’, the present levels of performance and annual goals in the March 20, 2023 are ‘deficient’, the program developed pursuant to the March 20, 2023 IEP fails to include assistive technology for the Student and the District failed to conduct an assistive technology evaluation of the Student, despite [REDACTED]’s recommendation that the Student receive assistive technology” (see: Infra).

Preliminarily and before addressing the Parent’s allegations, in this regard, the District is unable to prove in this case that the IEP accurately reflects the Student’s current needs and the goals related to those needs because as the District admits it merely rolled over the present levels of performance and goals contained in the IEP developed by the [REDACTED] School District, where the Student lived before she moved to the District, and therefore did not incorporate any of the input provided by the School’s staff or the Parent at the meeting (Infra).

1. Appropriateness of Reading and Math Program: The Parent maintains that the Student requires a one-on-one reading and math program (see: Infra). In support of that claim [REDACTED] testified in relevant part, that the Student needs “specialized reading, writing and math instruction in a special education classroom, in a very low student: staff ratio, with special education students only. . . (IHO Ex “IV” at ¶23), I understand that at [the School], [the Student] was moved from a small group class in reading and in math to one-to-one instruction tailored to students with learning disabilities moved too quickly for her as compared to the other students. It would be simply unacceptable to place her in a group setting for reading, writing or math, that included non-disabled students” (Id. at ¶24). Moreover, the Special Education Teacher testified that since she started providing one-on-one reading to the Student in January 2023, “[h]er progress began to improve with 1:1 instruction, as I was able to instruct her, individually, at her pace. Thus, she was better able to focus on instruction. I administered the WRMT in March 2023, and the results confirmed that [the Student] was making progress in reading. . .” (Id. at ¶16).

While the Student’s Advisor at the School testified in relevant part, “. . .The CSE indicated that [the Student] would receive reading instruction in a small group, since that is the district’s model; I stressed that [the Student] requires one-to-one instruction in both reading and math, but, due to the district’s “model,” [the Student] would be attending a small group for reading; the district did not describe the group size for math” (IHO Ex “I” at ¶21); “At [the School] [the Student]’s individual reading and math classes are both daily, for 45 minutes, and, in addition, [the student] receives a 45-minute writing class, and a period of English language arts. This is far more intensive than the program descried by the CSE, and, as I have noted, [the Student needs very intensive academic instruction to make progress. . .” (Id. at ¶21) “At the meeting I stressed to the CSE that [the Student] was making progress-slow but steady-in our program after the adjustments we made to increase the intensity of these services” (Id. at ¶24).

Similarly, the Student’s Reading Teacher testified in relevant part:

1. Based on my experience with [the Student], she cannot make progress in a 15:1 class setting. (While I have not personally observed the class at [REDACTED] [REDACTED], during my student teaching at [REDACTED]in [REDACTED], I became familiar with the 15:1 setting). During 2023/24, [the Student] is attending the eighth grade, but, as of the end of the 2022/23 school year, her reading was approximately four grades behind. Her anxiety, due to her self-consciousness about her special needs, would significantly interfere with her learning. In a 15: I, she cannot get the individual attention in reading that she requires.
2. I reviewed the individualized education program (IEP) that resulted from the March 2023 CSE meeting, included as Parent's Exhibit P-B, and concluded that it does not meet [the Student’s] needs, as she requires a smaller class setting than a 15: l ratio, she needs more individualized attention than the IEP mandates, and she must receive daily specialized reading instruction.
3. To the extent that she would be grouped with general education peers for reading, I do not believe that she could make progress in such a setting, as her processing speed is much lower than typically-functioning students. Also, if she attended such a class, she would be very self-conscious, and would struggle with attention, which would further inhibit her ability to make progress.

(IHO Ex. “II” at ¶¶23-25).

Similarly, as well, the Co-Head testified in relevant part:

1. Finally, I reviewed the March 2023 IEP (P-B) and it is not sufficient; it is just a repeat of the September 2022 IEP from [REDACTED] (P-C), it does not contain a sufficient level of support, it does not include specialized reading instruction, it does not provide individualized attention [the Student’s] needs, it does not include necessary assistive technology, it does not have updated present levels of performance, and it does not have appropriate annual goals.
2. While I am not familiar with the [REDACTED] 15:1 program, we found at [REDACTED] that [the Student] struggled in a much smaller group size-three in reading and seven in math. Thus, I do not believe the program recommended at the March 2023 CSE meeting can serve [the Student’s] needs.

(IHO Ex. “III” at ¶¶52-53).

While the Student’s 2022/2023 Report Card, stated in the comments for the Student’s Math B class, “However, I continue to see discrepancies in her independent work versus the work she can do when the teacher heavily scaffolds problems” thus inferring that the Student performs better when receiving one-on-one assistance in math class Parent Ex. “R”).

The witnesses on the District’s direct case made quite clear that the intensive reading and math classes and Reading Lab, could include general education peers, because they were available to both general education and special education students, which [REDACTED]did not recommend (Infra). However, the Student would not immediately receive one-on-one instruction in the intensive reading and math classes. Data would have to be collected supporting such instruction (Infra).

Accordingly, the Parent has substantiated her claim that the District’s Reading and Writing Program, on her IEP are not appropriate by presenting the testimony of School Staff who had been working with the Student for the last almost seven (7) months (from September 2023 to March 2023) of the 2022/2023 school year and educational expert, [REDACTED], because the Student needs one-on-one intensive support in both reading and math, and such classes should not include general education peers^[7].

2. Predetermination: The Parent claims in relevant part the following:

[The School] Staff made clear that, in a small group model, [the Student] failed to make progress. As such, it moved her to a one-on-one for reading and math. [The School] staff stressed that [the Student] requires a one-to-one setting to make any progress at all in these subjects, and cannot do her work without maximally intensive adult support. [The District’s] response was that one-to-one is not [the District’s] model, [the District] employs small-group only. This represents an impermissible predetermination, and a denial of FAPE.

Additionally, the CSE predetermined the instructional methodology, stating that [the Student] would receive Read 180 or Systems 44 because that is what the district has, rather than what [the Student] needs. Staff from [the School] clearly stated that she is making slow but steady progress with the Really Great Reading program at [The School] and provided updated testing to the CSE. This additional predetermination also denies [the Student] a FAPE.

Parent Ex. “A” at p. 5.

The Parent continues to argue in her Closing Brief that the transcript (Parent Ex. “BB”), from the CSE meeting at pp. 22-23, held on March 20, 2023 “unequivocally establishes that the placement decision was based upon district policy, rather than [the Student’s] needs” which “is the definition of any impermissible predetermination, and a denial of FAPE”. IHO Ex. “VIII” at pp. 16-17.

As explained by the court in J.E. v. New York Dep’t of Educ., 229 F. Supp. 3d 223 (S.D.N.Y. 2017):

"As the Supreme Court has emphasized, the IDEA is solicitous of parents' participatory rights," including "an opportunity for meaningful input into all decisions affecting their child's education and the right to seek review of any decisions they think inappropriate." quoting FB v. N.Y.C. Dep't of Educ. , 132 F.Supp.3d 522, 538–39 (S.D.N.Y. 2015) (quoting Honig , 484 U.S. at 311–12, 108 S.Ct. 592 ) (internal quotation mark omitted).

