Skip to main content
Special Education Law
DECISIONParent PrevailedSEL No. 2012-ih-731

New York City Department of Education, Impartial Hearing Decision

July 23, 2012·Jeffrey J. Schiro·Hearing Requested by: Parent

NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: May 10, 2012

May 25, 2012

June 18, 2012

Record Close Date: July 18, 2012

Hearing Officer: Jeffrey J. Schiro, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 10, 2012

Attorney — Student

Parents

Chairperson’s Designee, CSE — DOE

Teacher Assigned, CSE (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 25, 2012

Attorney — Student

Parents

ABA Director, (via telephone) — Student

Chairperson’s Designee, CSE — DOE

IEP teacher, (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 18, 2012

Attorney — Student

Parents

ABA Director, (via telephone) — Student

Chairperson’s Designee, CSE — DOE

INTRODUCTION - ADMINISTRATIVE PROCEDURES

This impartial due process proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482, and Article 89 of the New York State Education Law. This hearing was requested by the attorneys for the student and the parent in a due process complaint notice dated February 8, 2012. The primary issue to be determined at this hearing is whether or not the Department of Education (the “DOE”) shall be ordered to reimburse the parent and/or directly pay for costs associated with the student’s unilateral private placement at the in Brooklyn for the 2011/12 school year (Ex. P-B).[1]

When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (“IEP”), which is delegated to a local Committee on Special Education (the “CSE”) that includes, but is not limited to, parents, teachers, at least one psychologist, and school district representatives. See N.Y. Educ. Law § 4402; see also 20 U.S.C. §§ 1414(d)(1)(A)-(B); 34 C.F.R. §§ 300.320, 300.321; 8 NYCRR §§ 200.3, 200.4(d)(2). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing. See 20 U.S.C. §§ 1221e-3, 1415(e)-(f); 34 C.F.R. §§ 300.151 - 300.152, 300.506, 300.511; N.Y. Educ. Law § 4404(1); 8 NYCRR §§ 200.5(h)-(l).

New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding “any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student.” See 8 NYCRR § 200.5(i)(1); see also 20 U.S.C. §§ 1415(b)(6)-(7); 34 C.F.R. §§ 300.503(a)(1)-(2), 300.507(a)(1). An impartial hearing officer (“IHO”) typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five (5) business days before the hearing; and obtain a verbatim record of the proceeding. See 20 U.S.C. §§ 1415(f)(2)(A), (h)(1)-(3); 34 C.F.R. § 300.521(a)(1)-(4); 8 NYCRR §§ 200.5(j)(3)(v), (vii), (xii). The IHO must render and transmit a final written decision in the matter to the parties not later than 45 days after the expiration period or adjusted period for the resolution process. See 34 C.F.R. §§ 300.510(b)(2), (c), 300.515(a); 8 NYCRR § 200.5(j)(5). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with State and federal regulations. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). The decision of the IHO is binding upon both parties unless appealed. See N.Y. Educ. Law § 4404(1). A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (“SRO”). See N.Y. Educ. Law § 4402(2); see also 20 U.S.C. § 1415(g)(1); 34 C.F.R. § 300.514(b)(1); 8 NYCRR § 200.5(k).

II. PROCEDURAL HISTORY

I was appointed by the DOE to hear this matter on February 27, 2012, following the recusal of another hearing officer. At a hearing held on May 10, 2012, the parent moved for an interim order on pendency, see 20 U.S.C. § 1415(j); 34 C.F.R. § 300.518(a); N.Y. Educ. Law § 4404(4); 8 NYCRR § 200.5(m), seeking DOE funding for the student’s private placement pending the conclusion of these proceedings (R. 16-23). The DOE opposed that part of the parent’s application which sought to invoke pendency rights prior to the ate of the parent’s February 8, 2012 due process complaint notice (R. 24). In an Interim Order on Pendency dated June 25, 2012, I determined that the was the student’s pendency placement and ordered that the DOE maintain the student at the at public expense, effective February 8, 2012 until such time as the due process proceedings in this matter are completed (Ex. IHO-I at 6-8). Hearings in this matter were thereafter held on: May 25, 2012 and June 18, 2012.[2] Appended to this decision are: a statement of appeal rights; a list of the persons in attendance at the hearings; and a list of the documents received into evidence. See 8 NYCRR § 200.5(j)(5)(v).

III. FACTUAL BACKGROUND

At the time of the May 10, 2012 hearing, the student was ) years old and attending an ungraded program at the in Brooklyn (Exs. SD-1 at 1, SD-2 at 1, SD-4, SD5, SD-6, P-A at 3, P-B at 1, P-C at 3, P-E, P-F, P-H, P-I, P-J). The is a nonpublic school that has not been approved by the Commissioner of Education as a school with which public school districts may contract to provide special education instruction and services to students with disabilities (R. 188, 194-195). See 8 NYCRR §§ 200.1(d), 200.7. The student's eligibility for special education and related services as a student with autism is not in dispute in this hearing (Ex. SD-1 at 1, P-A at 3, P-B at 1 ).[3] See 34 C.F.R. § 300.8(c)(1); 8 NYCRR 200.1(zz)(1).

The student has attended the for the last six (6) years (Ex. P-A at 3). On March 25, 2010, when the student was ten (10) years old, the Vineland Adaptive Behavior Scales, Second Edition (“Vineland-II”), was administered to the student’s mother as part of a reevaluation.4 The student’s overall level of adaptive functioning was measured as a standard score of 52, which was described as “low.” Similarly, the student’s adaptive functioning within the communication, daily living skills, socialization and motor skills domains were also all described as “low” (Ex. SD-2 at 2-3).

