Impartial Hearing Decision

THE UNIVERSITY OF THE STATE OF NEW YORK

STATE EDUCATION DEPARTMENT

In The Matter of the Parents and Guardians of [REDACTED]

Petitioners,

:

- against - Case #509908

:

[REDACTED] SCHOOL DISTRICT,

Respondent.

Introduction

I was appointed as the Impartial Hearing Officer on August 18, 2020 pursuant to the Individuals with Disabilities Educational Act (IDEA), 20 U.S.C. sec. 1415, after the recusal of the prior hearing officer. This matter concerning the 2017-2018 school year had proceeded before two hearing officers on 15 days over a two-year period with an initial hearing date of January 17, 2018 and a final hearing date of January 10, 2020. Counsel for the parties, [REDACTED] Esq. and [REDACTED] Esq., jointly requested that I decide the case on its merits by reviewing in excess of 3300 pages of transcripts containing the testimony of 11 witnesses and the admitted documents: Exhibits 1-39 for the District, Exhibits A-AA for the Parent as well as Hearing Officer Exhibits 1-11.

Both parties filed Post-Hearing Memoranda and these have been made part of the record as Hearing Officer Exhibits 12 and 13. The issue of whether transportation was appropriate as a pendency service had been decided by the prior hearing officer and is not part of this decision. At the joint request of the parties, the compliance date was extended several times with a final date of November 13, 2020.

District’s Case:

The District called three witnesses in support of its recommendations for the 2017-2018 school year. A fourth witness [REDACTED] CPSE Coordinator, testified only on the pendency portion of the case and was not relevant to the issues before me at the substantive hearing.

[REDACTED], school psychologist, testified at great length as to her involvement with the student and with the CPSE and CSE processes between November/December 2016 and August 30, 2017. First, during the 2016-2017 school year she was called upon by the preschool classroom teacher at [REDACTED] a number of times, estimated at 4-5 times per month, to intervene to de-escalate a tantrum or other crisis involving the student. (T. 500-02). Second, sometime in the spring of 2017 she provided the mother with a tour of [REDACTED], specifically of possible kindergarten classes for the 2017-2018 school year. They visited regular general education kindergarten classes, an RTI kindergarten class with an enrollment capped at 15 or 16 and self-contained special education classes. (T. 27-30). Third, as a member of the CPSE she attended several IEP meetings during 2016-2017, including the meeting on May 24, 2017 that provided for summer services and transition to the CSE. (T. 36; Ex D6). Fourth, she was present at the two CSE meetings - on May 24, 2017 and August 30, 2017 - at which an IEP was prepared and recommendations were made for the 2017-2018 school year. (T. 36, 463; Ex D7 and Ex D9).

At the May 24 meeting, the CSE reviewed prior evaluations, verbal and written reports and the current FBA and BIP. According to the witness, the psychological evaluation performed on June 8, 2016 using the WPPSI-IV showed an overall full-scale IQ score of 103 with above average scores in the language subtests and superior scores in verbal comprehension. (T 63-66; Ex D10). Parent and teacher ratings on the Connors Early Childhood Behavior Scales were elevated as to among other concerns attention, defiance or aggression, social functioning, anxiety, impulsivity and emotional lability. (T 73-77). His behavior with the evaluator was appropriate with respect to eye contact and use of language and she noted his primary issues as behavioral, emotional and social. (T 78-79). The educational evaluation similarly showed average academic skills with no concerns for his ability to learn but rather for his social/emotional and self-help skills. (T 82-87; Ex D11).

[REDACTED], the social worker who had provided counseling to the student and parent training to the parents during 2016-2017, was present and also had submitted an annual review progress report dated May 22, 2017. (Ex. D13). She reported on a recent diagnosis of ADHD, combined type, as well as to his progress. While noncompliance had decreased slightly, tantrums, impulsivity and aggressive behavior especially towards adults remained problematic with the greatest difficulty during transition times. He preferred girls more than boys as playmates, was developing relationships with older peers and was becoming more manageable at home. (T. 95-103).

The OT provider supplied a written report and participated by telephone. The student continued to demonstrate poor frustration tolerance and self-regulation skills, to have trouble following instructions and to perform consistently to his ability level. She suggested sensory inputs for the parents and teacher to utilize. (T. 91; Ex D8 and Ex D12). The preschool teacher contributed that he had responded well to a new aide who adhered to the behavioral system and who took him for sensory breaks as needed. He continued to be rigid and get upset about routine changes when he might still scream and cry but he was throwing fewer objects (T 387-89). His speech and physical therapists also contributed reports that were reviewed at the meeting. (T. 389-91).

The student had an FBA and BIP for the preschool year (Ex D14) and the CSE reviewed it and supporting data. (Ex D15). Although the CSE recommended an updated FBA/BIP be performed at the beginning of his kindergarten year in his new setting, the existing FBA/BIP provided important information to the CSE such as intensity, frequency, duration and baseline information as to the student’s problem behaviors of tantrums, impulsivity and aggression. The BIP specified behavioral goals, alternative skills to be taught and intervention strategies to be implemented by the general education teacher, the student’s aide and his service providers. (T. 117-19, 417, 947-64).

[REDACTED] reviewed the recommendations of the CSE. Based on the definition in 8 NYCRR 200.1 (zz)(10), the student’s diagnosis of ADHD, his demonstrated impulsivity and attention issues that impacted his functioning in school, the classification selected at the May 24, 2017 meeting was other health impaired (OHI). (T. 433-36). However the program, services, goals and modifications on the IEP were based on the needs of the specific student regardless of classification. (T 487-88). At the August 30, 2017 meeting despite reference to a possible autism diagnosis by Dr. [REDACTED], the CSE continued to recommend OHI as the appropriate classification. At the time of the psychological evaluation, the student was able to appropriately engage with the evaluator in terms of verbal and nonverbal communication with good eye contact, had no odd or unusual mannerisms and was socially related. (T 450; Ex D6).

After discussing the concept of least restrictive environment (LRE) and reviewing the placement options on the continuum of services, the May 24, 2017 CSE meeting with the approval of the mother resulted in a recommendation of a general education classroom with services and supports. Despite the student’s behavioral issues, his academic and cognitive abilities were average or above. Many kindergarten students need to learn acceptable behaviors and social skills so that the kindergarten curriculum included conflict resolution and proper interaction skills such as turn-taking, identification of feelings and use of appropriate language. His interaction on a daily basis with typically developing classmates who would serve as role models would help him to generalize behavioral changes and practice them in the school environment. (T 444-60; 985-88).