The IDEA requires that parents of a child with a disability be afforded an opportunity to "examine all records relating to such child and to participate in meetings with respect to the identification, evaluation, and educational placement of the child, and the provision of a free appropriate public education to such child, and to obtain an independent educational evaluation of the child." 20 U.S.C. § 1415(b)(1). In this way, predetermination of a child's IEP without meaningful parental input constitutes a procedural violation of Section 1415, which "can rise to the level of a substantive harm, and therefore deprive a child of a [FAPE]...." J.G. ex rel. N.G. v. Kiryas Joel Union Free Sen. Dist. , 777 F.Supp.2d 606, 648 (S.D.N.Y. 2011). Indeed, the "core of the statute" is that the IEP be developed pursuant to a "cooperative process" between the parents and the district. Schafer ex rel. Schafer v. Weast , 546 U.S. 49, 53, 126 S.Ct. 528, 163 L.Ed.2d 387 (2005). Predetermination, therefore, by a district of a child's IEP without meaningful parental input undermines the fundamental goal of the IDEA, which is to give parents a meaningful voice in the educational upbringing of their children. J.G. , 777 F.Supp.2d at 648.

Courts have found that a parent's participation was meaningful under the IDEA where, for example, the parent "participated at the IEP meetings ... and contributed to the Student's final IEP," and where "the DOE responded to the Student's mother's request by amending the Student's IEP," which "incorporated evaluations of the Student conducted by professionals of the Plaintiffs' choosing and the goals those professionals recommended." M.M. ex rel. A.M. v. N.Y.C. Dep't of Educ. , 583 F.Supp.2d 498, 506–07 (S.D.N.Y. 2008); see also S.W. v. N.Y. Dep't of Educ. , 92 F.Supp.3d 143, 157 (S.D.N.Y. 2015) (finding no procedural violation where the "CSE team responded to [the parent's] concerns" by expressly considering and rejecting more placement options advocated for by the parent based on review of relevant evidence in the record of the student's performance). And while the CSE need not adopt a parent's recommendation for any particular aspect of an IEP, as was the case in M.M., "it may not deprive the Parent of meaningful participation by refusing to consider ... the *235 Parent's concerns." E.H. v. N.Y.C. Dep't of Educ., 164 F.Supp.3d 539, 551 (S.D.N.Y. 2016). 235

In addressing claims of predetermination, courts ask whether school district personnel entered a CSE meeting with an "open mind" regarding the programs and services that might be ultimately recommended in a given IEP. See id. at 650 (S.D.N.Y. 2011). "For an IEP to be predetermined, the district must ‘not have an open mind’ to consider alternative programs or services during the meeting." A.P. v. N.Y.C. Dep't of Educ. , No. 14 Civ. 477, 2015 WL 4597545, at *8 (S.D.N.Y. July 30, 2015) (quoting T.P. ex rel S.P. v. Mamaroneck Union Free Sch. Dist. , 554 F.3d 247, 253 (2d Cir. 2009)).

Id. 234-235.

A review of the transcript from the CSE held on March 20, 2023 reveals that even though the Parent’s opinion was solicited, and she appeared to speak freely at the meeting, along with the School’s representatives who supported her opinion regarding the need for e.g., one-to-one instruction for reading and math, the District members did not attend with an “open mind” to consider alternative programs or services during the meeting. For example, instead of discussing the continuum of services, the District representatives only discussed their recommendation for a 15:1^[8] class for the Student because in part, her profile was similar to the other students and the support of a speech language therapist and counselor in the class (Parent Exhibit “BB” at pp. 20, 26, 31, 32). The District representatives also did not appear to take, into account, or indicate that they were familiar with the 15:1 class in the Discovery program the Student attended in her prior school district, or why it was different from what they were recommending, which the Parent reported was not appropriate for the Student (Parent Ex. “BB” at p. 22). Moreover, despite testimony by District witnesses that the Parent was informed at the meeting that intensive reading and math could be provided on an individual basis (e.g. 102-103, 105, 106, 169), and therefore consider and incorporate the Parent’s request, District personnel made it very clear that these programs/curricula could only be provided in a small group and not individually (Parent Ex. “BB” at pp. 17, 23). Finally, the Advisor testified in relevant part, “At the March 2023 meeting, I received the distinct impression that the CSE did not care what [the School] had to say. Rather, [the District] would simply place [the Student] in the setting that it already had, irrespective of her actual needs” (IHO Ex. “I” at ¶22). Thus, the Parent has substantiated this claim.

3. Present Levels of Performance: An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320(a)(1)).

In this regard the Chairperson testified as follows:

Q. My question is how were present levels of performance determined?

A. We heard from [the School] about her engagement in intensive reading and math. There was not a lot of verbal sharing of specific skills. As far as skill development, I didn't have any new information. I also did haven't any updates on her progress towards the goals that were already developed by [REDACTED] [REDACTED].

Q. So when you put the present levels of performance into Parent Exhibit B1 which is the March 20, 2023, IEP, where did you get that information?

A. That was provided from [REDACTED] [REDACTED]School District along with [REDACTED]'s report.

(T. 130). Nonetheless, a review of the transcript from the CSE meeting reveals that there was no discussion regarding the Student’s present levels of performance or corresponding needs on her IEP.

In addition, the Reading Teacher testified in relevant part:

Additionally, the present levels of performance in the March 2023 IEP are not accurate: she was not receiving reading instruction in a small group, but rather was receiving instruction in a one­ to-one setting, during the 2022/23 school year. Ishould also note that the present levels describe her grade level in reading as a Level M, which appears to be from a Fountas & Pinnell assessment; [the School]does not use the F&P as an assessment tool, so such information did not come from our school. Thus, the statement that she was at a Level M is, at very least, outdated.

(IHO Ex. “II” at ¶26). While the Co-Head testified that the IEP fails to contain appropriate present levels of performance (IHO Ex. “III” at ¶52).

Finally, as aforementioned, the Student’s present levels of performance are the same on the Student’s prior IEP from the [REDACTED] City School District at Parent Ex. “B” and the March 20, 2023, clearly demonstrating that there were no changes made to them to reflect the input provided by the School’s staff and the Parent at the CSE. Thus, the IEP did not accurately reflect the Student’s “present” levels of performance as reported by the School and the Parent, at the CSE meeting Accordingly, the Parent has substantiated this claim.

4. Annual Goals:

An IEP must include a written statement of measurable annual goals, including academic and functional goals designed to meet the student's needs that result from the student's disability to enable the student to be involved in and make progress in the general education curriculum; and meet each of the student's other educational needs that result from the student's disability (see 20 U.S.C. § 1414(d)(1)(A)(i)(II); 34 CFR 300.320)(2)(i); 8 NYCRR 200.4(d)(2)(iii)). Each annual goal shall include the evaluative criteria, evaluation procedures and schedules to be used to measure progress toward meeting the annual goal during the period beginning with placement and ending with the next scheduled review by the committee (8 NYCRR 200.4(d)(2)(iii)(b); see 20 U.S.C. § 1414(d)(1)(A)(i)(III); 34 CFR 300.320(a)(3)).

