Impartial Hearing Decision

AMENDED FINDINGS OF FACT AND DECISION

Case Number: 179285

Student’s Name:

Date of Birth:

District Number:

Date of Hearing: May 28, 2020

July 13, 2020

September 21, 2020

Record Close Date: April 1, 2021

Hearing Officer: Gary D. Peters, Esq.

May 28, 2020

Attorney Parent

Dr DOE Designee Dept. of Education

July 13, 2020

Attorney Parent

Dr DOE Designee Dept. of Education

September 21, 2020

Attorney Parent

Director Parent

Dr. DOE Designee Dept. of Education

INTRODUCTION

On the above dates, I conducted hearings, pursuant to the Individuals Disability Education Act IDEA, 20 U.S.C. Section 1415(f)(3) regarding a special education program, Students with Disability, New York City Impartial Hearing Case #179285. The hearing was conducted at the Impartial Hearing Office at 131 Livingston Street, Brooklyn, New York or Remotely. The Department of Education, hereinafter referred to as the “DOE” was represented by their Designee, Dr. and the parent was represented by their Attorney

Parent’s Evidence

EXHBT # DATE DOCUMENT

A. Impartial Hearing Request 6 pages November 7, 2018

B. Ten Day Notice 2 pages June 22, 2018

C. 2017 Parent Tax Return 2 pages

D. Contract 7 pages

E. June 20, 2018 Student Intake Recommendations 7 pages August 27, 2018

F. Tuition Affidavit 1 pages December 11, 2019

G. Program Description 9 pages 2018-2019

H. Attendance 1 page 2018-2019

I. Hearing Education Eval. 2 pages July 12, 2018

J. September 24, 2018 Physical Therapy Eval. 4 pages

K. September 28, 2018 Occupational Therapy Eval. 11 pages

L. Speech Evaluation 7 pages

M. April 20, 2019 Recommended IEP 16 pages August 17, 2018

N. Progress Report 9 pages June 26, 2019

O. Schedule 2 pages 2018-2019

P. Parent’s Affidavit 4 pages 9/18/20

Q. Affidavit 23 pages 9/18/20

DOE’S EVIDENCE

None

BACKGROUND

The student hereinafter referred to as isa student with a disability who has been known to the CSE for several years as a result of her significant and complex educational needs/medical needs. was diagnosed with microcephaly, significant muscular delays, Chromosome 22 deficit, and chronic lung disease, among many other issues. She is non-verbal, short in stature, dependent for all activities of daily living and requires g-tube feeding. She uses an adaptive stroller for transportation, rifton chair and a supine stander with knee straps. She has global delays all across all areas of development.

An JEP meeting on May 25, 2018 was conducted to develop a program for the 2018-2019 school year. was classified with Multiple Disabilities and a 12:1:4 program was recommended with related services in duration of 30 minutes. The parents maintain that this recommendation is insufficient and inappropriate to address her individualized needs, in light of her specific circumstances. THE DEPARTMENT?’S POSITION:

Dr. on behalf of the DOE stated that the recommended program offered by the DOE was appropriate and that the program unilaterally selected was “questionable at best”.

PARENT’S POSITION

The CSE team was not duly constituted, as several required members were not present, including anyone expected to teach under this IEP or with experience in the recommended setting. Additionally, that the team did not conduct, secure, or rely on sufficient evaluative measures to make a determination of __'s present levels of performance, and areas of needs, including functional behavioral needs.

At the IEP meeting, the team recommended a 12:1:4 program for despite the fact that she was attending the and receiving intense levels of services. Her level of services was reduced to 30-minute sessions, which is not supported by any documentation and is not in line with the severity of her needs.

The Parents expressed their objection to the recommended program as did the school that she was attending at that time because of concerns that their daughter would be placed with students who displayed needs far too different from hers. They also stressed the need for her to be in a small, structured classroom setting grouped with students of similar disabilities and strengths. The CSE members of the team proceeded with their recommendation, based on the programs available within the DOE notwithstanding these concerns. The CSE team failed to meaningfully review any goals, management needs, or assistive technology, communication device needs with the parent at this meeting. The team also failed to develop a behavior intervention plan to address S crying and frustration which were noted as intervening behaviors. The Parents did not receive a copy of this IEP at the meeting. Upon reviewing the IEP the Parents noted that it did not adequately describe ’s strengths and weaknesses or the results of evaluations and state tests; it did not adequately note the Parents' concerns regarding the need for a continuation of a program similar to the one she was attending. Also, while the IEP notes that is short in stature, the parents’ concerns over her safety due to her small size and complete helplessness were not noted.