The CSE recommended the following related services for the student: 1) Counseling 3:1 twice weekly for 30 minutes to help him practice in a small structured environment appropriate social skills to be applied in the classroom (T 967); 2) Behavior Intervention Services 1:1 twice weekly for 60 minutes, provided by the BCBA who would also conduct the FBA, to work with the student and staff to oversee the implementation of his BIP (T 441); 3) OT once a week individually for 30 minutes and once 3:1 for 30 minutes as well as an OT consult weekly for 30 minutes; 4) Parent training in the home for 60 minutes weekly to help the parents understand the child’s needs, teach them strategies and coping mechanisms and foster coordination in the use of behavior modification programs between school and home (T 440); 5) a full-time aide left off the IEP of May 24 in error but corrected at the meeting on August 30, 2017 (T 442). The IEP also included supplementary accommodations and services such as sensory breaks, advance warning for schedule changes, breaks as needed, positive reinforcement and behavioral interventions throughout the school day. (T 443-44; Ex D7).

The IEP contained eight goals that were appropriate to the student’s social/emotional/behavioral needs and were measurable. (T 845-52). Addressed were his impulsive and attentional deficits and his negative and physically aggressive behaviors. Goal 1 focused on his difficulty in transitioning, especially from a preferred to a less preferred task, sometimes leading to aggression. Goal 2 was developed to increase his attention and focus as being off task often led to negative interfering behaviors. Goal 3 was designed to help him to tolerate transitions with less frustration and to develop coping skills for environmental changes. Goal 4 addressed impulsivity and social skills with peers and adults by providing scenarios to help him identify appropriate and inappropriate options. Goals 5 - 8 were OT goals and addressed the student’s motor skills and difficulty in focusing in the classroom in the presence of visual or auditory stimuli. (T 403- 17).

[REDACTED], Supervisor of Pupil Personnel Services, attended both the CPSE and CSE meetings on May 24, serving as Chairperson for the latter, as well as participating in CSE meetings on August 30 and September 13, 2017. Her testimony about the May 24th CSE meeting as to the documents reviewed, the continuum of services discussed, the recommendations made as to classification of OHI and placement in a general education kindergarten class with supports of OT, counseling, behavior intervention and parent training essentially corroborated the extensive testimony of [REDACTED. (T 1125-79).

She was present at the meeting on August 30, 2017 chaired by [REDACTED] that included [REDACTED], the teacher of the kindergarten RTI class to which the student had been assigned by the principal as well as the mother and her advocate. (T 1194-98; Ex D18). The letter from Dr. [REDACTED] was discussed but not in detail as it had just been received. (T 1226-29). From the progress reports submitted by the social worker, the CSE was aware that the student had been transferred out of a mainstream summer camp, had an aggressive tantrum that sent him to the emergency room and was receiving medication from Dr. [REDACTED] who had diagnosed him with ADHD, ASD, ODD and Sensory Processing Disorder. (T 1343-50; Ex D16 and Ex G).

Dr. [REDACTED]’s letter did not call for a self-contained classroom and described such a placement as a “fast pathway to more failure” since it would not be sufficiently academically stimulating. Rather he recommended a “highly specialized educational setting that is both emotionally guiding and academically stimulating” and mentioned Allied Achievement (Allied). (Ex D17). The IEP from the May 24th meeting had recognized these needs by recommending highly intensive behavioral interventions in an academic classroom for students with average to high average abilities. (T 1233-34). The individuals who would work with the student as teacher and service providers would have expertise in working with children who are “twice exceptional”, i.e., at superior range in one or more academic areas yet with a disability that interferes with learning. (T 1237-38). With the exception of adding the 1:1 aide who had been inadvertently omitted from the IEP in May, the CSE’s recommendations remained the same. (T 1230-38; Ex D9).

The parent indicated a preference for [REDACTED] but the CSE explained it could not be recommended as it was not a state-approved program and would be too restrictive. (T. 1254-55). The mother did not agree with the decision and did not sign the summary form. (Ex. K). The FBA and BIP recommended on the IEP needed to be performed in his kindergarten environment, not in preschool or camp, and since the student did not attend the District school in September, they were never done. (T 1247-49).

The CSE met again on September 13, 2017 to discuss the parent’s request for transportation to [REDACTED]. (T 1259-62; Ex. D22 and D23). After the parent and the advocate mentioned therapeutic and psychiatric needs, there was a discussion about possible BOCES programs. The parent and advocate were concerned that the student’s academic needs would not be met there and the CSE continued with its prior recommendation of general education with behavioral support and services. (T. 1264-66). The meeting was ended after the parent became extremely agitated and acted in a manner [REDACTED] took to be threatening. (T 1266-68).

[REDACTED], secretary to the principal of No. 4 School, testified briefly about how the rosters for the RTI kindergarten class were prepared and modified in August and September 2017. (T. 1399-1453).

Parent’s Case The mother testified at great length in support of her request for reimbursement/funding for tuition at [REDACTED] due to the District’s failure to provide a FAPE for the 2017-2018 school year. Her son’s disruptive behaviors were first noted during 2014-2015 when he was in a nursery school class of 16 or 17 children at [REDACTED]. At the suggestion of the teacher she contacted the CPSE and her son was classified and provided [REDACTED] in a general education class for 2015-2016 and continued to have significant behavioral difficulties, such as tantrums, hitting other children and not complying with adults. Also, he made no friends. (T 2108-10).

When the CPSE met in June 2016 the director of [REDACTED] informed them the student could no longer be accommodated there in a class of 15 or 16 children. (T 2118). The CPSE recommended a center-based preschool program but none accepted him because of his aggressive behaviors. (T 2124-27). The parent enrolled the student at [REDACTED] because it had small classroom size with OT, PT and speech. Even in a class of ten, with SEIT services provided through the CPSE, while he did well academically in English and Hebrew, he had outbursts every day, sometimes multiple times a day, interfering with the teacher’s ability to provide educational instruction. (T 2130-36). When dysregulated he would sit with the principal in his office and even after an aide was provided by the CPSE, he was expelled in November. (T 2137-40; Ex L).

He then began attending [REDACTED] in a UPK general education class with 17 or 18 students and two teachers but was not permitted to attend until a new aide was in place after he attacked his original aide. Because he was so angry and dysregulated, his school day was shortened to end at 12 noon and he only returned to a full day program in May. The children did not socialize with him because of his outbursts and aggressive behavior and several times the classroom had to be cleared of others for their safety. (T 2145-53).

On May 24, 2017 the mother attended the CPSE meeting that discussed a center-based summer program and served as a turning-five transition to the CSE meeting that followed. (T. 2153-60). Among those in attendance were Joseph Fein, an attorney for the parent, and [REDACTED], the social worker who had been providing counseling since February 2017, originally for three hours and then five hours weekly. (T. 2161-64). The team reviewed evaluations and progress reports and the mother expressed her concerns that her son continued to pose a safety issue for himself and others and had not made significant progress with his behavior to continue in the same setting. (T 2165-69). She also felt that he had not met the goals on the CPSE IEP.