However, the IDEA does not require that a district create a specific number of goals for each of a student's deficits, and the failure to create a specific annual goal does not necessarily rise to the level of a denial of FAPE; rather, a determination must be made as to whether the IEP, as a whole, contained sufficient goals to address the student's areas of need. (J.L. v. New York City Dep't of Educ., 2013 WL 625064, at *13 (S.D.N.Y. Feb. 20, 2013); see C.M. v. New York City Dep't of Educ., 2017 WL 607579, at *20-*21 (S.D.N.Y. Feb. 14, 2017)).

A review of the transcript from the CSE held on March 20, 2023 reveals that there was no discussion regarding the Student’s goals on the resulting IEP (Parent Ex. “BB”). Similarly, the District elicited the following testimony about the goals on this IEP:

Q. Okay. And similarly with regard to Parent Exhibit B1 which is the IEP from March 20, 2023, how were the goals created?

A. Since we didn't have any new updates towards her progress for the goals, we left those. Knowing that if she had been with us, we would have looked at those and possibly amended or had another meeting to determine goals for the reminder of the year which was roughly three months.

Q. Did the [the School’s] people who attended the CSE on March 2023 provide you with any suggestions with regard to goals for [the Student]?

A. Not specific to that. They did speak to some of her challenges with editing on writing. So that goal certainly reflected what she was doing along with some fluency needs. So there was a goal that addressed that as well^[9].

(T. 130). The Advisor also testified that the goals were not discussed at the meeting (Infra), and the Co-Head testified that the goals are not appropriate (IHO Ex. “III” at ¶52).

Moreover, this IEP appears to identify the following areas of need for the Student, which appears to have corresponding goals for some but not all of these needs: nonverbal abilities, math problem solving, memory and processing speed, decoding, and encoding skills, spelling, writing, and reading (Parent Ex. “BB” at p. 7). Even though every area of need does not have to be addressed with a goal, the District admitted that they left the goals from the Student’s prior IEP without considering her present levels of performance and corresponding needs.

Finally, as aforementioned, the goals on the Student’s prior IEP from [REDACTED] [REDACTED]School District are the same as the ones contained on the March 20, 2023 IEP (Parent Ex. “B” and “C”). Accordingly, the annual goals on the Student’s IEP cannot be consistent with and relate to the Student’s identified needs at the present time, because, as aforementioned, instead of being updated, they were merely carried over from the IEP from the previous school year, and school district where the Student was enrolled. Thus, the goals are neither adequate nor appropriate for the Student.

5. Assistive Technology: Under the IDEA, a CSE may be required to consider special factors in the development of a student's IEP. One of the special factors that a CSE must consider is whether the student "requires assistive technology devices and services, including whether the use of school-purchased assistive technology devices is required to be used in the student's home or in other settings in order for the student to receive a [FAPE]" (8 NYCRR 200.4(d)(3)(v); see 20 U.S.C. § 1414(d)(3)(B)(v); 34 CFR 300.324(a)(2)(v); see also: Educ. Law § 4401(2)(a)). Accordingly, the failure to recommend specific assistive technology devices and services rises to the level of a denial of a FAPE only if such devices and services are required for the student to access her educational program (see, e.g., Application of the Bd. of Educ., Appeal No. 13-214; Application of a Student with a Disability, Appeal No. 11-121).

Even though the Chairperson indicated she had received [REDACTED]’s Report which included a recommendation the Student receive assistive technology, it was not discussed at the CSE meeting held on March 20, 2023 (see: Infra; Parent Ex. “BB”; T. 180, 181). Nonetheless, other than [REDACTED]’s recommendation, and the Special Education teacher’s testimony that assistive technology is important for the Student to access her curriculum because she is significantly below her peers in reading, the Parent has failed to proffer any testimony or evidence supporting this claim, or to establish that this violation impeded the Student's right to a FAPE, hindered the parent's opportunity to participate in the decision-making process, or otherwise deprived the student of educational benefits (see 20 U.S.C. § 1415(f)(3)(E)(ii); 34 CFR 300.513(a)(2); 8 NYCRR 200.5(j)(4)(ii)). Accordingly, the Parent has failed to substantiate this claim.

6. Assistive Technology Evaluation: As to the Parent’s contention that the District's failure to perform an assistive technology evaluation resulted in a denial of FAPE, this argument is not supported by the evidence in the hearing record. Even if the District's failure to recommend/conduct an assistive technology evaluation constituted a procedural violation, the Parent fails to point to any facts or evidence, (other than [REDACTED]’s recommendation the Student receive such services, or above-cited testimony by the Special Education teacher), to establish that this violation impeded the Student's right to a FAPE, hindered the parent's opportunity to participate in the decision-making process, or otherwise deprived the student of educational benefits (see 20 U.S.C. § 1415(f)(3)(E)(ii); 34 CFR 300.513(a)(2); 8 NYCRR 200.5(j)(4)(ii)).

Due to the fact that at the CSE held on March 20, 2023, the District predetermined the Student’s program, failed to develop appropriate present levels of performance, (based upon the input from the School’s staff and the Parent), at the meeting, and therefore appropriate goals on the resulting IEP, the District impeded the Student’s right to a FAPE, significantly impeded the Parent’s opportunity to participate in the decision-making process regarding the provision of a FAPE to the Student, and if the Student had attended the District’s program, would have potentially caused a deprivation of education benefits to the Student. Accordingly, the District has failed to satisfy the first prong of the Burlington/Carter criteria, causing the burden to shift to the Parents to prove that the unilateral placement was appropriate or proper. Burlington Sch. Comm., 471 U.S. at 369 and 370; see also Florence County Sch. Dist. Four et al. v. Carter, 510 U.S. at 15. In order to meet this burden, the Parents must establish, by a preponderance of the evidence, that the unilateral placement provides “educational instruction specifically designed to meet the unique needs of the student” (Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d. Cir. 2007)). In this regard, the court in Gagliardo explained:

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.

Id. at 112 (quoting, Frank G., 459 F.3d at 364-65).

However, the private school placement “need not meet the IDEA’s definition of a free and appropriate public education” or “state education standards or requirements” (Frank G. v. Board of Educ., at 364). Moreover, the private placement need not provide certified special education teachers or an IEP. Parental placements are not subject to the same mainstreaming requirements as a school district placement. The private school placement must be reasonably calculated to enable the child to receive educational benefits, and must be likely to produce progress, not regression. Id.