During the 2010/11 school year, the student participated in a class of five (5) students with a teacher to student ratio at the (Ex. SD-5 at 1). In an April 1, 2011 occupational therapy progress report, the student’s at the described the student as in the parent’s due process complaint justified the delay in the resolution of the matter and was in accordance with the requirements of due process. Accordingly, requests for an extensions of the case compliance date were granted (R. 92-93, 179-180; Exs. IHO-II, IHO-III, IHO-IV, IHO-V). presenting with global delays in gross and fine motor skills, motor planning, safety, selfcare, play and social participation. During the 2010/11 school year it was reported that the student received two (2) individual sessions, and one (1) group session, of occupational therapy each week. Additionally, a , , and a had been put into place to improve the student’s regulation (Ex. SD-6 at 1).

The therapist at the stated that the student’s communication skills had improved over the course of the year. To , the student used her communication device, gestures and 2-3 word sentences. In addition, the student reportedly made progress with her ability to self-regulate and calm herself. While the student did occasionally demonstrate signs of , as well as , these had reportedly decreased over the course of the year. Given that the student’s eye contact and was still limited, continued to be recommended (Ex. SD-6 at 1-2).

In an April 6, 2011 annual review report, the student’s therapist at the stated that the student had made steady progress in her goals through individual and group therapy. The student’s therapist also reported, however, that the student continued to present with global delays, including deficits. Additionally, when an activity or an item was not motivating to the student, she often increased her or “zoned out.” The therapist recommended that the student continue to receive therapy in the coming school year and that redirection be employed to help the student focus on task completion (Ex. SD-5 at 1, 3).

In an April 7, 2011 educational progress report, Ms. , the student’s special education teacher explained that the student received a full day special education program supplemented by related services of , . While the student presents with global delays, her ability to learn new skills was described as “strong” (Ex. SD-4 at 2). , the student could follow classroom routines and directions presented in individual and group settings with minimal assistance and prompting. The student had reportedly become more independent in her ability to following daily routines and . The student was able to communicate her basic needs and wants through the use of modified sign language, verbal communication and an AAC device. Behaviorally, however, Ms. described the student as:

[D]emonstrating some inappropriate behaviors such as crying, scratching, and rocking her body. These behaviors occur when she is asked to wait for a desired object (typically food), out of frustration, or avoiding a given task. [The student] has difficulty communicating her desires and needs when she is having a tantrum or crying, which increases her frustration.

When she’s experiencing such tantrums, it is hard for her to regulate herself and requires maximum assistance in helping her calm down. In order to decrease these behaviors, a variety of sensory activities are required, including joint compression, therapeutic music, and deep pressure on the body (Ex. SD-4 at 1).

Ms. stated that, given the student’s “ , it is imperative that [she] continue to receive direct one-to-one instruction, as well as additional related services provided at the Imagine Academy in order to make continuous and consistent progress” (Ex. SD-4 at 3).

At a meeting held on May 2, 2011, the CSE developed an IEP for the student for the 2011/12 school year. The CSE recommended that the student receive the majority of her instruction in a 6:1:1 special class in a specialized school. The CSE also recommended that the student receive related services of individual and group occupational therapy, individual and group , adaptive physical education and specialized transportation (Exs. SD-1 at 1, 7, 15, 17, P-B at 2). According to the IEP, the only program modification made from the previous school year was the CSE’s recommendation that the student receive summer services at a State-approved private program (R. 88-89; Exs. SD-1 at 2, SD-3).[5]

On June 13, 2011, the DOE sent the parent a final notice of recommendation identifying the site of the student’s IEP as in Brooklyn (Exs. SD-7, P-B at 4). On August 24, 2011, the parent submitted a notice to the CSE rejecting its proposed IEP for the student and setting forth her intent to make a unilateral placement of the student at the at public expense for the 2011/12 school year (Exs. P-B at 1, P-C). On February 8, 2012, the parent filed a timely due process complaint notice, see 8 NYCRR § 200.5(j)(1)(i), which triggered this proceeding (Ex. P-B).

IV. POSITIONS OF THE PARTIES

A. The DOE

The parent’s claim for tuition reimbursement and/or direct payment to the Imagine Academy should be denied. The DOE offered the student a free appropriate public education in the least restrictive environment for the 2011/12 school year. The CSE relied on sufficient and adequate evaluative information to develop its IEP for the student. The parent was permitted meaningful participation in the CSE meeting. The IEP goals and objectives were reasonably related to the student’s educational needs. The proposed program was reasonably calculated to confer meaningful educational benefit to the student. The was an inappropriate and overly restrictive placement for the student which failed to meet her special education needs. The relevant equities also do not support the parent’s claim. The parent has not established the requisite financial need to qualify for direct payments to the (R. 33-35, 362-368).

B. The Parent

The DOE should be ordered to reimburse the parent and/or directly pay for the student’s tuition to the Imagine Academy for the 2011/12 school year. The DOE failed to offer the student a free appropriate public education. The IEP developed by the DOE was procedurally and substantively inadequate. The appropriately addressed the student’s educational needs. The relevant equities also support direct public funding of the student’s tuition to the Imagine Academy (R. 36-38, 348-362).