The mother objected to a self-contained class because it would not meet his high functioning cognitive needs and to a regular general education classroom of 18 to 20 because of the size. (T 2171-75). Her only tour of [REDACTED] had been with [REDACTED] in December 2016 or January 2017 to look at preschool classes. There was no mention of or visit to an RTI kindergarten class. (T 2177-79). At the end of the meeting she refused to sign the summary form because based upon his prior years at [REDACTED] and [REDACTED], she was not convinced her son would make progress in a large general education class when he needed a small classroom with individualized learning. (T 2180-83, 2190).

For the summer of 2017 after a center-based program rejected him, her son began camp in the mainstream setting at [REDACTED} with continuation of an aide and counseling three days a week. On the second day he struck a teacher and a student and the director would only allow him to continue if he were moved to the self-contained program where he would be in a group of 9 or 10. Even there he had behavioral episodes. He would impulsively splash others in the pool, had difficulty transitioning between activities and locations within the camp and had trouble relating to some of the lower functioning students. (T 2192-2205). Also her son began seeing Dr. [REDACTED] that summer as the mother felt he needed psychiatric care for his constant anger. (T. 2206-08).

The family also enrolled in a socialization class for parents and children at [REDACTED] Clinic that the father attended. At around the fifth session her son had a meltdown that could not be contained and was transported by ambulance to the emergency room for psychiatric observation though he was not held overnight. (Ex. P; T 2209-21).

The mother asked for an emergency CSE meeting and that took place on August 30, 2017 after [REDACTED] returned from vacation. The mother attended with her advocate, [REDACTED], and there was new material available for discussion: the letter from Dr. [REDACTED] that recommended a very individualized program with 1:1 attention and opportunity to demonstrate mastery (Ex D17) and the latest progress report from the counselor. (Ex. G). (T. 2223-31). The mother emphasized her son’s failure in the UPK program at [REDACTED] in a class of 17 or 18 and at [REDACTED] in a class of ten and urged a change in placement to a smaller class in a smaller environment. Citing slow and inconsistent progress according to the counselor, the CSE made no changes to the IEP other than to correct for the addition of a 1:1 aide. (T. 2232-34; Ex D9). Not happy with the outcome, the mother signed the summary form but wrote on it that the placement was not appropriate. (T. 2240-41; Ex K).

After the meeting the mother wrote to the District that she was placing her son at [REDACTED] in Brooklyn. (Ex. M). She had first spoken to the school a week or two before the August 30, 2017 meeting but would have preferred to remain in a District school if appropriate to avoid the long commute to Brooklyn and to allow her son to make friends in the community. (T. 2243-46). There was another CSE meeting on September 13, 2017 because the parents had requested transportation and were hoping there could be a change in the recommendation. (T 2247- 51). Again, the mother felt the committee was unresponsive to her son’s needs and became extremely upset and angry. (T. 2254-56, 2304-08).

The mother had located a social worker named [REDACTED] who worked with twice exceptional youth and was active in the Twice Exceptional Council. She referred the parents to [REDACTED]. (T 2258-59). The parent visited in late August, spoke with the director and learned they had developed a program for students who needed high academic standards but also behavioral supports that entailed extremely small classes and contracted therapy providers. (T 2260-61). In September when the mother finally was able to observe the school in session and speak with the teacher, she learned that her son was in a small class with five students aged 4 ½ to 6. There was no need for an aide as the teacher understood his behavior and was able to control the class or direct him to a soft area to de-escalate. (T. 2262, 2266-67). The students were all classified and cognitively advanced. There were opportunities for socialization during lunch, gym and specials. (T 2276-77).

Her son made progress there in that he learned to read. (T. 2278). In math he was ahead of kindergarten level and by the end of the year he was doing triple digit addition and multiplication and was probably on a 2nd-3rd grade level. They also prepared a chess math worksheet for him and taught him a bit about statistics and graphing. (T. 2279-82). They did a lot of hands-on science experiments to provide sensory input and to channel aggression and impulsivity. (T. 2283-84).

Behaviorally he had difficulty transitioning to a new setting and new people in the beginning but was graded 3 or 4 later in the year. (T 2285). One way he learned to self-regulate was by being taught American Sign Language (ASL) to communicate with the teacher without disrupting the class. (T 2286-87). The teacher set goals for each student and the students also wrote their own goals. The quiet environment with fewer than 20 students was able to prevent sensory overload. (T 2287- 89). The teacher devised a self-directed reward system using “reasonable requests” for good behavior. (T 2291-92). His counselor worked with him on frustration tolerance, sharing and transitioning. He made good progress and he was much more agreeable at home, liked going to school and made friends for the first time with classmates. (T. 2292-93, 2296-97). There was strong support system organized by the parents with email exchanges and meetings. (T 2294-95).

[REDACTED], a former NYC special education supervisor and now an advocate for parents, was contacted by the parent in August 2017, about two weeks prior to the CSE meeting on August 30. She met with the parent and student, read documents provided by the mother including preschool records and the letter from Dr. [REDACTED] and spoke with the director of the [REDACTED] about the summer program. (T 1856-71).

All material she reviewed indicated that he was a student who required intensive support for his emotional dysregulation, i.e., his difficulty holding control of his emotions so as not to become aggressive and physically violent. He also needed to be in a small classroom with cognitively average or above average peers in a setting that provided academic excellence. (T 1872-78). He was a “twice exceptional” child – gifted with high intelligence and a behavioral and social disability. (T 1893-95). It was not appropriate to put him in a general education classroom with 16-20 students as he was not likely to remain in the classroom to learn and the teacher was not likely to be able to teach the class with his interruptions. (T. 1897-99).

She attended the CSE meeting on August 30, 2017, corroborating the parent’s testimony that she objected to the general education setting as being too large to meet her son’s behavioral and academic needs. They reviewed the continuum of services and the committee discussed that neither a self-contained class nor an ICT class was appropriate. (T 1906-09). An RTI class was never discussed nor was the teacher at the meeting identified as his assigned teacher. (T. 1910-11). The mother got very upset and at one point walked out of the meeting to calm down. (T 1915). Ms [REDACTED] also attended the CSE meeting on September 13, 2017 at which the CSE reiterated its position that general education would be the least restrictive environment. The mother became very upset and raised her voice but was not aggressive or assaultive toward [REDACTED]. (T 1916-21, 1928).