The management needs recommended in the IEP did not address all the issues discussed or identified at the IEP meeting and were insufficient to adequately support in the recommended program. The IEP did not contain adequate program modifications and supports to address the management needs that were recommended.

The annual goals and objectives recommended on the IEP were vague, failed to address areaof ’s deficits. The goals failed to specify a baseline of functioning or to explain by what means the goal would be consider achieved. Measuring a goal once per quarter for a child with such significant delays is not sufficient and does not take into account her individual needs.

The DOE failed to meet its burden of showing that it offered a FAPE. The program recommended for was not consistent with or supported by the weight of the information provided and available to the team. The program failed to provide a setting suitably structured and supportive to meet __’s needs, especially in light of her most recent educational setting, which was much more therapeutic and supportive than the proposed 12:1:4 proposed for her. The program did not include adequate supports to address the student’s management needs or achieve the recommended annual goals. The Parents remain concerned that the program, services, and supports in the IEP created for are insufficient to provide her a FAPE. A Prior Written Notice and School Location Letter ("Placement Letter") dated was received by the Parents. However, no specific placement was identified in the letter. The parents continue to be concerned about the ability of program type to provide a FAPE and the rationale for this recommendation. The parents are familiar with the 12:1:4 model and do not believe ’s need for 1:1 support, redirection and total support for all activities of daily living can be met in this program. The large class size is concerning to them, as ’s needs are complex and she is very small in stature. *s placement at the was appropriate.

THE PARENT’S CASE

The Parent also referred to as stated that ’s birthday is February 21, 2013 and that she is classified with Multiple Disabilities; she has significant, complex, and global delays that affect all areas of learning. She was diagnosed with microcephaly, significant muscular delays, Chromosome 22 deficit, and chronic lung disease, among many other issues and is non-verbal. has global delays all across all areas of development. The Parent stated that her daughter is short in stature, which is a safety concern, is dependent on adults for all activities of daily living and requires g-tube feeding. She uses an adaptive stroller for transportation, a rifton chair and a supine stander with knee straps. All areas of her motor functioning, both fine and gross, are significantly limited and she is unable to stand, walk or attend to her toileting needs without adult assistance. has highly intensive management needs, which require 1:1 intervention for the entire day.

Prior to attending the School, attended i) center-based pre-school which the District recommended. She was in a 6:1:2 program due to her need for intense structure and supervision. On May 5, 2018, the CSE held a meeting for the 2018-2019 school year. At this meeting, the CSE continued its 12:1:4 recommendation with related services and a paraprofessional. The Parent disagreed with the recommended 12:1:4 program as requires a smaller classroom setting due to her significant and global developmental delays as well as her small physical stature. She disagreed with the duration of the related services because requires additional time for regulation and transition to benefit from the related services because she has significant and multiple disabilities. She disagreed with the failure to recommend augmentative communication, to develop academic goals as she displays the ability to learn and it is her belief that she can develop academic skills. Additionally, she disagreed with the failure to recommend assistive technology for her non-verbal child, the failure to develop a behavior intervention plan to address her attention, crying and frustration which she would require to attend the recommended placement. Furthermore, the management needs listed were not sufficient to address her special education needs especially in a 12:1:4 program .

The IEP was not translated for her and she did not receive a school placement. The Parent believed the recommended program could pose a safety risk for given her limited mobility, coordination, and poor voluntary movement. The district did not conduct new evaluations prior to changing her program from a 6:1:2 center-based program to a 12:1:4 program and alternate program was not recommended.

The IEP fails to provide adequate program modifications and supports to address the management needs that were listed in *s IEP.

submitted an affidavit in lieu of testimony and stated that she is currently employed at the (“ ”), located at New York, as the school’s Education Director. She earned a bachelor’s degree from and a Master’s degree in Special Education from . She is certified by New York State in Special Education, for students from birth through age 21; she also has a Master’s in Social Welfare, and is working on her doctorate.

The Affiant stated that she has been in the special education field for about 20 years and worked with children of all ages from birth to 21. As ’s Educational Director, she is responsible for hiring and supervising teachers. She supervises 11 teachers, and works with them on their teaching practices and to develop and differentiate the curriculum for children ages 5-21. The curriculum accommodates a range of special needs that is represented in the student body, including developing curriculum for students with limited capacity for communication. She reviews student’s IEPs, supervises assessment planning, participates in goal development, supervises classroom practices, coordinates planning school-wide, coordinates, meet with clinical specialists, and plan team meetings. Ms. described her responsibilities; she visits each teacher in their classroom, and spends time with students during class time, so that she gets to know the children during their school day and observe how they interact with teachers and service providers.