As more fully explained below, the Parent offered substantial testimony demonstrating how the School used information regarding the Student’s functioning levels to determine her placement e.g., in math and reading, how the School changed the Student’s placement in e.g., math and reading, when it determined that the larger 3:1 group was not addressing the Student’s needs, and she was struggling to keep up with the other students in the class, the reading programs used by the School were evidence based and addressed her areas of need in fluency, comprehension and vocabulary, and the access she had to one-on-one assistance in her classes because of her difficulty working independently,

The Co-Head of the School testified regarding its application process (IHO Ex. “III” at ¶¶22, 23, 25), and how the School administers the Woodcock Reading Mastery Test (WMRT) to determine every student’s reading level upon admission, and placement in their reading program (Id. at ¶27). She also testified that the School received records from the [REDACTED] School, where she attended school, instead of the [REDACTED] [REDACTED] School (Id. at ¶24), the School used the Student’s IEP and information from her most recent evaluations to determine her math placement, because the School uses a developmental approach to math, meaning that “the students are placed based upon their skills level, rather than upon their age or grade” (Id. at ¶28); how initially the Student was placed in a small-group reading program with two (2) other students; however since the Student was unable to make progress at the same rate as the other students she was switched to a one-to-one reading program in December 2022 (Id. at ¶29) (see also: Advisor’s Affidavit at ¶¶18, 19); the School uses the Really Great Reading program’s Boost (“Phonics Boost”), which is an Orton-Gillingham, evidence based program, and that in addition to this program the Student was enrolled in Read Naturally, to work on her fluency, comprehension and vocabulary (Id. at ¶¶30, 31), in addition to the 45-minute daily reading class, the Student also received a 45-minute daily writing and English Language Arts (“ELA”) classes (Id. at ¶32) (see also: Advisor’s Affidavit at IHO “I” at ¶22), since the Student struggled to keep up with the small group’s progress in her math class, in March 2023, she was switched to one-on-one instruction and with the one-to-one instruction in reading and math, her progress has improved, “slow but steady” (Id. at ¶¶33, 34) (see also: Advisor’s Affidavit at IHO “I” at ¶20), while in her social studies, science, ELA and writing class, she had access to a teach assistant to provide one-to-one assistance when necessary (Id. at ¶35); and even though the Student does not have any behavioral concerns, she requires a “great deal of extra time to process information”, “adult assistance in the classroom and in completing homework assignments”, frequent checks for understanding, and benefited from visuals to accompany language in her classes that were all provided at the School (Id. at ¶37) (see also the Advisor’s Affidavit at IHO “I” at ¶¶12, 13, 14, 16).

While the Reading Teacher testified how she assessed the Student’s spelling and phonemic awareness with the RGR’s assessment before she started in the program, to determine her reading level, along with the WRMT conducted in September 2022 (IHO Ex. “II” at ¶7), how she worked with the Student forty-five (45) minutes a day and the programs she used (Id. at ¶8), the Student initially attended a reading class comprised of three (3) students, until the end of December 2022, but because the Student needed a more individualized approach (and why), it caused her to meet with and inform the School’s reading team of this need in December 2022 (Id. at ¶¶9 – 13, 15), resulting in her providing individual reading instruction starting in January 2023, causing her progress to start to improve which was supported by the Student’s results on the WRMT administered in March 2023 (Id. at ¶16), how the Student’s progress in reading was assessed and made, during the 2022/2023 school year (Id. at ¶¶17-18), how she built a trusting relationship with the Student (Id. at ¶20), and how moving the Student from the 3:1 to the 1:1 setting in reading, removed the Student’s concern about being judged by other students (Id. at ¶21).

In addition, the Report Card for 2022-2023 Q4, provides the following comments regarding the Student’s performance in her core subjects – ELA, Math B, Reading, Science 7, Social Studies 7, and Writing:

[The Student] has come into her own! She started off this year hesitant, unsure, and unfocused. As the year progressed she found her groove and no longer held ack. She focused on her work, grew in confidence and was willing to take risks. I hope that 8^th grade is an amazing year for [the Student] as she continues to find her amazing strengths and share her perspectives [ELA in which she received the following grades: Q1: 88, Q2: 91, Q3: 81, Q4: 94].

[The Student] continues to put forward her best effort in math class. However, I continue to see discrepancies in her independent work versus the work she can do when the teacher heavily scaffolds problems. . . [Math B in which she received the following grades: Q1: 82, Q2: 83, Q3: 86, Q4: 86].

Throughout quarter 4 we continue to review phonics skills and strategies. Our focus was on applying prior learning to decoding multi-syllable words. [The Student] made consistent efforts to recall and apply previous knowledge as she encountered new syllable types and attempted to decode unfamiliar multi-syllable words. This proved challenging, therefore, we devoted the last several weeks of the year to reinforcing skills using preferred topics and text. [The Student] expressed interest in Helen Keller and she selected a book on Keller’s life story. As she read, we selected specific vocabulary from the text and applied strategies to reinforce a working understanding of decoding. This was a successful end-of-year unit as it reinforced both decoding and reading comprehension. On several occasions [the Student] has expressed personal concerns about her reading challenges. I have commended her for her perseverance and her desire to ‘just learn more”. . . [Reading in which she received the following grades: Q1: 86, Q2: 99, Q3: 96, Q4: 98].

[There are no relevant comments for Science 7, except the Student received the following grades: Q1: 85, Q2: 89, Q3: 84, Q4: 77.]

[There are no relevant comments for Social Studies 7, except the Student received the following grades: Q1: 86, Q2: 79, Q3: 75, Q4: 76.]

. . . [the Student] grew so much in both her writing ability and her confidence when it comes to writing [Writing in which she received the following grades: Q1: 90, Q2: 90, Q3: 91, Q4: 91].

(Parent Ex. “R”).

While the Progress Notes for the Student’s IEP, June 2023, reflect that she met her two (2) reading goals with 90% success over 10 (ten) weeks^[10], recorded observations every four (4) weeks, and met the criteria for her first math goal in eleven (11) out of thirty-two (32) trials or a rate of 34% accuracy and the second goal in thirty (30) out of forty-one (41) trials or at a rate of 92% (Parent Ex. “S” at pp. 1-2). While, for Writing Goal 1, the Student “continues to struggle with identifying and composing complete sentences. With repeated practice she still needs teacher assistance to figure out where to place punctuation and what makes a sentence complete. She needs the checklists to help her focus on the strategy which is very helpful. She is able to compose a five (5) paragraph independently, but it lacks punctuation and sentence structure. She is meeting this goal at 54%”, and for Writing Goal 2, the Student “continues to struggle with identifying and composing compete sentences. With repeated practice she still needs teacher assistance to figure out where to place punctuation and what makes a sentence complete. She needs the checklist to help her focus on the strategy which is very helpful. She is able to compose a 5 sentence paragraph independently, but it lacks punctuation and sentence structure. She is meeting this goal at 58%” (Id.). Moreover, due to the fact that the Advisor/Math/Reading/Social Studies/Science Summary is undated and therefore unclear as to what time period this is referring to. Accordingly, it is unclear as to whether or not it is relevant to these proceedings (Parent Ex. “U”).

Notably, the Student’s Attendance summary states that out of a total of one thousand three hundred and thirty-six (1,336) classes for the 2022/2023 school year the Student had two hundred and six (206) excused absences or 15.4% of the total classes and seventy-six (76)^[11] unexcused absences or 5.7% of the total classes, for a total of wo hundred and eighty-two (282) (206 + 76) or 21.1% of the total classes. In addition, the Student had a total of six (6) unexcused tardies and two (2) excused tardies. However, since there was no testimony or further evidence regarding the Student’s attendance, it is unclear how if at all the School is addressing this matter, and/or how this is impacting on the Student’s progress at the School.