Ms [REDACTED] was introduced to [REDACTED] by a colleague named [REDACTED] who was very involved with the [REDACTED] Society and who suggested she contact the school. She spoke to its director and the classroom teacher who described the program and their plans to get a BEDS number so as to be recognized as a school by New York State. She understood that it was a small individualized program with academic instruction for some subjects in a group of three but in a larger group for science and social studies and for lunch and trips for socialization purposes. They said they had experience in working with children who were twice exceptional and in finding alternate ways to de-escalate issues. (T 1929-33). She knew that [REDACTED] was in its first or second year of existence and was trying to get approval from New York State though many schools get it later. (T. 2026-27).

The father testified that the parents made seven payments totaling $19,200 (Ex R) towards the $66,000 tuition they agreed to pay in the contract they signed. (Ex. Q). The family’s income tax forms for 2016 and 2017 were admitted into evidence as Exhibits T and U. [REDACTED] has been seeking payment of the remaining tuition but agreed to await the outcome of the hearing. (T. 3032-57).

Dr. [REDACTED] saw the student initially in May 2017 when the parents came in due to concerns over behaviors that were interfering with his participation in school and with his home life. (T 2444-45). On July 26, 2017 the student had a severe temper tantrum in a parent/child interaction therapy session when he did not get his reward immediately leading to violence towards the therapist and his father and to a visit to the emergency room. (T. 2448-53).

Dr. [REDACTED] treated him until June 2018 and wrote a letter to the School District on August 22, 2017 to urge it to make a more appropriate educational recommendation than the general education program. (Ex. D17). He had concerns that a general education classroom would be inappropriate given the student’s behavioral, emotional and psychiatric needs and his inability to maintain self-control because 1) he would struggle to engage in academic activities due to his pervasive hyperactivity and impulsivity, 2) he would impair the ability of the teacher to deliver instruction to the other students if she needed to address his frequent interruptions and 3) his classmates would become resentful and frustrated with his behavior and isolate him socially. In his opinion the student would need individualized attention beyond one teacher and a paraprofessional to be able to attend to instruction and maintain behavioral control. (T 2461-66).

He diagnosed him as having autism spectrum disorder (ASD), attention hyperactivity disorder and oppositional defiant disorder. In his opinion the proper educational classification was ASD or emotional disturbance not OHI which was insufficient to address the student’s complex needs. (T. 2466-69). An FBA leading to a BIP was imperative for this student in order to construct an appropriate IEP given that the primary interference to his psycho-educational progress was behavioral in nature. (T. 2470-74).

His recommendation was for individualized academic attention in a highly individualized educational setting for students who are sometimes classified as twice exceptional with both significant cognitive abilities and severe behavioral or emotional challenges. This would mean a class with a maximum of 5 or 6 students with adequate staff to address his needs. (T 2474-76). He did not think the student would make educational progress in a class of 16 or more students. (T 2484, 2490-92). In his letter he also wanted to make clear that if placed in an inappropriate setting the student could suffer severe psychological consequences in the future leading to mood and anxiety disorders over time. (T. 2481-83). Dr [REDACTED] reviewed the goals on the IEP and in his opinion while they were appropriate, they were not realistic goals for the student to meet. (T. 2494-98).

[REDACTED] as mandated by the CPSE provided counseling and parent training from early-January to mid-August 2017. Initially counseling was two days a week at home, then at preschool and later this was increased to five days a week. Parent training remained at twice per month. (T 2715-26). Based on regression statements, the CPSE decided to continue her services during the summer of 2017 at camp two to three times a week. (T 2727).

The student was always considered bright with some cognitive abilities in the superior range and an impressive amount of mathematical knowledge. Behaviorally he was struggling with impulsivity, would tantrum a lot and sometimes would be loud, violent and aggressive. (T 2731-32). He had difficulty interacting appropriately with his peers; he was very competitive and had tantrums if games were not going his way. (T 2733-34). He needed to be closely supervised and actively managed by people with training. (T. 2734). From the preschool teacher she learned that his behaviors resulted in good days, bad days and devastating days when the other students in the class had to be removed because of the violence of his tantrums. (T. 2738-39).

In her end of year report dated August 24, 2017 (Ex D16), she reported on the student’s experiences at Camp [REDACTED]. He continued to have behavioral issues with impulsivity, aggression and social difficulties with his peers and sometimes he would progress slowly and then regress. (T 2746-49). She recommended that he be placed in a small structured sensory-based program with academic challenges and trained professionals to closely monitor his social interactions. (T 2751). In her opinion the CSE recommendations for the 2017-18 school year were not appropriate given the difficulty in managing him and the limited progress he made in preschool. (T 2752). Overall, his progress was slow but inconsistent, with regression after achieving up to a certain point. Although they tried very hard, he did not achieve his goals for the year. (T. 2756-57).

[REDACTED], director of Camp [REDACTED], testified that she accepted the student on a probationary basis to the [REDACTED] Camp as the mother wished him to have a mainstream experience. He was initially in a group of 16-24 students with a ratio of 8:1. (T. 2820-23). After he punched a teacher in the face on the first day, he was moved to Camp [REDACTED] for students with disabilities in a class of ten students with a ratio of 3:1. (T 2822-24). Even with his 1:1 aide, while he did better there were still many outbursts with kicking, hitting and punching. (T 2825). He would get overwhelmed in a large group setting and the aide often had to remain behind with him while the group was transitioning to another activity. (T 2825).

[REDACTED] is the head of school at [REDACTED], a small pre-school with a dual language curriculum. The student was accepted in August 2016 and they first met when [REDACTED] was called to his class because of behavioral issues. Even in a class of 10-12 students with a teacher and an assistant, the student could not sit still in circle time, had difficulty transitioning from class to class, would not follow instructions and when he became very angry would bite, kick and punch students and staff. (T. 2902-06). Almost every day, [REDACTED] had to intervene and take him to his office. They would talk, draw or play chess and in a 1:1 situation the student was calm and respectful. (T. 2907-10). Despite the intervention of a SEIT for two hours daily and the presence of a family member, the student was asked to leave the school in November. (T. 2913-14).

[REDACTED] was the student’s teacher at [REDACTED] from April through June 26, 2018. Before that she taught another class but as there was one room of 18,000 sq. ft. containing 14 students, ages 5-14, in grades kindergarten through 8th arranged in three groups, she had the opportunity to observe him from the beginning at lunch and during breaks. (T 3110-11, 3173-75). She was not involved in developing his program but attended weekly meetings where all students were discussed. (T 3124). The school was established in 2016 to service students with average or higher IQ’s who because of behavior and social/emotional difficulties were often kicked out of school. There were small classes with a lot of staff so 1:1 or 2:1 situations were possible with fewer distractions. (T 3109-10).