For the 2018-19 SY there were 68 students in the school from 5 to 19 years of age; there were 8 classes wherein students were grouped by age, development level, and their ability to learn and interact in the classroom. is an independent school for students who are severely disabled, including student with Traumatic Bain injuries, multiple disabilities, vision impairments, medical issues, cognitive delays, significant mobility issues and other medical conditions. Many of the students use wheelchairs or devices for modified mobility. The students are non-verbal communicators and must use some kind of augmentative communication device to communicate. “We have a great deal of experience in educating children who suffer from brain injuries and have multiple disabilities which include complex medical needs such as seizure disorders and feeding through feeding tubes”. The staffing for the 2018-19 school year included 8 teachers, 2 school nurses, and 35 related service providers including 10 speech therapists, 9 physical therapists, 9 occupational therapists, 4 vision therapists, 1 social worker, 1 Hearing Teacher, 1 Adaptive Technology Specialist, Director of Assistive Technology, and Director of Speech and Language Pathology, along with 61 paraprofessionals. All of the related service providers are certified and/or licensed. The Director of Assistive Technology, MS/OTR/L, PhD, has a master’s degree in OT, and a doctorate in education with a focus on literacy for students with significant disabilities. Dr. assists the entire school in identifying and acquiring appropriate technology, software, and voice output communication aids to assist in students’ education. As Director of Assistive Technology, she facilitates assessment, development, acquisition, management, and implementation of technology as a means to enhance students’ learning and development. She collaborates with *s multidisciplinary team of teachers, occupational therapists and speech and language pathologists to interface multi-level technology and approaches to teaching and learning and coordinate development of accessible educational materials. The Director of Speech is , MS CCC-SLP. She is a speech and language pathologist with specialization in assistive technology and feeding as well as speech and language development, with 20 years of experience specifically with children and young adults with complex communication needs and multiple disabilities. In addition to providing direct clinical support to individual students, she supervises a team of SLPS. Her expertise in assessing children for assistive technology to ensure that each student at has some form of alternative communication when verbal speech is not present or is not developing as expected complements her expertise in language development, feeding, and oral motor disorders.

Ms. stated that “We provide small classes with a high student-to-teacher ratio, classes range from 6 to 8 students led by one teacher. Each student is assigned one paraprofessional, who is with them throughout the school day; and in some cases, students have their own nurse. The service providers use a combination of push-in and pull-out when working with students. Service providers will commonly push into classrooms to support students as needed, in addition to 1:1 session that will take place in a dedicated therapy room. Service providers push into classrooms and work in close collaboration with the special education teachers to enable students to access the learning materials, communicate what they understand, and to make sure the students are able to apply skills they learn in therapy sessions in the classroom and provide intensive occupational therapy, speech and language therapy, physical therapy, hearing therapy, and vision therapy as needed. Services are provided in 60-minute intervals as the instructional day at the school day begins at 8:30 am and continues until 4:00 pm . At ; educational and therapeutic decisions about the location, group size, intensity, and duration of interventions are based upon individual student response to intervention, similar to a Response to Intervention (RTI) model”. This model allows the staff to adjust interventions as often as is necessary based upon the child’s response to the intervention, to maximize their learning.

Occupational Therapy (OT) at includes daily living skills, such as tooth brushing, toileting, feeding, and personal hygiene, to support student participation in those activities of daily living. The OT department supports communication, by helping non-verbal children with significant motor disabilities access alternative communication devices. The goal is to assist the child in adapting their motor skills to participate in the activities of learning in a school setting as fully as possible. In 2018-19, there nine occupational therapists on staff, all of whom have a master’s degree

Physical Therapy (PT) at is geared towards two major areas. First, to prevent regression and maintain a child’s current level of mobility. It is crucial to ensure the child is actively participating in a variety of movements and positioning throughout the day. The second focus is to increase strength and mobility as much as possible, which includes the social aspect of motivating a child to do things that might not always be comfortable (such as stretching). The PTs are skilled in supporting and motivating our children, as well as being knowledgeable in anatomy and the physiology of children with limited mobility. During SY 2018-2019 we had nine PTs on staff, and all of our PTs are licensed physical therapists.

Speech therapy at is a vital part of the program as there are students on the whole continuum of communication, from non-verbal non-symbolic communicators to students who are verbal. The speech-language pathologists support students and help them learn how to communicate their needs and wants. The staff motivates students and they are experts in oralmotor and language development, as well as assistive technology. therapsits work to motivate students to communicate and therapeutically address challenges related to oral motor function, including feeding and swallowing as well as verbal communication. Wherever a student is on the continuum of verbal communication ability, our team is qualified to work with them to support their development of new communication skills. The pathologists also work on assessing students for assistive technology. During the 2018-19 school year, had 10 speech-language pathologists on staff, and they all have master’s degrees.