V. FINDINGS OF FACT AND CONCLUSIONS OF LAW

A. General Legal Standards

Two purposes of the IDEA are: (1) to ensure that students with disabilities have available to them a (“FAPE”) that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, ; and (2) to ensure that the rights of students with disabilities and parents of such students are protected.6 See 20 U.S.C. § 1400(d)(1)(A)-(B); see generally Forest Grove v. T.A., 129

The term “free appropriate public education” means special education and related services that –

S. Ct. 2484, 2491 (2009); Board of Education of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).

A FAPE is offered to a student when: (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP developed by its CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits. See Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005). While school districts are required to comply with all IDEA procedures, not all procedural errors render and IEP legally inadequate under the IDEA. See A.C. v. Board of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 (2d Cir. 2009); Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies: (a) impeded the student’s right to a FAPE; (b) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to the student; or (c) caused a deprivation of educational benefits. See 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2); 8 NYCRR § 200.5(j)(4)(ii).

The IDEA directs that, in general, an impartial hearing officer’s decision must be made on substantive grounds based on a determination of whether the student received a FAPE. See 20 U.S.C. § 1415(f)(3)(E)(I). A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” See Rowley, 458 U.S. at 203. However, the “IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP.” Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998); see Rowley, 458 U.S. at 189. The statue ensures an “appropriate” education “not

(A) have been provided at public expense, under public supervision and direction, and without charge;

(B) meet the standards of the State educational agency;

(C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and

(D) are provided in conformity with the individualized education program required under section 1414(d) of this title. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17. one that provides everything that might be thought desirable by loving parents.” Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989). Additionally, school districts are not required to “maximize” the potential of student with disabilities. See Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132. Nonetheless, a school district must provide “an IEP that is ‘likely to produce progress, not regression,’ and ... affords the student with an opportunity greater than mere ‘trivial advancement.’” Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130; see also P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 (2d Cir. 2008). The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit.” Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997), quoting Rowley, 458 U.S. at 192.

The student’s recommended program must also be provided in the least restrictive environment (the “LRE”). See 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. §§ 300.114(a)(2)(I), 300.116(a)(2); 8 NYCRR §§ 200.1(cc), 200.6(a)(1); Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 (2d Cir. 2007); Walczak, 142 F.3d at 132. Also, a FAPE must be available to an eligible student “who needs special education and related services, even though the [student] has not failed or been retained in a course or grade, and is advancing from grade to grade.” 34 C.F.R. § 300.101(c)(1); 8 NYCRR § 200.4(c)(5).

An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs, 34 C.F.R. § 300.320(a)(1); 8 NYCRR § 200.4(d)(2)(I), establishes annual goals related to those needs, 34 C.F.R. § 300.320(a)(2); 8 NYCRR § 200.4(d)(2)(iii), and provides for the use of appropriate special education services, 34 C.F.R. § 300.320(a)(4); 8 NYCRR § 200.4(d)(2)(v).

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim. See Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); School Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 (1985). The remedy of tuition reimbursement has been extended to authorize direct payments to a private school for educational services rendered where Burlington/Carter factors are satisfied. Mr. A. v. New York City Dep’t of Educ., 769 F. Supp. 2d 403, 427-28 (S.D.N.Y. 2011); S.W. v. New York City Dep’t of Educ., 646 F. Supp. 2d 346, 358-60 (S.D.N.Y. 2009); Connors v. Mills, 34 F. Supp. 2d 795, 805-06 (N.D.N.Y. 1998).

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. See N.Y. Educ. Law § 4404(1)(c).

B. Procedural Compliance

Turning to the first prong of the Burlington/Carter test, I must determine whether the DOE complied with the procedural protections of the IDEA. See Cerra, 427 F.3d at 192.

1. Adequacy of, and Due Consideration of, Evaluations

The parent alleges that the CSE failed to consider current, sufficient and appropriate evaluative and documentary material to justify its recommendation (Ex. P-B at 2).

An evaluation of a student with a disability must use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the student, including information provided by the parent, that may assist in determining, among other things the content of the student's IEP. See 20 U.S.C. § 1414(b)(2)(A); 34 C.F.R. § 300.304(b)(1)(ii). In particular, a school district must rely on technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors. See 20 U.S.C. § 1414(b)(2)(C); 34 C.F.R. § 300.304(b)(3); 8 NYCRR § 200.4(b)(6)(x). A school district must ensure that a student is appropriately assessed in all areas related to the suspected disability, including, where appropriate, , see 20 U.S.C. § 1414(b)(3)(B); 34 C.F.R. § 300.304(c)(4); 8 NYCRR § 200.4(b)(6)(vii), and evaluation of a student must be sufficiently comprehensive to identify all of the student's special education and related services needs, whether or not commonly linked to the disability category in which the student has been classified, see 34 C.F.R. § 300.304(c)(6); 8 NYCRR § 200.4(b)(6)(ix).

A school district must conduct an evaluation of a student where the educational or related services needs of a student warrant a reevaluation or if the student's parent or teacher requests a reevaluation, see 34 C.F.R. § 300.303(a)(2); 8 NYCRR § 200.4(b)(4); however, a district need not conduct a reevaluation more frequently than once per year unless the parent and the district otherwise agree, see 34 C.F.R. § 300.303(b)(1); 8 NYCRR § 200.4(b)(4). A CSE may direct that additional evaluations or assessments be conducted in order to appropriately assess the student in all areas related to the suspected disabilities. See 8 NYCRR § 200.4(b)(3).