The student received two report cards, for the fall semester prepared by his former teacher and for the spring semester prepared by the witness. (Ex Z and AA). The school used the NYS common core curriculum for reading, writing, math and science. (T 3140-41). He was in a class of seven students, but this was broken into groups of three or four for different subjects. (T 3150). He showed progress in math advancing to the 2.5 grade level, in reading even though it was something he did not like to do, advancing from pre-k to end of first grade level. He also learned to finger-spell about 20 signs in ASL to help him express his feelings nonverbally and in choice time, he learned to knit and work with fiber. (T 3139-44).

Behaviors became less disruptive and explosive as he got used to the culture and protocols. (T 3145). The staff was trained in de-escalation methods at the Crisis Prevention Institute. First step was to try verbal de-escalation that worked about half of the time. The next step was a gentle hand on the shoulder and if that did not work, he would be restrained with his hands crossed in front of him. (T. 3146). While he had difficulty making and sustaining friendships, he was interested in doing so and social rewards such as group participation were used. (T 2147). By the end of the year the frequency of outbursts had gone from ten a day to a few a day. (T. 3147). He was getting along better with his peers and seemed to enjoy school. (T. 3148). There were licensed providers for OT and counseling (T 3151-52).

Findings of Fact and Decision The purpose of the IDEA is to “ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living.” 20 U.S.C. §1400(d)(1)(A). State and local education agencies are required under federal laws to identify children with disabilities and develop annual IEPs for each child. 20 U.S.C. §1414. The IEP is a comprehensive document developed by a team consisting of parents, teachers and other school administrators. It outlines the goals of a student and the special education and related services needed to meet those goals. Id. A FAPE is offered to a student when: (a) the DOE 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 a student to receive educational benefits. Bd. Of Educ. v. Rowley, 458 U.S. 176, 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005).

The IDEA requires that a FAPE be tailored to the unique needs of the disabled child by means of an IEP prepared at a meeting between a qualified representative of the local educational agency, the child's teacher and the child's parents or guardian. The IEP consists of a written document containing: (1) a statement of the present levels of educational performance of such child; (2) a statement of annual goals; (3) a statement of the specific educational services to be provided to such child, and the extent to which such child will be able to participate in regular educational programs; (4) the projected date for initiation and anticipated duration of such services; and (5) appropriate objective criteria and evaluation procedures and schedules for determining, on at least an annual basis, whether instructional objectives are being achieved. 20 U.S.C. §1414(d). In developing a particular child’s IEP, a CSE is required to consider four factors: (1) academic achievement and learning characteristics; (2) social development; (3) physical development; and (4) managerial or behavioral needs. Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 107- 08 (2d Cir. 2007).

In evaluating whether the DOE has complied with the procedural requirements of the IDEA, a hearing officer must consider whether the alleged procedural violation either: (1) impeded a student’s right to a FAPE; (2) significantly impeded the parent’s opportunity to participate in the decision making process regarding the provision of a FAPE; or (3) caused a deprivation of educational benefits. 20 U.S.C. §1415(f)(3)(E)(ii); See also, Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415 (S.D.N.Y. 2007); Application of a Child with a Disability, Appeal No. 07-007. While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA. Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003); Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at 10 (S.D.N.Y. Feb. 9, 2007); Application of a Child with a Disability, Appeal No. 07- 046.

A school district may be required to reimburse parents for their tuition costs if it fails to offer a FAPE, the school selected by the parents is appropriate and equitable considerations support the parent’s claim. School Committee of Burlington v Department of Education of Massachusetts, 471 U.S. 359 (1985), Florence County School District Four v Carter by Carter, 51.S.Ct. 7 (1993). Under the IDEA 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 is reasonably calculated to enable the student to receive educational benefits. Bd. of Ed. v Rowley, 458 U.S. 176, 206-07 (1982); Cerra v Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2005). Mr. and Mrs. A. ex rel. D.A. v N.Y.C. D.O.E., 769 F.Supp.2d 403 (SDNY 2011), M.F. v N.Y.C. D.O.E. 11-CV-6526 (SDNY June 4, 2013) and D.C. v N.Y.C. D.O.E. 12 Civ. 1394 (SDNY March 26, 2013) allow for direct payment to a nonpublic school if a family’s financial circumstances so warrant.

The Second Circuit has determined that “a school district fulfills its substantive obligations under the IDEA if it provides an IEP that is ‘likely to produce progress, not regression’” and if the IEP affords the student with an opportunity greater than mere ‘trivial advancement.’ Cerra v. Pawling Cent. Sch. Dist., supra, quoting Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998); in that it is likely to provide some ‘meaningful’ benefit, Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997).). To meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances”. Endrew F. v. Douglas Cty. Sch. Dist, 137 S.Ct. 988, 995–96 (2017). However, a school district is not legally obligated to develop an education plan that maximizes the potential of a student with a disability. Bd. Of Educ. v. Rowley, supra; See, Grim v. Rhinebeck Cent. Sch. Dist., supra; Walczak, supra. The hearing officer must additionally consider whether this educational program places the student in the least restrictive environment. Carlisle Area School v. Scott P., 62 F.3d 520, 535 (3d Cir. 1995).

I

Prong 1 - Did the District Provide a FAPE

There is no claim by the parent that there was any defect in the composition of the CSE meetings nor with the exception of the FBA is there any challenge to the appropriateness of the evaluations or other material reviewed by the IEP team. I will address the parent’s specific objections below.

Classification The parent argues that ASD rather than OHI was the appropriate choice for the student’s primary disability, relying heavily on the testimony of Dr. [REDACTED] who labeled OHI a “wastebasket term”. (T. 2678-79). Dr. [REDACTED] in his letter of August 22, 2017 included attention deficit hyperactivity disorder (ADHD) as one of three diagnoses. And from the testimony of the mother, the social worker, Dr. [REDACTED] and [REDACTED], there is no doubt that ADHD impeded the student’s ability to function in an educational setting.

Although Dr. [REDACTED] testified ASD should trump any other diagnosis as it requires specific educational expertise and services, he had not in fact made an official diagnosis of ASD at the time he wrote his letter. According to hospital records, the evaluation/management progress note from August 13, 2017 lists possible not certain ASD and proposes as a future action to “R/O” that diagnosis. (Ex. 29).

Before he wrote his letter, he did not do standardized observational test (ADOS and ADIS) as he thought it was unnecessary. He testified that he made the diagnosis of autism based on clinical observation of the student in July and August 2017, noting a combination of deficits in social skills, restrictive or repetitive interests or behaviors and a lack of tolerance of transitions. (T. 2628-29, 2677-78). However he continued to place “R/O ASD” and not certainty of ASD on official hospital documents for additional months. (Ex. 30).