Vision therapy at is important, as many students have cortical vision impairment, which is a brain-based disorder that impacts how students use their vision, students who are vision impaired, or legally blind. The vision department is capable of serving the needs of all of our students with vision issues. During the 2018-19 SY there were 4 vision therapists on staff, who all have master’s degrees.

Additionally, as many of the students struggle with daily living skills, there are intensive supports for them. The students require full support for their activities of daily living, which is one of the reasons that each student has a 1:1 paraprofessional. The tuition includes the costs of the paraprofessionals. We include goals for toileting, hygiene, and hand washing as part of student development; there is a routine schedule of toileting and feeding, which supports learning as well as health and hygiene.

At , ADL proficiency is addressed across therapeutic domains (1.e. speech and OT); by integrating communication and active participation, aims to promote self-advocacy as an element of independent, active participation in activities of daily living. is designed for the entire student population; every child has an appropriately adapted toilet seat and there are an appropriate number of bathrooms with adaptions and private changing areas attached to each classroom or in a separate toileting area. There is a dedicated elevator for students entering and exiting the school, and a second elevator reserved for emergencies or situations where large numbers of students are travelling at once, such as school-wide events.

Students are educated about the multitude of cultures that are present in New York City; there are discussions about a wide range of holidays, how they are celebrated and incorporated students' experiences into our curriculum. Students were taught to understand what is going on in their social and cultural environment and recognize that students learn about a variety of cultural observances throughout the calendar year. Holidays, such as New Year’s, Martin Luther King Day, or Independence Day, are culturally as well as personally meaningful days. Learning about these days along with the cycle of the year is one way that students can tie the yearly cycle of the culture at large to their own personally meaningful cycle of birthdays and other family observances. This helps students connect their family and school communities with the world as a whole. There are visits to the community library and a local pool where students benefit from swimming supported and structured with their OTs and PTs. During the 2018-19 school year students went to the circus, the New York City Ballet studios, where they met Ballet company members and were exposed to costumes and music. Outings are planned as part of the students’ academic or therapeutic development.

A certified special education teacher, who is also a professional musician, comes to once a week to teach music. She has the students participate in performing songs and will modify her songs to incorporate vocabulary and communication skills the students are working on in class. There are musical performances at the school, which the students get to observe. On Fridays, the PT department interprets each child’s physical needs through Yoga. Students receive their 1:1 sessions, through yoga positions and practice. This allows students to continue the work they are doing in PT, but also incorporate a new movement vocabulary such as a focus on breathing and stretching. Additionally, every year, our PT department organizes ‘Olympics’ for the students, where they based up their PT and OT needs and strengths, and the students get the opportunity to participate in social games and activities using their bodies.

All of the teachers hold master’s degrees or are in the process of earning master’s degrees. The teachers hired who are still working towards their master’s degrees are uniquely qualified individuals who have undergraduate special education degrees and have worked in our classrooms as paraprofessionals previously. All of our service providers have master’s degrees. We require the same qualifications as the DOE for faculty and staff. At , there are professional development opportunities both internally and externally for our faculty and staff. The affiant participates with the admissions process at ; the school has a rigorous screening process for applicants and would not admit a student if we were not able to meet that student’s needs.

Ms. stated that was a new student at for the 2018-19. She supervised her teacher, , directly and had numerous opportunities to observe throughout the 2018-19 school year. Ms. has a master’s degree in special education and is certified to work in special education, K-21.; she is completing a program to obtain certification as a Board Certified Behavior Analyst (BCBA).For the 2018-2019 school year.

was in a class of 6:1:1, with her own para-professional; she is a student with complex educational and medical needs. In the course of the 2018-209 school year, her teacher and therapists worked with her to support her engagement and use of voluntary movement to increase her purposeful participation and communication. Though she presents with significant deficits, within the classroom environment she was supported in exploring materials for sensory-motor learning. is exposed to use a variety of materials to enhance multisensory learning, including painting, paper, play-dough, clay, writing and drawing materials (markers, crayons etc.) and cooking activities. She works with hand over hand assistance when working with a variety of materials during activities with repeated directions. responds appropriately through vocalizations and using her step-by-step switch with cueing from a facilitating adult (teacher, therapist, paraprofessional).