I find that the CSE had adequate evaluative information of the student’s functional, developmental and academic needs upon which to premise its program for the student for the 2010/11 school year (Exs. SD-1, SD-2, SD-4, SD-5, SD-6). See Application of a Student with a Disability, Appeal No. 12-017 (SRO February 22, 2012). I further find that the written statements of the student's then-present levels of performance were accurately reflected in the student's May 2011 IEP (Ex. SD-1 at 3-8). See Application of a Student with a Disability, Appeal No. 11-002 at 16 (SRO March 24, 2011). The student's then-present levels of performance reflected a description of the student's behaviors, academic abilities and learning characteristics that were consistent with information provided in a March 25, 2010 psychoeducational evaluation report, an April 1, 2011 occupational therapy progress report, an April 6, 2011 annual review report, and an April 7, 2011 educational progress report (R. 50-54; Exs. SD-1, SD-2, SD4, SD-5, SD-6). The evidence entered into the hearing record demonstrates that the student’s teacher presented information at the CSE meeting about the student’s thencurrent academic and social/emotional functioning (R. 44, 48-49; Ex. SD-1 at 2-8).

Alternatively, while the parent objects to the absence of numerical data on the student’s levels of academic functioning from the IEP, e.g., teacher estimates of the student’s grade levels of functioning, the student has been educated in an ungraded program at the for the last several years and Mr. (the CSE Chairperson) and Ms. (of the ) stated that the student’s level of prevented reliable data from being secured from standardized evaluations (R. 48, 78, 169, 199; Exs. SD-1 at 1, 3-5, SD-2, P-A at 3, P-B at 2). Additionally, while the parent objects to the absence of information on those sections of the IEP entitled “academic management needs,” I find that the student’s academic management needs are sufficient explained in other sections of the May 2nd IEP (R. 65; Ex. SD-1 at 3-8, 18).

2. Adequacy of IEP Goals & Objectives

The parent alleges that the annual goals and short-term instructional objectives developed by the CSE for the student were vague and unmeasurable and did not adequately address her particular needs (Ex. P-B at 3).

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 C.F.R. § 300.320(a)(2)(i); 8 NYCRR §§ 200.4(d)(2)(iii), 200.16(3)(3). 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. See 8 NYCRR § 200.4(d)(2)(iii)(b); see also 20 U.S.C. § 1414(d)(1)(A)(i)(III); 34 C.F.R. § 300.320(a)(3).

While the CSE’s annual educational goals for the student are flawed in that they lack 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 (R. 162-163, 165-168; Ex. SD-1 at 9-14), see 8 NYCRR § 200.4(d)(2)(iii)(b); see also 20 U.S.C. § 1414(d)(1)(A)(i)(III); 34 C.F.R. § 300.320(a)(3), I find that this flaw did not impede the student’s right to a FAPE, significantly impede the parent’s opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or cause a deprivation of educational benefits, see 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2); 8 NYCRR § 200.5(j)(4)(ii). Given that the CSE had designed the student for alternate assessment, its IEP for the student also contained short-term instructional objectives (R. 57, 128, 163-164; Ex. SD-1 at 9-14). See 8 NYCRR § 200.4(d)(2)(iv). Where, as here, recommended short-term objectives “contained sufficiently detailed information regarding ‘the conditions under which each objective was to be performed and the frequency, duration and percentage of accuracy required for measurement of progress’” any deficiencies in the annual goals are remedied (R. 50, 54-56, 130-131, 165-168; Ex. SD-1 at 9-14). See Tarlowe v. New York City Dep’t of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008); see also M.C. v Rye Neck Union Free Sch. Dist., 2008 WL 4449338, at *11 (S.D.N.Y. Sept. 29, 2008); W.S. v. Rye City Sch. Dist., 454 F. Supp. 2d 134, 146-147 (S.D.N.Y. 2006).

3. Parent Counseling & Training

I now turn to the parent’s claim that the DOE failed to offer the student parent counseling and training at the May 2011 CSE meeting (Ex. P-B at 3).[7] State regulations require than an IEP indicate the extent to which parent training will be provided to parents, when appropriate. See 8 NYCRR § 200.4(d)(2)(v)(b)(5). State regulations further provide for the provision of parent counseling and training for the purpose of enabling parents of students with to perform appropriate follow-up intervention activities at home. See 8 NYCRR 200.13.(d).

While the hearing record is unequivocal that the provision of parent counseling and training was not memorialized on the May 2011 IEP, the CSE’s failure to specify parent counseling and training on the student’s IEP did not result in a denial of FAPE where, as here, the record reflects that parent counseling and training would have been available at the assigned school (Ex. SD-1). See M.N. v. New York City Dep't of Educ., Region 9 (Dist. 2), 700 F. Supp. 2d 356, 366 (S.D.N.Y. 2010); M.M. v. New York City Dep’t of Educ. Region 9 (Dist. 2), 583 F. Supp. 2d 498, 509 (S.D.N.Y. 2008). Testimony from Mr. and Ms. (Administrative Coordinator at ) reveals that city-wide parent counseling and training was available to the parent and the student in the proposed class at (R. 81, 108, 172). Ms. explained that as part of this program, a parent coordinator notifies parents weekly of upcoming district-wide parent workshops, agency workshops,

8 NYCRR § 200.1(kk). and resource fairs (R. 172). Under the circumstances presented here, the CSE should have complied with State regulations by identifying parent counseling and training on the May 2011 IEP; however, given that parent counseling and training was available at the assigned school, the CSE’s failure to incorporate it into the challenged IEP did not result in any substantive harm, nor did it, in this case, rise to the level of a denial of a FAPE to the student. See Application of a Student with a Disability (New York City Dep’t of Educ.), Appeal No. 11-032 at 20 (SRO June 6, 2011).