In addition, the social worker who had worked with the student from January through August 2017 testified that she did not think of ASD as a possibility until after she was asked about it by Dr. [REDACTED]. (T 2810). Also, the psychologist reported appropriate eye contact and use of language during her evaluation. (Ex D10). Given the uncertainty I find it was appropriate for the CSE to recommend OHI at the CSE meetings in May and August 2017 as the one classification allowed under the IDEA.

FBA

There is no dispute that the extent and nature of the behavioral issues here required this student to have an FBA and a BIP. They had been prepared during the 2016-2017 school year for use in preschool. (Ex D 14 and Ex D15). The District’s witnesses testified that the parent was informed that an FBA would be conducted shortly after the beginning of kindergarten in September. The parent argued that the failure to prepare a new and better version of an FBA as part of the evaluative process prior to the CSE meeting in May 2017 and to have it available for the first day of school constituted a deprivation of FAPE.

Had there been no FBA in existence, it would have been an impediment to preparing an appropriate IEP. Had the CSE continued the prior FBA into the next school year and not recommended a new one for the kindergarten setting, it would have been a deprivation of FAPE. While there may have been some omissions in the existing FBA, combined with other evaluative material available, the CSE had sufficient information to make appropriate recommendations for the student’s problematic behaviors. Hence, I find it was appropriate to defer the FBA until September and did not in this case amount to a denial of FAPE.

Goals

It was not disputed that the student was average to above-average cognitively and did not have academic deficits. Thus, there was no need to have goals on the IEP for academic skills such as reading, writing or math. As reviewed by [REDACTED], the eight measurable goals addressed his main areas of challenge: difficulty in transitioning and in maintaining attention and focus, impulsivity, a deficit in social skills with peers and adults as well as OT goals to improve his motor skills and his ability to focus in the classroom in the presence of visual or auditory stimuli. Even if Dr. [REDACTED] expressed some doubt as to their attainability, the evidence shows that these goals were reasonable and appropriate to address the student’s social/emotional/behavioral needs.

Meaningful Participation of the Parent The parent attended each of the three relevant CSE meetings with either an attorney or an advocate. She spoke of her concerns and argued her requests. She asked for additional meetings and presented new material. Meaningful participation is not the equivalent of prevailing. The District’s refusal to change its recommendations did not necessarily amount to insensitivity or intransigence. The evidence shows that she was listened to but ultimately not heeded. She admitted she was often upset and loud and sometimes walked out briefly to calm down. At the September 13 meeting, she testified that she left her seat and approached [REDACTED]. In order to decide the substantive issues at the hearing, it is not necessary for me to determine the credibility of witnesses and whether or not the parent also made a threatening gesture.

Recommended Placement The CSE made its initial placement recommendation – of general education plus related services of counseling, OT, behavior intervention by a BCBA and parent training - at the May 24th meeting and retained it at the two subsequent meetings in August and September. The addition of a full-time aide was not a change but rather a correction to include something that was inadvertently omitted from the earlier IEP.

There was considerable testimony about the existence of a response to intervention (RTI) class that would be smaller than a full-size kindergarten class of as many as twenty students but this does not appear on the IEP. In fact, according to [REDACTED] the CSE team could not recommend this class since the composition of all general education classes was the responsibility of the principal. The principal’s secretary testified that the number and identity of students in that RTI class was fluctuating and could change up to the beginning of school. The court held in R E v NYC DOE, 694 F3d 167 (2d Cir. 2012) that a parent is entitled to know exactly what is mandated for the student as only that which is on the IEP – and not discretionary options - are enforceable. Hence the evidence about the RTI class is irrelevant and the recommendation must be considered to be for a general education class of possibly 20 students.

The evidence is compelling that the student did not do well in preschool general education settings in 2016-2017. Due to his significant disruptive and aggressive behaviors, he was asked to withdraw after less than two months from [REDACTED] where he was in a class of 10-12 students with two teachers and had a SEIT for two hours a day. He then attended a county preschool program in a general education class of 17 or 18 students with two teachers. Even with a full-time aide, related services, a behavior intervention plan and increased hours of counseling, his behavior led to his school day ending early for much of the year. And during the summer of 2017 after one day he was transferred from a general camp setting to a smaller special education group – a less relevant factor as summer camp is not as structured a setting as school.

His educational history alone creates doubt that the placement recommendation meets the standards of Rowley and Endrew F, one that was reasonably likely to provide meaningful educational benefit to the student given his circumstances. All agree that he is average or above cognitively and fully capable of learning. The challenge is to address his behavior so he will be focused, regulated and able to remain in the classroom for academic instruction. There are also safety concerns to others gin light of his potential for violence.

Turning now to the specific components of the recommendation for kindergarten, while it is similar to what he received the year before – i.e., OT, counseling, parent training and a full-time aide - it included for the first time two hours of weekly instruction for the teacher and his aide from a BCBA to assist them in working with the student. In addition, the BCBA would perform an FBA and develop a BIP. I credit [REDACTED]’s testimony that this addition would be valuable but given the frequency and severity of his behaviors, it is difficult on this record to find it would be sufficient to enable the student to be maintained in the classroom.

There were several other differences from the prior year: he was a year older and the social worker reported that he was now taking medication. But as of the date of the second IEP meeting the medication did not appear to be making a significant difference in his behavior as in late July he had the uncontrollable tantrum that lead to the visit to the emergency room.

Although the parent emphasized the letter written by Dr. [REDACTED], I have largely discounted its recommendations. First he was confused in both his testimony and his letter about what the District had recommended and what he was supporting. Either based upon information from the mother he understood that the student had been recommended for a self-contained special education class (T 2539, 2574-75) or he knew that the student would be in a regular education classroom with a 1:1 aide. (T. 2551-52). Second the contents of the letter were greatly influenced by information from the mother about “twice exceptional” children and her choice of placement and not from any personal knowledge on his part of [REDACTED]. Third while it is clear that he believed a self-contained class was harmful (“a pathway to more failure”), I find somewhat vague his recommendation of a “highly specialized educational setting both emotionally guiding and academically stimulating”. And based upon the evidence about [REDACTED] as discussed later, that setting did not supply “a small structured sensory based educational program” with trained professionals to monitor and actively manage his social interactions and provided academic challenges.

Under the IDEA the district must endeavor to recommend the least restrictive environment for each student. The credible evidence supports that this parent was eager for her son to remain in general education so he would have the opportunity of learning the standard curriculum with his intellectual peers. Both [REDACTED] and [REDACTED] testified that because some kindergarten children are socially immature, the District’s curriculum included social skills training and that in their experience other similar students had been successful in a general education class. (T. 1173, 1692, 452-53, 539, 832, 461, 985-8). It is also clear that the District had very limited placement choices for a bright student with significant social and behavioral issues. After carefully reviewing the extensive record, I find that the CSE was too hopeful given his prior school experiences and his continuing frequent disruptive and aggressive behaviors. The placement recommendation did not provide sufficient supports to make it likely the student would make meaningful progress and hence while least restrictive did not provide a FAPE for the 2017-2018 school year.