The support of the team has been extremely important in shaping ’s response to classroom routines, peers, and educational materials she encounters as a student. Without supervision, when holding items, frequently uses them inappropriately and in an unsanitary manner. She frequently bangs items on her desk or brings them to her lips. The education and therapeutic team noted that she was inconsistent with choice making, which may be due to difficulties maintaining visual and auditory attention. Therefore, highly motivating activities (computer games) were used to help her sustain attention longer so she could make the connections between cause and effect as she activated jellybean switches to make choices base upon personal preferences.

’s strength in expressiveness and her interest in engaging with others supported this process. During the school year, she increasingly attended and participated in classroom routines.

By the end of SY 18-19 —_’s teacher reported that she had been actively participating during morning meetings, using her switches with moderate verbal prompts Her brain injury affects her cognitive development in various and significant ways; it impairs her volitional movement, exploration, and communication. These musculoskeletal limitations affect her ability to use her hands for independent exploration of materials, and use of materials to learn how to write, or even to turn pages of a book. These limitations as well as others associated with her diagnoses, are taken into account to develop her education program, so that she has robust opportunities to learn. uses a “jelly bean” switch to access academic and leisure activities, including electronic books, writing with the alternative pencil, computer games, music, toys, and art.

The progress reports written for the four quarters of SY 2018-19 are accurate representations of — ’s needs as well as her goals. The reports document her progress in all domains. She required both academic and related services goals as reflected in her intake/admissions documents, her progress reports in all domains, and the IEP for the subsequent school year (2019-20), which reflected assessments and analyses of progress in the third quarter of SY 2018-19. ’s classmates for the 2018-19 SY were 6, 7 and 8-years old and required similar levels of support in all activities of life. fit well into her 2018-19 classroom. She learned to use a variety of low to high technology communication supports, including picture symbols, a switch activated voice communication device, and a speech generating device. For communication, used a variety of low to high technology communication supports, including picture symbols, a switch activated voice communication device, and, with maximum prompting and cues, a speech-generating device. continued to benefit from modeling and navigational support as needed, as well as moderate to maximal verbal prompts, tactile prompts to hands and/or side of face, and tapping to the switch, device, and/ or picture symbols.

Based on the clinical opinion of Director of Speech & Language Pathology , the ACC device is a key and important educational tool, which allowed to have greater access to educational materials and improve participation in academics, communication and social interactions.

At ; received support from her paraprofessional throughout the day. She received help with dressing, and undressing including putting hats and coats on in the winter. She required help with eating, drinking, and toileting throughout the day. Her paraprofessional provided her with constant daily support with her daily living needs. The consistent participation of — ’s paraprofessional increased integration of communication and behavioral routines so that she could communicate and be understood across school settings.

participated in excursions into the community during the 2018-2019 school year. She was happy to participate in excursions and benefitted from the time she spent outdoors in the community. She participated in structured visits to local playgrounds with her OT and PT. The witness stated that was a happy child in school during the 2018-2019 school year; her level of engagement to tasks, appropriate social responses, and variety of responses increased during the 2018-19 SY.

At ; showed academic progress during the 2018-2019 school year. She learned new skills, mastered new concepts, and made progress as a learner. For example: made progress with her ability to communicate. She learned to use switches more readily and increasingly through the 2018-19 SY. She also learned to use a variety of picture symbols to use within classroom instruction, attend to the screen when being instructed, activate items at various points on the screen and match an activity to its corresponding symbol. By the end of the school year, has been actively participating during morning meetings, using her switches with moderate verbal prompts. She likes to be the weather reporter during the morning meetings, which involved understanding expectations within the routine and selecting symbols to communicate a response. began to understand the elements of the alphabet, including gaining familiarity with the letters of her name. She is classified as ‘emerging’ in her literacy development, gaining understanding of concepts of print and alphabetic awareness. Given that she cannot vocalize letter sounds or scribble letter forms, she has access to multisensory letter representations, including foam letters (she often prefers to select the letter ‘A’, as in her name) and an ‘alternative pencil’, a flip chart that allows her to review the alphabet with a partner stating and showing the letter.

Furthermore, in other areas of literacy development (comprehension) participated in group instruction, identifying feelings based upon symbols, associating her peers from their pictures (and knowing who was in the room), as part of a daily routine. In math, she began to demonstrate a preference for certain colors over others (blue is a preferred color) as a precursor for differentiating color as an attribute. In summary,due to her physical and developmental challenges, the establishment of intentional expression (cause and effect, meaningful reaching, understanding symbols) and sustained attention are foundational steps for learning. She made significant progress in her academic goals because of the foundational skills she established. was observed to react to motivating activities, such as music and cause and effect computer games, by locating and activating the switch connected to a voice output communication aid on the left side of her tray to indicate ‘more.’