4. Functional Grouping of Proposed Class

The parent alleges that the other students enrolled in the proposed class for the student would not have constituted an appropriate functional peer group (Ex. P-B at 4).

State regulations require that in special classes, students must be suitably grouped for instructional purposes with other students having similar individual needs. See 8 NYCRR §§ 200.1(ww)(3)(ii), 200.6(a)(3), (h)(3). State regulations further provide that determinations regarding the size and composition of a special class shall be based on the similarity of the individual needs of the students according to: levels of academic or educational achievement and learning characteristics; levels of social development; levels of physical development; and the management needs of the students in the classroom. See 8 NYCRR §§ 200.1(ww)(3)(i)(a)-(d), 200.6(h)(2). The social and physical levels of development of the individual students shall be considered to ensure beneficial growth to each student, although neither should be a sole basis for determining placement. See 8 NYCRR §§ 200.6(a)(3)(ii), (iii). Further, the management needs of students may vary and the modifications, adaptations and other resources are to be provided to students so that they do not detract from the opportunities of the other students in the class. See 8 NYCRR § 200.6(a)(3)(iv). State regulations also require that a “district operating a special class wherein the range of achievement levels in reading and mathematics exceeds three years shall . . . provide the [CSE] and the parents and teacher of students in such class a description of the range of achievement in reading and mathematics . . . in the class, by November 1st of each year.” See 8 NYCRR 200.6(g)(7). However, State regulations do not preclude a grouping of students in a classroom when the range of achievement levels in reading and math would exceed three (3) years. See Application of the New York City Dep’t of Educ., Appeal No. 08-018 at 13-14 (SRO May 19, 2008); Application of the Bd. of Educ. of the Granville Cent. Sch. Dist., Appeal No. 06-010 (SRO April 7, 2006).

In this case, a meaningful analysis of the parent’s claims with regard to the size of and the functional grouping of the proposed class would require me to determine what might have happened had the DOE been required to implement the student’s IEP. While parents are not required to first try out the school district’s proposed program before seeking tuition reimbursement, see Forest Grove, 129 S. Ct. at 2496, I note that neither the IDEA nor State regulations require a school district to establish the manner in which a student will be grouped on his or her IEP, as it would be neither practical nor appropriate, see Application of the Dep’t of Educ. of the City of New York, Appeal No. 11-040 at [22] (SRO June 8, 2011). The Second Circuit has also determined that, unlike an IEP, school districts are not expressly required to provide parents with class profiles. See Cerra, 427 F.3d at 194. The IDEA and State regulations provide parents with the opportunity to offer input in the development of a student’s IEP, but they do not permit parents to direct through veto a school district’s efforts to implement each student’s IEP. See T.Y. v. New York City Dep’t of Educ., 584 F.3d 412, 420, cert. denied, 130 S. Ct. 3277 (2010). A delay in implementing an otherwise appropriate IEP may form a basis for finding a denial of a FAPE only where the student is actually being education under the plan, or would be, but for the delay in implementation. See E.H. v. Board of Educ., 2008 WL 3930028, at *11 (N.D.N.Y. Aug. 21, 2008), aff’d, 2009 WL336627 (2d Cir. Oct. 16, 2009). The sufficiency of the DOE’s offered program in this case is determined on the basis of the IEP itself. See R.E. v. New York City Dep’t of Educ., 2011 WL 924895, at *10 (S.D.N.Y. Mar. 15, 2011). If it becomes clear that the student will not be educated under the proposed IEP, there can be no denial of FAPE due to the failure to implement it. See id.

Thus, in this case, the functional levels of the students in the class are speculative because the parent did not accept the services recommended by the CSE in the IEP or enroll the student in the public school (Exs. SD-1, P-B, P-C ). See Application of a Student with a Disability (New York City Dep’t of Educ.), Appeal No. 11-042 at 20-

Alternatively, the DOE has demonstrated that the student would have been suitably grouped for instructional purposes with children having similar needs and abilities. The hearing record reflects that the five (5) other students in the proposed 6:1:1 special class all had significant delays in cognition, communication skills, social skills, and adaptive skills similar to those displayed by the student who is the subject of this hearing (Exs. SD-1 at 3-8, SD-8). Ms. also testified that: (1) all the students in the proposed class were educationally classified with ; (2) the age range of students in the proposed class was from eleven (11) through thirteen (13); (3) all the students’ cognitive abilities were below average; (4) the academic functioning of other students was in the range of pre-kindergarten through first grade; and (5) other students in the proposed class received related services and therapies (R. 116-118, 146).

5. Size of Assigned School

Turning to the parent’s allegation that the size of the school building would be inappropriate for the student, I note that this issue in part speculative insofar as the parent did not accept the recommendations of the CSE or the program offered by the DOE (Exs. P-B at 4, P-C). The evidence in the hearing record does not support the conclusion that, had the student attended P.S. 370, the DOE would have deviated from substantial or significant provision of the student’s IEP in a material way and thereby precluded the student from the opportunity to receive educational benefits. See Rowley, 458 U.S. at 206-207; A.P. v. Woodstock Bd. of Educ., 2010 WL 1049297 (2d Cir. March 23, 2010); Cerra, 427 F.3d at 192 (2d Cir. 2005). Indeed, Ms. credibly testified that the CSE’s IEP for the student would have been implemented at had the student attended the recommended program (R. 136; Ex. SD-1).