II

Prong 2 - Parent’s Unilateral Placement

Under Burlington/Carter the parent has the burden of proof as to the appropriateness of the unilateral placement at [REDACTED] and upon my review of the testimony and documentary evidence, I find that she has failed to meet that burden.

[REDACTED] was in its second year of existence. The parent learned of it from a social worker who was known to her advocate and active in an organization for “twice-exceptional” children. The mother in turn passed the name on to Dr. [REDACTED] who was unfamiliar with it. He did not visit or speak to anyone at the school before he prepared his letter but merely viewed its website. (T. 2532-35). I note that despite the parent’s objection to a self-contained class, [REDACTED] is essentially a very restrictive self-contained school with 14 students all with disabilities in one large room, taught in groups of seven or less.

During the 2017-2018 school year the co-founders severed their relationship and one of them who had been the student’s teacher departed, stealing confidential student records and taking with her all six of this student’s classmates, leaving him as the only one of kindergarten age. (T 3290-91). In addition, all of the related service providers left by early February and according to the student’s spring semester report card and his second teacher, not all of them were replaced. There was no speech provider in the spring and a gap in counseling until March. (T 3203-3212). And for a student who had difficulty with transitions, this instability was likely a serious impediment to social/emotional progress at school.

Even had these abrupt changes not occurred, there were serious omissions in what this placement provided to meet the student’s needs. First, despite the parent’s argument that the IEP was deficient without a redone FBA and despite Dr. [REDACTED]’s testimony that an FBA was “imperative” for this student, no FBA was ever done. (T. 3192). According to [REDACTED], there was no one available with the credential’s to properly prepare one. (T 3288-89). Second, no document was presented in evidence that described the specific goals that were being addressed. When the mother testified about goals, she described green index cards written by the teacher and sent home that included goals selected by the student himself. (T 2278-87). As to how goals were being tracked and measured, [REDACTED] admitted there were no baselines or measurable criteria to assess progress in many areas and no normed standardized tests administered. (T 3292-95, 3297-98).

The record includes the wo types of reports sent to the parent to describe progress. There was a daily report called a Unicorn DRC, a one-page document with numbers from 1 to 4. Exhibit D 33 is an example dated 5/31/18. According to [REDACTED] these scores were discussed by the teacher and support staff and compiled to reflect a consensus as to the student’s performance that day. There was no key supplied for the parent to understand what the numbers meant. (T 3256-61). Without details and context, I find these subjective indicators were essentially meaningless.

There were two narrative and more detailed semester report cards (Ex Z and Ex AA) though neither contained a starting baseline or measurable behavior goals. (T. 3262-64, 3288). The fall 2017 document was a 13-page report that included summaries by his counselor and speech therapist; the spring report demonstrated the deterioration in services. It was 6 pages and has no report from a speech provider or from teachers of PE, yoga or music. Neither report card indicates any services from an OT. The only mention of OT services was [REDACTED]’s hazy recollection of seeing clinical notes. (T 3199). Thus, the record does not support the provision of the mandated related services.

Also not provided at this placement was parent training by a professional although Dr [REDACTED] testified it was an important component to insure consistency between school and home. (T. 2545-48). The only mention of anything similar was of an online bulletin board organized by parents to communicate and exchange information that this parent used and found to provide a lot of support. (T.2294-95).

Finally, the record is inadequate as to proof of progress in the social/behavioral areas of concern. The testimony of the mother and [REDACTED] focused primarily on progress in reading, math and other academic subjects. But the student’s ability to learn was never the issue. The IEP goals that Dr. [REDACTED] agreed were appropriate if unrealistic, concerned impulsivity, dysregulation as well as improving OT skills. I find that [REDACTED]’s opinion that he got less disruptive and explosive as the year proceeded was not supported by any credible documentation. I also note her limited experience with special education students, primarily at Lindamood Bell, a remediation setting with 1:1 instruction.

I carefully reviewed the record for specific examples of progress in the student’s areas of deficit. [REDACTED] identified as an area of especial progress “his ability to interact with the tools we were giving him” such as by the middle or end of the year, learning to say kind things to peers if he wanted friends. (T 3305-06). The mother talked about increased self-awareness and his recognition of dysregulated behaviors in other students. (T 2289-90). Dr. [REDACTED] testified that the student was happy there and showed improvement in controlling his impulses and refraining from aggression or violence. (T 2479-80, 3148-49).

As to records regularly kept by [REDACTED] that convincingly supported progress in the principal areas of need, there are essentially none, partly because it is unknown how [REDACTED] was measuring progress and possibly because documents were stolen. There are, however, the three incident reports from May 31, 2018 (Ex. D 35-Ex D 37) and [REDACTED]’s testimony that at the end of year, possibly related to the disruption in the environment, he had a hard time with signs of regression and the regular need for restraints and isolation. (T 2965-80, 3183-91, 3285). For all these reasons, I find the parent has failed to meet her burden to prove that [REDACTED] was appropriate in that it provided “educational instruction specially designed to meet the unique needs” of the student. Gagliardo v Arlington CSD, 489 F3d 105 (2nd Cir 2007).

III

Prong 3 - Balance of Equities

This parent was very emotionally involved in the choices for her son’s education. She attended every meeting, took advantage of her right to appear with an advocate or attorney and to supply additional documentation. She was open about her disagreement and the possibility of a unilateral parental placement and gave timely notice of her son’s enrollment at Allied. Hence, I find no equitable impediment to her claim for reimbursement under Burlington/Carter.

ORDER

THEREFORE, IT DETERMINED that

• • The District failed to provide a FAPE for the 2017-2018 school year;
• • The parent’s unilateral placement was not appropriate; and
• • The parent’s request for tuition reimbursement/funding is DENIED.

November 4, 2020

__________________

/s/ Susan Lushing

Impartial Hearing Officer

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 this decision to a State Review Officer 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 New York State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at   http://www.sro.nysed.gov.

NAMES and TITLES OF PARTICIPANTS

For the District

[REDACTED] Esq, Attorney January 17, March 15, April 30, May 17, June 7, July 26, August 2, August 15, October 16, November 20, November 28, 2018; September 10, November 1, December 4, 2019; January 10, 2020.

[REDACTED], Supervisor of Pupil Personnel Services January 17, March 15, April 30, May 17, June 7, July 26, August 2, August 15, October 16, November 20, November 28, 2018; September 10, November 1, December 4, 2019; January 10, 2020.