Initially, primarily communicated feelings, as well as acceptance and rejection of an activity, through body language and facial expressions. She expressed herself by smiling, laughing and a relaxed body for happy or content, and crying, pouting, and tense body for pain or discomfort. By the final quarter of SY 2018-19, the SLP reported that when presented with 3 picture symbols on an e-tran board (a plexiglass board with symbols attached to the corners that permits clear perception of where is looking), with one being “something else,” is beginning to match an activity to its corresponding symbol by directing her gaze and/or activating the switch on the middle of her tray, which was connected to voice output. Overall, made progress as a student during the 2018-2019 school year; she made notable progress across domains, including academic, occupational therapy, speech therapy and physical therapy. Her emerging skills in language, selfregulation, focusing and attention supported increased participation in classroom routines. During the 2018-2019 school year made great strides in terms of her ability to communicate with attention and accuracy. As noted above, due to her physical and developmental challenges, the establishment of intentional expression (cause and effect, meaningful reaching, understanding symbols) and sustained attention are foundational steps for learning.

She made significant progress in her communication and academic goals because of the foundational skills she established. This level of progress in communication and academics reflects the integration across domains including assistive technology (high and low technology), occupational therapy (effective points of access), speech therapy (use of symbols and meaningful communication), and physical therapy (positioning, strength, endurance, flexibility) all within the educational and social environment of the classroom.

Overall, she met goals, and made concrete progress as a communicator during the 2018-2019 school year. made progress in her other services. She remained engaged in all her interventions throughout the year, She made progress in PT. She made progress in OT as well, in. She achieved a lot and made real progress during the 2018-2019 year, in light of her unique circumstances as a child with significant educational needs. appeared to enjoy being part of the community where she was enjoyed and accepted for who she is: a unique, motivated, happy learner who can access education through the appropriate use of instruction, augmentative communication, assistive technology and all of the supports and accommodations provided by the . She learned what to expect when she was in school and benefitted from her routine. She became familiar with routines and demonstrated through her increased regulation that she was a part of our learning community.

Ms. opined that benefitted greatly from her placement at during the 2018-2019 school year. ’s receives all nutrition by G-tube, however, feeding and oral motor goals continue to be addressed, to improve secretion control and work toward safely eating by mouth. To address these goals speech therapists use a combination of facial massage to the cheeks and lips, as well as intra-oral stimulation with a flavored tongue depressor and/or lemon swab. According to the SLP report, at the end of SY 2018-19 was able to initiate and swallow secretions in response to flavored tongue depressor and/or cold toothette in 4 out of 5 trials, with minimal anterior spillage of secretions observed. continues to benefit from minimal jaw support and verbal cues to swallow secretions depending upon level of alertness. ‘s physical needs were addressed by following PT instructions for positioning in the classroom. worked to improve her lower extremity muscle strength during sit to stand transfer and weight shifting activities, during side and forward stepping activities with maximum assistance with Bilateral AFOs or KAFOs in order for her to achieve this goal.

During the 2018-19 SY, worked on access points for communication, writing, ADL, play, and use of her hands in OT. She made progress in terms of improving her ability to engage in all aspect of classroom instruction and arts/craft activities. OT worked to increase her ability to use an alternate pencil (a flip chart designed to provide both receptive and expressive access to the alphabet) to choose 5-10 letters. The OT worked with to increase her participation in all activities of daily living, including toothbrushing, toileting, and self-feeding.

During SY 2018-19 solidified her skills as a symbolic communicator, establishing consistency in using symbols to respond to closed-ended questions; throughout the year, she showed increased interest in reading and writing and symbolic content (i.e. characters). also worked on foundational math skills to learn about attributes (color, shape, size) allowing students to sort (same/different, more/less) as a basis for developing mathematic thinking and skills. Through direct instruction and project-based learning for a variety of classroom projects, she demonstrated emerging ability to choose colors based on preference. Her attention and familiarity with these attributes and her ability to compare is emerging. worked on social skills daily, in whole (6:1:1) and smaller group instruction in the classroom. ’s instruction included identifying peers who came to school, recognizing names of peers, peer awareness, and creating a social environment.

is a very social person who enjoyed this level of social participation and engaged in more appropriate greetings and eye contact as the year progressed. In addition, she became familiar with the social routines and increasingly, with prompts and cues, responded using symbols, VOCA, and high technology communication systems. received speech, 4x60 1:1 weekly. In speech she worked on comprehensive speech and communication skills, as well as feeding skills, learning to communicate using her speech as well as a variety of appropriate technology, so she could actively choose and comment as part of social and academic communication. made progress in speech. received occupational therapy (“OT”) for 5x 60 min 1:1 weekly. She worked on play skills, ADL, manual skills, access to communication, and writing with the alternative pencil received physical therapy (“PT”) 5x 60 min 1:1 weekly. She worked on strength, mobility, transitions, and flexibility. requires her therapies to be provided in 60-minute intervals. She requires this time with each therapy because it enables a warmup and allows time for her to be an active participant as opposed to being passively stimulated. With her own active participation in the therapy she can make meaningful progress. ’s teacher and service providers consistently collaborated with each other and the Parent.