Finally, besides [REDACTED]recommending the School’s program, the Student’s program at the School appears to comply with a significant portion of [REDACTED]’s recommendations. For example, even though [REDACTED] recommended the School’s 12:1:1 class, in which the Student is enrolled, she does not receive direct and indirect speech and language services on a weekly basis^[12], and school-based counseling^[13], and assistive technology services^[14] which were also recommended by [REDACTED] (Infra). Nonetheless, when looking at “the totality of the circumstances” the Parent demonstrated that the School provides educational instruction specially designed to meet all of the unique needs of the Student, supported by such services as are necessary to permit her to benefit from instruction. For example, in addition to the testimony and evidence referenced above:

1. When the Student failed to understand concepts behind word problems in her math class, the Advisor would bring out manipulatives to help her understand the problem (IHO Ex. “I” at ¶13)
2. The teaching assistant would sit with the Student in writing class to provide additional support because she could not do the work independently and the other teachers reported at weekly team meetings that she was getting a lot of 1:1 support in the classroom from either the teacher or teaching assistant (Id. at ¶14).
3. The School changed the Student’s reading class from 3:1 to 1:1 in the middle of the school year because she was not able to keep up with the other students which resulted in the Student demonstrating progress (Id. at ¶¶18, 19, 34).
4. Her processing speed and listening comprehension skills were weaker than the two other students in the reading class, took a long time to digest information, struggled to identify sounds, had poor phonemic memory and awareness resulting in her needing at least twice as much time as the other two students to process the information provided. This caused the Reading Teacher to recognize that an individual setting would enable her to provide the Student with the time she needed to process the information being presented and being better able to engage in the tasks without worrying that other students might be judging her (IHO Ex. “II” at ¶¶10-12).
5. Once the Student was moved into a 1:1 reading class (which was also supported by the assessments that the School conducted upon the Student entering their program), causing her progress to improve which was supported by the WMRT administered in March 2023 (Id. at ¶16-18).
6. By moving her to the 1:1 Reading class this alleviate the Student’s concern about other students judging her due to her slow processing of information (Id. at ¶21).
7. The School personalizes an education program for each student (IHO Ex. “III”at ¶12).
8. The School used the Student’s IEP and information from “her most recent evaluations” to determine her math placement, which was changed in March 2023 (Id. at ¶28; Infra).
9. Why the Student was changed from a 3:1 to a 1:1 reading class (Id. at ¶29).
10. In addition to the Really Great Reading program Boost, which is an evidence based Ortin-Gillingham based program, the Student was enrolled in Read Naturally to work on her fluency, comprehension, and vocabulary (Id. at ¶¶30-31).
11. Since the Student struggled to keep up with the group’s progress in math class, she was switched to a 1:1 math class in March 2023, resulting in improvement (Id. at ¶35).
12. How the School addresses the great deal of extra time the Student needs to process information in the classroom and in completing homework assignments, e.g., frequent checks for understanding, visuals, etc. (Id. at ¶37).
13. The grades contained in the Student’s 2022/2023 year-end report card are all in the 80’s and above, resulting in a G.P.A. of 86.33 and “Honor Roll – Effort”, while the narrative reports progress in ELA, Reading and Writing, (with the Math teacher continuing to see discrepancies in her independent work vs. work completed with assistance) (Infra).
14. The Student’s social-emotional needs were met at the School (Infra).

is providing is pro

The determination of whether, or not equitable factors support a parent’s claim for tuition reimbursement hinges, in large part, on whether, the parent cooperated with the CSE. The District contends that since the Parent failed to provide notice of their unilateral placement of the Student at the School, before the March 20, 2023 CSE meeting, when the Student was already attending the School, the District did not have, the opportunity to create a program before she was removed from the District (IHO Ex. “VII” at p. 19).

Reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to their removal of the student from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense" (20 U.S.C. § 1412(a)(10)(C([iii)(I); see 34 CFR 300.148(d)(1)). This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools" (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 (1st Cir. 2004)). As stated by the Court in N.R. v. Dep’t of Educ., 07 CV 9648 (S.D.N.Y. 2009):

Where, as here, a student is not provided with a FAPE and his private placement is appropriate, "the district court enjoys broad discretion in considering equitable factors relevant to fashioning relief." Gagliardo, at 112 (citation omitted). A "major consideration in deciding whether the third factor is satisfied is whether the parents have cooperated with the City throughout the process to ensure that their child receives a FAPE." Bettinger., at *6. To that end, "courts have held uniformly that reimbursement is barred where parents unilaterally arrange for private educational services without ever notifying the school board of their dissatisfaction with their child's IEP." M.C. ex Rel. Mrs. C v. Voluntown Bd. of Educ., 226 F.3d 60, 68 (2d Cir. 2000).

However, in the instant case there is no evidence of the District’s creation of an IEP before March 20, 2023, despite the fact that the Student moved into the District on or around December 8, 2022 (Parent Ex. “W”). Thus, there was no IEP with which the Parent could express her dissatisfaction before placing the Student in the School and the Parent is not barred from receiving tuition reimbursement.

The District also argues that the Parent’s claim for tuition reimbursement should be denied because the “Parent’s actions were unreasonable and uncooperative in that she obstructed the District’s ability to have necessary meeting” (citation omitted) (IHO Ex. VII at p. 20). In this regard the District first argues that the Parent asked the Advisor to record the CSE meeting held on March 20, 2023, while neither the Parent nor the Advisor informed the District of such recording (Id.). However, the District fails to cite any authority for this premise, and this IHO is unable to find same.

Next the District claims the Parent was “unreasonable and uncooperative” because the Advisor and the Parent failed to share information regarding the Student prior to or at the CSE meeting “that was important for the CSE to consider when recommending an appropriate placement” (Id. at p. 21). However, a review of the transcript from the CSE meeting reveals that the Parent and Advisor answered questions about the Student every time they were asked, and Ms. Gul testified that one of the reasons that she did not share certain information is because she was not asked (Parent Ex. “BB” and Infra). Most importantly, the District has cited only general authority and nothing specifically addressing/supporting their contention that tuition reimbursement should be denied specifically because this information was not shared.

Based on the foregoing, this IHO finds that the Parent has satisfied the third prong of the Burlington/Carter Criteria for tuition reimbursement. Having met all three (3) of the Burlington/Carter Criteria, the Parents are entitled to reimbursement for the cost of the Student’s tuition at the School for the period of March 20, 2023 to the end of the 2022/2023 school year, e.g., June 30, 2023, totaling FIFTEEN THOUSAND SIX-HUNDRED AND FIFTY-NINE DOLLARS ($15,659.00) (IHO Ex. “V” at ¶17). However, the Parent was unable to explain how she arrived at that exact amount (Infra). The record establishes that the Student’s total annual tuition at the School for the 2022/2023 school year is FORTY THOUSAND EIGHT HUNDRED AND FIFTY-SIX DOLLARS ($40,856.00), of which the [REDACTED] [REDACTED] School District paid a total of amount of TEN THOUSAND FOUR HUNDRED AND FIVE DOLLARS AND FIFTY-TWO CENTS ($10,405.52) (which was computed by subtracting from the total tuition of THIRTEEN THOUSAND TWO HUNDRED AND SEVENTY-EIGHT DOLLARS AND TWENTY CENTS ($13,278.20), the Student’s total tuition at the School for the period of September 7, 2022 to December 8, 2022, TWO THOUSAND EIGHT HUNDRED AND SEVENTY-TWO DOLLARS AND SIXTY-EIGHT CENTS ($2,872.68), which reflects 50% of the [REDACTED] School District’s transportation cost for the Student incurred between December 2022 and June 2023)) (see: Parent Ex. “W”, “X”). Since it is unclear as to how the Parent arrived at the $15,659.00 as the amount of tuition she is seeking in this case, in order for the District to pay this amount, she will have to submit an invoice or some other document from the School proving that this is the correct amount of the Student’s tuition at the School for the period of March 20, 2023 up to on or around June 30, 2023.^[15]

The remaining issue is whether this IHO can order direct payment to the School of the Student’s tuition for the 2022/2023 school year. In this regard the Parent testified in relevant part:

I work at a restaurant owned by my family, and am unable to afford to pay the tuition at [the School] up front. I have not paid any of the tuition, so the full balance set forth in the [School’s] tuition contract (Parent Exhibit P-X) is owed, minus the amount agreed by [REDACTED], which covers the period through December 8, 2022. As such, I request prospective payment prorated for the period March 20, 2023 through the end of the year. That amount is, $15,659.00.