[REDACTED], Psychologist May 17, June 7, 2018.

[REDACTED], Secretary August 15, 2018 For the Parent [REDACTED] Esq., Attorney January 17, March 15, April 30, May 17, June 7, July 26, August 2, August 15, October 16, November 20, November 28, 2018; September 10, November 1, December 4, 2019; January 10, 2020.

Mother January 17, March 15, April 30, May 17, June 7, July 26, August 2, August 15, October 16, November 20, November 28, 2018; September 10, November 1, December 4, 2019; January

10, 2020.

Father May 17, July 26, August 2, August 15, October 16, November 28, 2018; September 10, November 1, 2018; December 4, 2019.

[REDACTED], Aunt January 17, 2018

REDACTED, Advocate January 17, May 17, July 26, August 15, October 16, November 20, November 28, 2018.

[REDACTED], Psychiatrist September 10. 2019

[REDACTED], Social Worker November 1, 2019

[REDACTED], Camp Director November 1, 2019

[REDACTED], Head of School December 4, 2019

[REDACTED], Assistant Head of School January 10, 2020

LIST OF IMPARTIAL HEARING OFFICER EXHIBITS NUMBER

EXHIBIT

Exhibit Page Count

Due Process Complaint dated 10/25/17

10 pages

District’s Response

24 pages (transcript)

25 pages (District count)

IHO Email re Request for Pendency Order

1 page

Reopening of Pendency Letter dated 12/21/17

3 pages

Order Denying Pendency

7 pages

Motion for Preclusion

47 pages (transcript)

49 pages (District count)

6/5/18 Letter to [REDACTED] from [REDACTED]

4 pages

Letter from [REDACTED] Health to [REDACTED] dated 7/25/18 re Subpoena for patient records.

4 pages

[REDACTED] HIPAA Authorization

1 page

Order Concerning Release of Parent Training Records

1 page

(clarification required)

Amended Order Concerning Release of Parent Training Records

3 pages

District’s Closing Brief May 20, 2020

33 pages

Parent’s Closing Statement May 20, 2020

38 pages

LIST OF DISTRICT’S EXHIBITS NUMBER

EXHIBIT

Exhibit Page Count

1

Application for Transportation

1 page

2

IEP dated 6/23/17

12 pages

3

Prior Written Notice dated 6/21/17

3 pages

4

IEP dated 12/7/16

13 pages

13 pages

6

IEP dated 5/24/17

12 pages

7

IEP dated 5/24/17

10 pages

8

Prior Written Notice dated 5/24/17

2 pages

10 pages

10

Psychological Evaluation 6/8/16

9 pages

4 pages

1 page

2 pages

Functional Behavior Assessment from [REDACTED] Evaluation & [REDACTED] Center dated

4 pages

Behavior Assessment from [REDACTED] Evaluation & [REDACTED] Center dated 12/21/16

3 pages

Quarterly Progress Report Related Service

3 pages

Dr. [REDACTED] letter dated 8/22/17

2 pages

CSE Attendance Sheet dated 8/30/17

1 page

CSE Review Summary Form

1 page

Speech Therapy Annual Progress Report dated 5/17/17

2 pages

CSE Attendance Sheet dated 5/24/17

1 page

Individualized Education Program dated 9/13/17

10 pages

Prior Written Notice dated 9/13/17

3 pages

Annual Review Progress Report Related Service dated 5/22/17

2 pages

Class Roster generated on 8/23/17

1 page

Class Roster generated on 9/7/17

1 page

Letter from Dr. [REDACTED] dated August 2017

1 page

CSE Notes dated 8/30/17

1 page

Evaluation and Management dated 8/14/17

5 pages

Non-Billable Medication Note dated 9/20/17

1 page

Session Notes dated 8/10/17

2 pages

Email chain 8/14/17-8/15/17

1 page

Unicorn DRCs dated 5/31/18

1 page

[REDACTED] Incident Report dated 5/31/18

2 pages

AU Incident Form from [REDACTED]

2 pages

AU Incident Form from [REDACTED] (classroom incident)

2 pages

AU Incident Form from [REDACTED] (classroom and hallway incident)

2 pages

Email thread between [REDACTED] and [REDACTED] Regarding Bookkeeping – Volunteering

2 pages

Letter from [REDACTED] re Subpoena for academic records

1 page

LIST OF PARENTS’ EXHIBITS

LETTER

EXHIBIT

Exhibit Page Count

A 9/6/16 IEP 11 pages

B Classroom Observation from [REDACTED] Evaluation & [REDACTED] Center, Inc. dated date of evaluation - 12/21/16 2 pages

C Quarterly Progress Report Related Service dated 4/24/17 2 pages

D Annual Review Progress Report Related Service dated 5/22/17 2 pages

E Quarterly Progress Report Related Service dated 6/29/17 2 pages

F BIP Progress Report from [REDACTED] for May 2 to May 18, 2017 4 pages

G Quarterly Progress Report Related Service dated 8/25/17 2 pages

H Prior Written Notice dated 8/30/17 2 pages

I Email from [REDACTED] to [REDACTED] dated 8/22/17 re [REDACTED] 1 page

J Letter from Parents to [REDACTED] re the 2017-2018 IEP dated 8/20/17 1 page

K CSE Review Summary Form dated 8/30/17 1 page

L Letter to Parents. from [REDACTED] dated 11/8/16 1 page

M Letter to District from Parents re 8/30/17 CSE 3 pages

N Annual Review Progress Report Related Service dated 4/24/17 2 pages

O Psychological Evaluation and Functional Behavioral Assessment dated 11/13/14 17 pages

P Letter from [REDACTED] Health to [REDACTED] enclosing Prehospital Care Report Summary Booklet dated 1/24/18 6 pages (2 blank)

Q [REDACTED] Master Instruction Services Agreement dated 9/1/17 10 pages

R Schedule of Payments to [REDACTED] with supporting documentation 31 pages

S Not Admitted into Evidence Not admitted

T 2017 Tax Return 2 pages

U 2016 Tax Return 2 pages

V 2017 Tax Return 4 pages

W 2018 Tax Return 5 pages

X [REDACTED] Attendance 1 page

Y [REDACTED] Resume 2 pages

Z [REDACTED] Fall Report Card 13 pages

AA

[REDACTED] Spring Report Card

7 pages

---

Footnotes

[5] Individualized Education Program dated 1/30/17

[9] Individualized Education Program 8/30/17

[11] Educational Evaluation from [REDACTED] Evaluation & [REDACTED] Center dated 12/21/16

[12] Special Education Annual Review Summary dated 2016-17

[13] Annual Review Progress Report Related Service dated 5/22/17