Parent teacher conferences are very detailed and every provider and teacher participates.

’s program provides with the individualized differentiated instruction and intensive 1:1 support she requires. The program provides her with significant support with academics, speech, feeding and other related services and increases her social and life skills. Not only did make progress during the 2018-19 SY at , but she retained many of her skills as demonstrated when she returned to school for the start of the 12-month 2019-20 SY.

The affiant concluded that made significant strides at during the 2018- 2019 school year and has benefitted greatly from being placed there. The program and related services are reasonably calculated to provide her with educational benefit in light of her circumstance. For the 2018-2019 school year the costs of tuition and related services was $197, 748.00.The parents remain fully responsible for the costs of tuition for the 2018-2019 school year.

Upon cross examination, the witness reiterated that the paraprofessional is with the child throughout the day and the provider is in the classroom, the paraprofessional is there to support the child in any activities of daily living that may occur during the session. In addition, the para-professional is a facilitator; he observes and learns from the clinician who is in the class. This allows the para-professional to carry over communication and other therapeutic activities during other times of day. The paraprofessional is there not only to provide support for all activities of daily living and continuity so that the can continue to demonstrate her independence and practice skills throughout the day.

The witness was directed to the class schedule and stated that the school provides services in a 60-minute intervals as the instructional day begins at 8:30 am and ends at 4:00 p.m. Additionally, Ms. stated that “we have a longer school day, we have more hours in the day that allow us to provide a longer therapeutic day, broken into longer therapeutic SeSSiONS .

The witness referred to a comment made by her colleague, the Director of Physical Therapy, and reflected her opinion “that we first prevent regression and maintain the child's current level of mobility”. Additionally, to prevent regression is to follow the directions of the physical therapist in terms of positioning the children so that they are not in a specific immobile position throughout the day. As a layperson, Ms. stated that we “want to help the child initiate and participate so that they're moving as they are transitioned between positions throughout the day. “We want to make sure the child sustains their mobility, they're in a variety of positions, and that they take as much active part in that as they can; they are repositioned throughout the day.

THE DEPARTMENT?’S CASE

The DOE rested and failed to provide documentary evidence or witnesses and rested.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The purpose behind the Individuals with Disabilities Education Act (IDEA) is to (20 U.S.C. section 1400-1482) ensure that students with disabilities have available to them a FAPE; see Schaffer v. Weast, 126 S. Ct. 528, 531 [2005]; Bd. Of Education v. Rowley 458 S. CT. 176, 179-

81 [1982]; Frank G. v. Bd. Of Edu. 459 F. 3d 356 371 92d Cir 2006). A FAPE includes special education and related services designed to meet the student’s unique need provided in conformity with a comprehensive written IEP (20 U.S.C. section 1401 [9] [D] 34 C.F.R. section 300.13 see 210 U.S.C. section 1414 ‘d’; 34 CFR Section 200-347; The student’s recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. section 1412 [a][5][A]; CFR section 300.13 [a][2][i], 200.1.116 [a][2]; 8 NYCRR 200.6 [a][1]; see Walczak v. Fla Union Free School Dist. 142 F. 3d 119, 132 [2d cir. 1998].

This hearing was requested pursuant to the Individuals with Disabilities Education Improvement Act of 2004, 20 U.S.C. §1404 et seg. (“IDEA”). “Congress enacted the IDEA ‘to ensure that all children with disabilities have available to them a free appropriate public education...designed to meet their unique needs... [and] to ensure that the rights of children with disabilities and parents of such children are protected.’” MH. v. N.Y.C. Dep’t. of Educ., 685 F.3d 217m 223 (2d Cir. 2012) (quoting 20 U.S.C. §1400(d)(1)(A)-(B)). The IDEA mandates that students with disabilities must be provided with a FAPE tailored to meet their unique needs and one that is reasonably calculated to “enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas Cty. Sch. Dist., — U.S. ___, 137 S.Ct. 988,999 (2017); Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176 (1982); SRO 17-007, p. 10. A focus on the particular child is at the core of the IDEA. Endrew F., 137S. Ct. at 999. To meet the IDEA’s requirements, a school district’s program must provide special education and related services that is “ ‘specifically designed’ to meet a child’s ‘unique needs’” and is reasonably calculated to enable the child to receive educational benefits. Endrew F., 137 S.Ct. at 999 (emphasis in original); M.H., supra, 685 F.3d at 224 (quoting Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 107 (2d Cir. 2007)).