(IHO Ex. “V” at ¶17). The Parent further testified that she and her husband each made less than $25,000 in 2022, for a combined income of less than $50,000 (T. 624-625).

The Second Circuit Court of Appeals has held that a direct payment remedy is an appropriate form of relief in some circumstances, and that "[i]ndeed, where the equities call for it, direct payment fits comfortably within the Burlington–Carter framework" (E.M. v. New York City Dep't of Educ., 758 F.3d 442, 453 (2d Cir. 2014); see also Mr. and Mrs. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 430 (S.D.N.Y. 2011) (finding it appropriate to order a school district to make retroactive tuition payment directly to a private school where equitable considerations favor an award of the costs of private school tuition but the parents, although legally obligated to make tuition payments, have not done so due to a lack of financial resources)).

The Parents’ Contract with the School provides in relevant part regarding their obligation to pay the Student’s tuition:

Tuition and Related Services

* *. *

3. Tuition: In accepting this offer of admission, the Parent agrees to be responsible for and to pay the full annual tuition of $40,856 as set by [the School] board of Directors and to accept the terms and conditions herein. . .

* *. *

4. Payment Options: Parent may elect to pay the full tuition amount in any one of the following ways:

* *. *

d. Request for Tuition Payment Abeyance or Reduction Pending Due Process: Parent may request that the requirement to make tuition payments be held in abeyance and/or that the tuition payment amount(s) be temporarily reduced pending the resolution of a Due Process complaint filed pursuant to 8 N.Y.C.R.R. 200.5 Requests shall be considered at the sole discretion of the [School]. . . Nothing in this paragraph shall be construed to release the Parent from the obligations outlined in 5(a) below.

5. Payment Terms

a. Parent Obligation: It is understood and agreed that the Student’s enrollment is for the full 2022-2023 school year, and the obligation to pay tuition is unconditional and cannot be apportioned or mitigated except as expressly provided for herein. In the event the Student is absent or suspended from school, [the School] will not reduce, refund, or otherwise waive the tuition obligations herein, except as outlined in Sections 7 and 8 below.

* *. *

c. Failure to Secure Public Tuition Funding: Parent understands that Parent may seek public funding from Student’s local district to pay for Student’s tuition due to [the School] for the 2022-2023 school year by asserting Student’s due process rights. In the event Parent exercises Student’s due process rights and is denied all or part of the tuition funding from the local school district for the tuition due under this Enrollment Contract by a final administrative or judicial decision resolving the claim for such funding, Parent understands that Parent remains responsible to pay the remaining tuition and any other fees due and owing to [the School], if any, under this Enrollment contract.

(Parent Ex. “X”) (Emphasis added).

As in the E.M. case, the Parents are legally obligated to pay the School for the Student’s tuition for the 2022/2023 school year in the event that ultimately the School is not paid, for the time period the Student has attended the School (Id.). Thus, the Parents incurred a financial obligation for the Student’s tuition, which supports an award of reimbursement relief. Moreover, the Parents have provided testimony and evidence demonstrating that they do not have the financial resources to pay for such program. In this regard, the Parent testified that they are unable to pay the Student’s tuition at the School based upon their combined yearly income of less than FIFTY THOUSAND DOLLARS ($50,000) in 2022. (Infra). Accordingly, the Parents are entitled to an order direct payment to the School for the Student’s tuition for the 2023/2024 school year.

E. Attorneys’ Fees:

The DPC requests in part that this IHO award attorneys’ fees (Parent Ex. “A” at p. 6). It is well settled that the IDEA does not authorize an administrative officer to award attorneys' fees or other costs to the prevailing party, and entitlement, if any, to costs must be determined by a court of competent jurisdiction (see 20 U.S.C. § 1415(i)(3)(B); Murphy v. Arlington Cent. Sch. Dist. Board of Educ., 402 F.3d 332 (2d Cir. 2005); see also B.C. v. Colton-Pierrepont Cent. Sch. Dist., 2009 WL 4893639, at *2 (2d Cir. 2009). Accordingly, such requested award is denied.

F. Additional/Compensatory Services:

Finally, the Parent requests, “additional (compensatory) academic and related services to compensate for the past denial of FAPE”.

Ordering compensatory education is not automatic or a matter of quid pro quo, where a student gets one hour for every hour missed of compensatory time. Accordingly, an order of compensatory education is an equitable remedy available to a hearing officer or judge. Rather than being awarded pursuant to a formula, the ultimate award must be fact-specific and, to accomplish IDEA’s purposes, the ultimate award must be reasonably calculated to provide the educational benefits that would have accrued from the special education services the school district should have supplied in the first place. Reid v. District of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005) (Reid was cited by the second circuit in Newington, in reaching its conclusion that compensatory education is an option. Newington at 123). Notably, Reid, supra, emphasizes that compensatory services are equitable relief; they are not a contractual remedy. Reid at 123.

There are primarily two competing approaches utilized in fashioning a compensatory education award, namely the “quantitative” approach authored by the Third Circuit^[16], and the “qualitative approach relied upon by the Sixth and D.C. Circuits^[17]. Although compensatory is a form of equitable relief, at times courts have used a quantitative method to calculate the amount, of services missed so that the services can be made up through compensatory education. M.C. on behalf of J.C. v. Cent. Reg’l Sch. Dist., 81 F.3d 389 (3d Cir. 1996); Manchester Sch. Dist. v. Christopher B., 807 F. Supp. 860 (D.N.H. 1992). However, neither the Second Circuit^[18] nor the New York courts^[19] have taken a position on a preferred approach. Accordingly, Hearing Officers have discretion as to which approach to apply.

No matter which approach, when determining the appropriate equitable remedy for compensatory services, the IHO may go back in time for many years. Thus, in G.L. v. Ligonier Valley Sch. Dist. Auth., 802 F.3d 601 (3rd Cir. 2015), the court held that equitable relief could go back for many years in cases of compensatory education because Moreover, the IDEA’s two year “statute of limitations does not apply to limit the permissible periods of compensatory educational awards.” Id at 610. Among the lower court cases cited by G.L. to support this proposition was the New York case of K.H. v. New York City Dep’t. of Educ., No. 12-CV-1680, 63 IDELR 295 (E.D.N.Y. 2014).