C. Substantive Appropriateness of Proposed Program

As noted earlier, the IDEA directs that, in general, an impartial hearing officer’s decision must be made on substantive grounds based on a determination of whether the student received a FAPE. See 20 U.S.C. § 1415(f)(3)(E)(I). A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” See Rowley, 458 U.S. at 203. The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit.” Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997), quoting Rowley, 458 U.S. at 192.

For the reasons set forth below, I find that the DOE failed to meet its burden of proof to establish that the proposed class would have offered the student with personalized instruction with sufficient support services to permit the child to meaningfully benefit from that instruction. The DOE failed to demonstrate that the student would have received an adequate amount of individualized instruction in the proposed class to meet her global delays. Although the CSE adopted Ms. ’s position that the student “benefits greatly from receiving direct one-to-one instruction in which repetition and reinforcement coincide to acquire new skills,” the May 2011 IEP failed to indicate how much individualized, instruction the student would receive in the proposed special class (Exs. SD-1 at 4, SD-4 at 2-3). Mr. , who chaired the May 2, 2011 meeting which created the student’s IEP for the 2011/12 school year, also “couldn’t tell” how much one-to-one instruction the student would have received in the proposed program (R. 72).

The CSE also failed to recommend sufficient support services to meet this student’s significant behavior management needs. When developing an IEP, if a student's behavior impedes his or her learning or the learning of others, the CSE must "consider the use of positive , and other strategies, to address that behavior" when developing, reviewing, and revising an IEP. See 20 U.S.C. § 1414(d)(3)(B)(i); see also 34 C.F.R. § 300.324(a)(2)(i);[8] NYCRR 200.4(d)(3)(i).

At the May 2nd meeting, the CSE noted that the student displayed behaviors which interfered with learning such as: (R. 58; Ex. SD-1 at 18). Although the CSE determined that these “ and required additional support,” it failed to conduct a functional behavioral assessment (“FBA”) before developing a (“ ”) for the student

8 Functional behavioral assessment means the process of determining why a student engages in behaviors that impede learning and how the student’s behavior related to the environment. The functional behavioral assessment shall be developed consistent with the requirements in section 200.22(a) of this Part and shall include, but is not limited to, the identification of the problem behavior, the definition of the behavior in concrete terms, the identification of the contextual factors that contribute to the behavior (including an IEP inappropriate where sufficient support services are recommended to address a student’s behavior management needs, cf. A.C., 553 F.3d at 172-73, the here failed to set forth the frequency, duration and intensity of the student’s interfering behaviors. There was also no evidence presented by the DOE that the proposed special class teacher and/or related service providers could employ the recommended supports, i.e., sensory activities including deep pressure on the body, joint compression and therapeutic music, to help the student reduce her interfering behaviors (Ex. SD-1 at 18). Given Ms. ’s analysis that the student requires “maximum assistance in helping her ” when experiencing a tantrum, I find that the recommended therapies, i.e., and devoted to were insufficient to meet this student’s significant behavior management needs and the this lack of sufficient support services denied the student a FAPE (Exs. SD-1 at 6, SD-4 at 1).[9]

C. Appropriateness of the Imagine Academy

Given my finding that the DOE failed to provide the student with a FAPE during the 2011/2012 school year, I turn to the appropriateness of the parent’s private program. With respect to the second criterion for an award of reimbursement, the parent must show that the private services obtained for the student were appropriate to meet his special education needs. See Frank G. v. Board of Educ., 459 F.3d 356, 363 (2d Cir. 2006), cert. denied, 552 U.S. 985 (2007). Parents seeking reimbursement “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate.” See Gagliardo, 489 F.3d at 112.

In order to meet that burden, a private placement must be “proper under the Act,” cognitive and affective factors) and the formulation of a hypothesis regarding the general conditions under which a behavior usually occurs and probable consequences that serve to maintain it. 8 NYCRR § 200.1(r).

Behavioral intervention plan means a plan that is based on the results of a assessment and, at a minimum, includes a description of the problem behavior, global and specific hypotheses as to why the problem behavior occurs and intervention strategies that include positive behavioral supports and services to address the behavior. 8 NYCRR § 200.1(mmm). see Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370, i.e., the private school offered an educational program which met the student’s special education needs, see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129. “Subject to certain limited exceptions, ‘the same considerations and criteria that apply in determining whether the [s]chool [d]istrict’s placement is appropriate should be considered in determining the appropriateness of the parents’ placement.’” Gagliardo, 489 F. 3d at 112, quoting Frank G., 459 F.3d at 364. Parents need not show that the placement provides every special service necessary to maximize the student’s potential. See Frank G., 459 F.3d at 364-65. When determining whether the parent’s unilateral placement is appropriate, “[u]ltimately, the issue turns on” whether that placement is “reasonably calculated to enable the child to receive educational benefits.” Id. at 364; see also Gagliardo, 489 F.3d at 115. A “private placement is only appropriate if it provides ‘education instruction specifically designed to meet the unique needs of a handicapped child.’” Gagliardo, 489 F.3d at 115, quoting Rowley, 458 U.S. at 188-89; see also Weaver v. Millbrook Cent. Sch. Dist., No. 09-CV-692 (KMK), 111 LRP 59361 (S.D.N.Y. Sept. 6, 2011).