Moreover, when a school district deprives a child with a disability of a FAPE in violation of the IDEA a court or hearing officer fashioning appropriate relief may order compensatory education (20 U.S.C. 1415(i)(2)(C)(iii); 34 C.F.R. 300.516(c)(3); Sch. Com. of Burlington v. Dep’t. of Educ., 41 U.S. 359, (1985). Generally, said denial must be more than de minimis Catalan v. Dist. of Columbia, 478 F.Supp.2d 73, 75 (D.D.C. 2007) (court found no evidence that the handful of missed speech therapy sessions added up to a denial of FAPE) quoting Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 348-349 (5^th Cir. 2000), cert. denied, 531 U.S. 815 (2000). As explained by the Court in M.C.:

a school district that knows or should know that a child has an inappropriate IEP or is not receiving more than a de minimis educational benefit must correct the situation. If it fails to do so, a disabled child is entitled to compensatory education for a period equal to the period of deprivation, but excluding the time reasonably required for the school district to rectify the problem. We believe that this formula harmonizes the interests of the child, who is entitled to a free appropriate education under IDEA, with those of the school district, to whom special education and compensatory education is quite costly.

Id. at 397.

Both the Parent and the District failed to address this issue on their direct case or rebuttal or through the documents they submitted into evidence. Accordingly, it is unclear as to what would be an appropriate award, if any of compensatory services due to the District’s denial of FAPE.

Moreover, the Student never attended the District’s program during the 2022/2023, as her Parent kept her enrolled in the School. This is important, because some courts have held that compensatory education is not available as an additional or alternative remedy when reimbursement for the costs of a unilateral placement is also at issue for the same time period (see D.F. v. Collingswood Borough Bd. of Educ., 694 F.3d 488, 498 (3d Cir. 2012) (holding that "[b]ecause compensatory education is at issue only when tuition reimbursement is not, it is implicated only where parents could not afford to 'front' the costs of a child's education"); P.P. v. West Chester Area Sch. Dist., 585 F.3d 727, 739 (3d Cir. 2009) (holding that "compensatory education is not an available remedy when a student has been unilaterally enrolled in private school"); but see I.T. v. Dep't of Educ., State of Hawaii, 2013 WL 6665459, at *7-*8 (D. Haw. 2013) [finding that the student was entitled to compensatory education for services the student received at the nonpublic school)).

The Second Circuit Court of Appeals has not directly addressed this question and, generally, appears to have adopted a broader reading of the purposes of compensatory education than e.g., the Third Circuit (see: Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 456-57 (2d Cir. 2015) (treating compensatory education as an available equitable remedy for a denial of a FAPE so as to effectuate the purposes of the IDEA and put a student in the same position he or she would have been in had the denial of a FAPE not occurred). Accordingly, the Second Circuit's approach to compensatory education may allow an award of compensatory education in certain circumstances, e.g., student is unilaterally placed but the parent's request for tuition reimbursement is denied). On the other hand, if tuition reimbursement is granted, as in the instant case, because the School is providing instruction specially designed to meet the Student's unique needs, it seems illogical and inconsistent to also award compensatory education to fill the “gaps” in the services provided by the School, since no such gaps have been articulated or found. Accordingly, the Parent’s request for compensatory services is denied.

ORDER

IT IS HEREBY ORDERED that no later than thirty (30) days after this Decision and/or the Parent has provided to the District an invoice or other official document from the School, evidencing the amount of tuition owed for the Student is FIFTEEN THOUSAND SIX HUNDRED AND FIFTY-NINE DOLLARS ($15,659.00) for the period of March 20, 2023 through on or about June 30, 2023, whichever is later, the District shall pay directly to the School that portion of the Student’s tuition at the School for the 2022/2023 school year totaling FIFTEEN THOUSAND SIX HUNDRED AND FIFTY-NINE DOLLARS ($15,659.00); and

IT IS FURTHER ORDERED that the Parent’s request for an award of attorneys’ fees is denied; and

IT IS FURTHER ORDERED that the Parent’s request for an award of compensatory services is denied.

May 7, 2024

Randy Glasser

Randy Glasser, Esq.

Impartial Hearing Officer

NAMES AND TITLES OF APPEARANCES

FOR HEARING HELD ONNOVEMBER 13, 2023

DISTRICT

REDACTED], Esq., [REDACTED]

[REDACTED], Director of Pupil Personnel Services, District

[REDACTED], CPSE and CSE Chairperson, District

[REDACTED], Special Education Teacher

PARENT

[REDACTED], Esq., [REDACTED]

[REDACTED], Esq., [REDACTED]

Parent

FOR HEARING HELD ONNOVEMBER 20, 2023

DISTRICT

REDACTED], Esq., [REDACTED]

[REDACTED], Director of Pupil Personnel Services, District

[REDACTED], Special Education Teacher, District

[REDACTED], School Psychologist, District

PARENT

[REDACTED], Esq., [REDACTED]

[REDACTED], Esq., [REDACTED]

Parent

FOR HEARING HELD ONDECEMBER 4, 2023

DISTRICT

REDACTED], Esq., [REDACTED]

[REDACTED], Director of Pupil Personnel Services, District

[REDACTED], Teacher, the District

PARENT

[REDACTED], Esq., [REDACTED]

[REDACTED], Esq., [REDACTED]

[REDACTED], Reading Teacher, the School

[REDACTED], Special Education Teacher, the School

[REDACTED], Co-Head of the School

FOR HEARING HELD ONJANUARY 8, 2024

DISTRICT

[REDACTED], Esq., [REDACTED]

[REDACTED], Director of Pupil Personnel Services, District

PARENT

[REDACTED], Esq., [REDACTED]

[REDACTED], Esq., [REDACTED]

[REDACTED], Ph.D.

FOR HEARING HELD ONFEBRUARY 12, 2024

DISTRICT

REDACTED], Esq., [REDACTED]

[REDACTED], Director of Pupil Personnel Services, District

[REDACTED], School Psychologist, District

PARENT

[REDACTED], Esq., [REDACTED]

[REDACTED], Esq., [REDACTED]