Based on the credible testimony offered by Ms. and the parent, I find that the was an appropriate placement for the student because it provided her with specifically designed, individualized instruction to meet her unique educational needs, supported by such services as were necessary to permit the student to benefit from instruction.

Ms. , a New York State certified special education teacher and Board Certified , described the as a small, private school with twenty-one (21) enrolled students ranging in age from six (6) to eighteen (18) (R. 188, 194-195). Students at the school carried diagnoses of: (R. 195). During the 2011/12 school year, the operated four (4) classrooms in which students were grouped by age, verbal ability and academic functioning (R. 194-196). Individual curriculums were prepared for each student using New York State academic standards and data obtained from ABLLS assessments (R. 192-194, 197). Students at the received one-to-one instruction throughout the day as well as related services of therapy, , music therapy and art therapy (R. 194, 196-197).

The student received academic instruction using Applied Behavioral Analysis (“ABA”) on pre-kindergarten skills, e.g., letters, shapes, numbers, colors, in a class of six

(6) students with six (6) adults (R. 203, 210-215; Ex. P-J at 2). The student worked with different staff members within the class to improve her generalization of skills (R. 216217; Ex. P-J at 2). The student received , , music therapy and art therapy at the with reportedly a good deal of collaboration between the student’s teachers and related service providers (R. 197-198, 222; Ex. P-J at 4-8). In addition to , instruction during art and music therapies was delivered using the DIR/Floortime methodology. A token economy was also used with the student to help her learn to wait her turn (R. 213-215, 224). The student, who had limited vocabulary, communicated using a combination of spoken language, pointing, a picture exchange communication system (“PECS”) system and her assistive communication device (called the Tango) (R. 209; Ex. P-J at 2-3).

Ms. explained that at the beginning of the 2011/12 school year, the student displayed a lot of rigidity and could easily become dysregulated, i.e., , , (R. 202-203, 207-208; Ex. P-J at 1). The student was provided “with a consistent predicable, and highly structured schedule” and, when , was brought to the gym to walk on a treadmill or jump on a trampoline (R. 208; Ex. P-J at 9).

Ms. stated that the student made “tremendous progress” on academic skills, such as sight words, receptive and expressive language and answering “wh” questions, activities of daily living and development (R. 209-212, 230-231; Exs. P-I, P-J at 9).

Alternatively, while the DOE argues that the was inappropriate for the student because it did not offer the student physical therapy or summer programming, parents need not show that their preferred placement provides every special service necessary to maximize the student’s potential in order to meet their burden of proof (R. 366-367). See Frank G., 459 F.3d at 364-65.

Regarding the district's contention that the is too restrictive, while parents are not held as strictly to the standard of placement in the LRE as school districts, the restrictiveness of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement. See M.S. v. Bd. of Educ., 231 F.3d 96, 105 (2d Cir. 2000); Pinn v. Harrison Cent. Sch. Dist., 473 F. Supp. 2d 477, 48283 (S.D.N.Y. 2007); W.S., 454 F. Supp. 2d at 138. I find that in light of the global delays of this particular student, LRE considerations, in this instance, do not weigh so heavily as to preclude the determination that the parent's unilateral placement of the student at the for the 2011/12 school year was appropriate (Exs. SD-1 at 3-8, SD-2, SD-4 at 2, SD-5 at 1, 3, SD-6 at 1). I credit the testimony of Ms. , and the opinions of Ms. and the student’s related service providers, that the student “requires direct instruction with trained professional in order to further her development and acquire new skills” (R. 210212; Ex. P-J at 9).

D. Relevant Equities

The IDEA allows that 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 removing the student from public school, or by written notice ten (10) 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.” See 20 U.S.C. § 1412(a)(10)(C)(iii)(I); 34 C.F.R. § 300.148(d)(1).

The IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. See 20 U.S.C. § 1412(a)(10)(C)(iii); Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 (S.D.N.Y. 2005), aff’d, 192 Fed. Appx. 62, 2006 U.S. App. LEXIS 20967 (2d Cir. Aug. 9, 2006). “Courts fashioning discretionary equitable relief under [the] IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private placement was unreasonable.” Carter, 510 U.S. at 16.

In a letter from counsel dated August 24, 2011, the parent gave the DOE adequate written notice of her intent to make a unilateral placement of the student at the at public expense for the 2011/12 school year (Ex. P-C). See 20 U.S.C. § 1412(a)(10)(C)(iii)(I); 34 C.F.R. § 300.148(d)(1). There is also no contention or evidence indicating that the student’s parent was uncooperative with the CSE, see 20 U.S.C. § 1412(a)(10)(C)(iii), or that the cost of the student’s tuition to the Imagine Academy was unreasonable (Exs. P-E, P-F), see Carter, 510 U.S. at 16.

Alternatively, while the DOE contends that the parent never intended to place the student in public school for the 2011/12 school year because she has enrolled the student at the for the last six (6) years, the parent’s pursuit of a private school is an insufficient basis for denying a claim for tuition reimbursement absent any evidence of her failure to cooperate with the development of an IEP or her interference with the selection of an appropriate placement by the DOE (R. 368; Ex. P-A at 3). Cf. T.Y. v. New York City Dep’t of Educ., 584 F.3d 412, 420 (2d Cir. 2009); Carmel Cent. Sch. Dist., 373 F. Supp. 2d at 417-18.

E. Relief

“Where . . . parents lack the financial resources to ‘front’ the costs of private school tuition, and in the rare instance where a private school is willing to enroll the student and take the risk that the parents will not be able to pay tuition costs – or will take years to do so – parents who satisfy Burlington factors have a right to retroactive direct tuition payment relief.” Mr. & Mrs. A., 769 F. Supp. 2d at 428. Since the parent has selected the Imagine Academy as the unilateral placement, and her financial status is at issue, the parent carries the burden of production and persuasion with respect to whether she has the financial resources to “front” the costs of the Imagine Academy and whether she is legally obligated for the student’s tuition payments. See, e.g., Application of a Child with a Disability (New York City Dep’t of Educ.), Appeal No. 12-004 at 16 (SRO March 19, 2012).

The parent has established that there was a lack of financial ability to "front" the student's tuition costs for the 2011/12 school year. The parent incurred an unconditional obligation to pay the tuition in the amount of $79,500.00, for the student’s enrollment at the ten-month program during the 2011/12 school year (R. 316; Exs. P-E, P-F). In

2010, the parent, a single mother, reported an adjusted gross income of approximately

$56,500, which includes $12,000 of support and/or maintenance for two (2) of her four

(4) children (R. 316-317; Ex. P-G). The parent’s financial circumstances have prevented her from making any payments toward the $79,500 tuition obligation she incurred for enrolling the student in the ten-month program (Ex. P-E).

VI. ORDER

NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED THAT:

(1) the parent’s claim for tuition reimbursement and/or direct payment of the student’s tuition to the for the 2011/12 school year is GRANTED; and

(2) within thirty (30) days of the date of this Order, the DOE shall reimburse the parent and/or directly pay to the all costs associated with the student’s placement at the for the 2011/12 school year.

Dated: July 23, 2012

________________________________

JEFFREY J. SCHIRO, ESQ.

Impartial Hearing Officer

JS:dl

PLEASE TAKE NOTICE

Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.

“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.”

(8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.

Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.

DOCUMENTATION ENTERED INTO THE RECORD ON MAY 10, 2012

PARENT

A. Findings of Fact & Decision, 4/11/12, 15 pp.

B. Due Process Complaint Notice/Impartial Hearing Request, 2/8/12, 6 pp.

C. Letter to from , 8/24/11, 4 pp.

D. Final Notice of Recommendation, 6/14/11, 1 p.

E. , Affidavit of Tuition Payment, 4/20/12, 1 p.

F. , Enrollment Contract 2011/12 School Year, 9/1/11, 3 pp.

DEPARTMENT OF EDUCATION

1. Individualized Education Program (IEP), 5/2/11, 18 pp.

2. Psychoeducational Evaluation Report, 3/25/10, 4 pp.

3. Letter from ( ), 1/18/11, 1 p.

4. , Educational Progress Report, 4/7/11, 3 pp.

5. , Annual Review, 4/6/11, 3 pp.

6. , Progress Report, 4/1/11, 2 pp.

7. Final Notice of Recommendation, 6/13/11, 1 p.

DOCUMENTATION ENTERED INTO THE RECORD ON MAY 25, 2012

PARENT

G. Tax Returns, dated 4/13/11 & 3/21/11, 4 pp.

H. Class Schedule, 2011/2012, 1 p.

I. Progress Report 2011/2012, 3/9/12, 6 pp.

J. Annual Review 2011/2012, 3/21/12, 10 pp.

DEPARTMENT OF EDUCATION

8. Class Profile, 2011/12, 2 pp.

Footnotes

[1] References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are noted as “Ex.”

[2] The parties moved to extend the case compliance date in this matter several times during the course of the hearing. In considering those requests, I weighed the cumulative impact of the relevant factors and found that the parties’ need for additional time to present their available witnesses on the extensive issues raised

[3] The student was diagnosed with autism at fifteen (15) months of age (Ex. SD-2 at 1). Autism means a developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before age 3, that adversely affects a student’s educational performance. Other characteristics often associated with autism are engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences. The term does not apply if a student’s educational performance is adversely affected primarily because the student has an emotional disturbance as defined in paragraph (4) of this subdivision. A student who manifests the characteristics of autism after age 3 could be diagnosed as having autism if the criteria in this paragraph are otherwise satisfied. 8 NYCRR § 200.1(zz)(1). The Vineland-II is a standardized, interview-based assessment instrument (Ex. SD-2 at 1).

[5] Twelve-month special service and/or program means a special education service and/or program provided on a year-round basis, for students determined to be eligible in accordance with sections 200.6(k)(1) and 200.16(i)(3)(v) of this Part whose disabilities require a structured learning environment of up to 12 months duration to prevent substantial regression. A special service and/or program shall operate for at least 30 school days during the months of July and August, inclusive of legal holidays, except that a program consisting solely of related service(s) shall be provided with the frequency and duration specified in the student’s individualized education program. 8 NYCRR § 200.1(eee).

[7] Parent counseling and training means assisting parents in understanding the special needs of their child; providing parents with information about child development; and helping parents to acquire the necessary skills that will allow them to support the implementation of their child’s individualized education program.

[22] (SRO June 20, 2011).

[8] (R. 58, 73, 76; Ex. SD-1 at 6, 18). While the absence of an does not typically render

[9] While another student in the proposed program who had a also was assigned a one-to-one paraprofessional, there was apparently no meaningful consideration of such a service for this student at the May 2nd CSE meeting (R. 73-74, 118, 147). Ms. also confirmed that did not have a sensory gym (R. 155).