Parent

DOCUMENTS ENTERED INTO THE RECORD

IHO Exhibits

I. Affidavit, 12/4/2023, 4 pages

II. Affidavit, 12/4/2023, 6 pages

III. Affidavit, 12/4/2023, 7 pages

IV. Affidavit, 1/8/2024, 6 pages

V. Affidavit, 2/12/2024, 4 pages

VI. Interim Decision, 2/22/2024, 10 pages

VII District’s Post Hearing Brief, 3/11/2024, 23 pages

VIII. Parent’s Closing Brief, 3/11/2024, 23 pages

DOE Exhibits

1. Due Process Complaint, 6/15/2023, 6 pages

2. Response to Due Process Complaint, 6/22/2023, 1 page

3. IEP, 9/1/2022, 12 pages

4. CSE Meeting Notice, 2/22/2023, 2 pages

5. CSE Meeting Notice, 3/6/2023, 2 pages

6. Meeting Minutes and Attendance from CSE meeting, 3/13/2023, 2 pages

7. IEP, 3/20/2023, 12 pages

8. Prior Written Notice, 3/13/2023, 2 pages

9. Psychological Evaluation, 12/6/2021, 8 pages

10. Independent Educational Evaluation, 8/31/2022, 23 pages

11. Woodcock Reading Mastery Test Report, 3/13/2023, 6 pages

Parent Exhibits

A. Due Process Complaint, 6/15/2023, 6 pages

B. IEP, 3/20/2023, 12 pages

C. IEP, 9/1/2022, 12 pages

D. Prior Written Notice, 3/13/2023, 2 pages

E. CSE meeting for 3/20/2023 meeting:

Draft IEP, 12 pages

CSE Meeting Notice, 2 pages

[REDACTED] Psychological Evaluation, 8 pages

[REDACTED] IEP, 10 pages

Contact Log, 3 pages

F. Auditory Processing Assessment, 8/24/2023, 17 pages

G. Speech/language Evaluation, 7/31/2023, 6 pages

H. Early Intervention Psychological Evaluation, 7/17/2023 10 pages

I. WRMT-III, 3/13/2023, 6 pages

J. [REDACTED] Assistive Technology Evaluation, 10/24/2022 3 pages

K. WRMT-III, 9/7/2022, 6 pages

L. School Report Card, Q1, 2022-2023, 2 pages

M. School Progress Report Q1, 2022-2023, 1 page

N. School Report Card, Q2, 2022-2023, 2 pages

O. School Progress Report Q2, 2022-2023, 2 pages

P. School Report Card, Q3, 2022-2023, 2 pages

Q. School Progress Report Q3, 2022-2023, 2 pages

R. School Report Card, Q4, 2022-2023, 2 pages

S. School Progress Report Q4, 2022-2023, 2 pages

T. [REDACTED] Psychological Evaluation, 1/20/2019, 7 pages

U. School Teacher Summary, Undated, 3 pages

V. Attendance Summary, 2022-2023, 2 pages

W. [REDACTED] Agreement, 8/15/2023, 2 pages

X. School Tuition Contract, 9/8/2022, 8 pages

Y. Resume, Undated, 2 pages

Z. Resume, Undated, 3 pages

AA. Resume, Undated, 4 pages

BB. Transcription of CSE, 3/20/2023, 45 pages

CC. Audiofile of CSE meeting, 3/20/2023, pages (N/A)

DD. Class Schedule, 2022-2023, 3 pages

EE. Curriculum Vitae, Undated, 10 pages

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.

Footnotes

[1] Initially the District submitted District “12” as well, but never attempted to admit this document into evidence.

[2] Pursuant to an Interim Decision dated February 22, 2024, this IHO ordered in relevant part: “this IHO is overruling the District’ objection to Dr. [REDACTED] being certified as an Education Expert;... that Dr. [REDACTED] is certified as an Education Expert; and.. the District’s motion to strike paragraphs 12 and 13 of Dr. [REDACTED]’s Affidavit [at IHO Ex. “IV”,], and if any, corresponding testimony, as well as his statements, analysis, etc. regarding any prior psychological testing is denied; and... this IHO shall assign whatever weight to the above-mentioned testimony this IHO deems appropriate.” (see: IHO Ex. “VI”).

[3] Such discussion is not in the transcript from the meeting at Parent Ex. “BB”.

[4] Actually, Ms. [REDACTED] stated at the meeting that for both classified and general education students, when a student needs additional one-on-one time, she will sit with the student and as an ELA teacher, pre-read or work on writing with the student. The District provides one-on-one assistance in general when a student shows a specific need. However, Ms. [REDACTED] did not specifically state that the District provides one-on-one instruction for reading.

[5] Such discussion is not in the transcript from the meeting at Parent Ex. “BB”.

[6] The transcript of the CSE meeting at Parent Ex. “BB” does not include any discussion of the goals.

[7] See referenced Interim Decision (Infra).

[8] Notably, in Dr. [REDACTED]’s Report, which the District indicated at the CSE (Dr. [REDACTED] is referred to as “Dr. [REDACTED]” in the transcript which appears to be a stenographical error), they had received, he recommended a 12:1:1 special education program in all content areas which was not considered (Parent Ex. “BB” at pp. 7, 31; Parent Ex. “D” at p. 2).

[9] This appears to be Goal “4” on the IEP (Parent Ex. “B” at p. 8).

[10] None of the goals contained in the Progress Report stated what percent constituted mastery. Accordingly, it is unclear as to the significance of the Student’s performance on these goals.

[11] Even though the Attendance totals state that Student had 76 unexcused absences the numbers only add up to 70 and says 206 for excused absences, the numbers only add up to 204.

[12] Based on the comprehensive assessments results reported in a speech/language “Reevaluation/Initial Evaluation Review Report” dated July 31, 2023, the Student “does not qualify for speech-language services. Her overall skills are within the average range for her age. Weaknesses in receptive language skills can be addressed through her special education program” (Parent Ex. “G”). Accordingly, it does not appear that the Student needs to receive speech-language services as part of her special education program, despite Dr. [REDACTED]’s recommendation.

[13] A Psychological Report dated July 7, 2023, by [REDACTED], MS, NCSP, states in relevant part, “Social/emotional assessment using the BASC-3 self-report resulted in a composite and scale scores falling within normal limits suggesting that [the Student] reports feelings and behaviors that are similar to most others her age” (Parent Ex. “H” at p. 9). Accordingly, it does not appear that the Student needs counseling as part of her special education program, despite Dr. [REDACTED]’s recommendation.

[14] Testified that all students have “access” to assistive technology, not that the Student is actually provided with assistive technology (see: Infra). However, see the analysis above regarding why the Student does not need to receive such services.

[15] Notably, when the total annual tuition of $40,856 is divided by the 10-month period the Student attended the School, from on or around September 7, 2022 to June 30, 2023, it equals $4085.60 per month. When the three-month period of March 20, 2023 to June 30, 2023 is multiplied by $4085.60 it equals 12,256.80, not $15,659.00. Accordingly, it is unclear as to how this amount of tuition was calculated.

[16] See, e.g., M.C. v. Cent. Reg’l Sch. Dist., 81 F.3d 389 (3d Cir. 1996) holding that when a school district knows or should know that a disabled child’s program is deficient yet fails to correct it, the child is entitled to compensatory education for a period equal to the period of deprivation, but excluding the time reasonably required for the school district to rectify the program. See also: Manchester Sch. Dist. V. Christopher B., 807 F. Supp. 860 (D.N.H. 1992).

[17] See, e.g., Reid v. Dist. of Columbia, 401 F.3d 516, (D.C. Cir. 2005) (adopting a flexible, fact-specific approach in which the ultimate award is reasonably calculated to provide the educational benefits that likely would have occurred from special education services that the school district should have supplied in the first place).

[18] See, L.O. v. New York City Dep’t. of Educ., 822 F.3d 95 (2d Cir. 2016) (remanding to the district court to determine whether the student is entitled to relief by “’leav[ing) the mechanics of structuring the compensatory education award to the [D)istrict (C)ourt’s sound discretion’”); Doe v. East Lyme Board of Educ., 700 F.3d 440 (2d Cir. 2015 (remaining to the District court to decide whether compensatory education should be limited to the kinds of services specified in the student’ contested IEP or encompass analogous educational services appropriate to the student’s current needs).

[19] See, e.g., Student X. v. New York City Dep’t. of Educ., 51 IDELR 122 (E.D.N.Y. 2008) (noting that the Second Circuit has not adopted a test for determining how to calculate an award of compensatory education but awarding hour-for-hour).