The legal standard applicable to request for payment for educational services such as in this case is well established. A Department of Education may be required to pay for educational services obtained for a child by the child’s parents if: 1. the services offered by the Department of Education were inadequate or inappropriate, 2. the services selected by the parents were appropriate and 3, equitable considerations support the parent’s claims (Sch. Comm. Of Burlington v. Dept. of Educ. 471 U.S. 359 [1985]; Florence County Sch. Dist. Foru v. Carter, 510 U.S. 7 [1993]; Cerra v. Pawling Center, School Dist. 427 F. 3d 186, 192 [2d Cir. 2005] “reimbursement merely requires a district to belatedly pay expenses that it should have paid all along and would have borne in the first instance had it developed a proper IEP.”

Under the second criteria of the legal standard, the child’s parent bears the burden of proof with regard to appropriateness of the services which the parents obtained for the child for the current school year (Application of a Child with a Disability, Appeal No. 94-29; Application of the Bd. Of Education of the Monroe-Woodbury CSE, Appeal No. 93-34; Application of a Child with a Disability, Appeal No. 95-57, in order to meet that burden, the parent must show that the services were “proper under the act”, (IDEA) (Burlington 471 U.S. at 370) i.e. that the private school offered an educational program which met the child’s special educational needs (Application of a Child with a Disability, Appeal No. 94-29). The test for the parent’s private placement is that it is appropriate not that it is perfect (M.S. v Bd. Of Educ, 231 F 3d 96, 105 [2d Cit. 2000] cert. denied 532 U.S. 942 2001. The private school need not employ certified special education teachers, nor have its own IEP for the student. While parents are not held as strictly to the standard of placement in the LR as school districts are restrictiveness of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement (Rafferty v. Cranston Pub. School Comm. 315 F. 3d, 21, 26-17 [1st Cir. 2002].

The final criterion of an award of tuition reimbursement is that the petitioners’ claim is supported by equitable considerations (Carmel Centre Sch. Dist. V.V.P. 373 F Supp. 2d 402, 416 [S.D.N.Y. 2005] aff'd 2006 SL 2334140 (2d cir. 2006); (Frank G. 459 F, 3d at 363-64), Equitable considerations are relevant to fashion relief under the IDEA (Burlington 471 U.S. at 374; Mrs. C. v. Voluntown Bd. Of Edu. 226 F. 3d 60, 68 [2d Cit. 2000]; see Carter, 510 U.S. at 16 (noting that [c]ourts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required) such considerations include the parties, compliance or non-compliance with state and federal regulations pending review the reasonableness of the parties’ positions and like matters (Wolfe v. Taconic Hills Cent. Sch. Dist. 167 F. Supp 2d 530, 533 [N.D.N.Y. 2001] citing Town of Burlington v. Dept. of Educ. 736 F. 2ds at 773, 801-02 [1st Cir. 1984] aff'd 471 U.S. 359 [1985]; with respect to equitable considerations, tuition 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 finding of unreasonableness with respect other action taken by the parents 20 U.S.C. section 1412 (a)(10)(C)(Giii) Warren G. v. Cumberland Co. Sc. Dist. 190 F 3d 80, 86 (32d Cir. 1999); see Application of the Bd. Of Edu. Appeal No. 04-102; Application of the Bd. Of Educ. Appeal No. 04-026). However, reimbursement may not be denied or reduced for failure to provide such notice where compliance with the notice required would likely result in physical or emotional harm 20 U.S.C. 14122 (a)(C)(iv)(1)(cc)(ID(bb).

A denial of FAPE can be one that is substantive or results from violations of the procedural protections of the IDEA and its implementing regulations. Procedural violations result in the denial of FAPE “if they ‘impeded the child’s right to a [FAPE},’ ‘significantly impeded the parents’ opportunity to participate in the decision-making process,’ or ‘caused a deprivation of educational benefits.’” 20 U.S.C. §1415(f)(3)(C)Gi); A.C. ex rel. MC. v. Bd. of Educ. of Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 (2d Cir. 2009); see also Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 659 (S.D.N.Y. 2005) (“Multiple procedural violations may cumulatively result in the denial of FAPE even if the violations considered individually do not.”) In sum, Row/ey stands for a two-part entitlement: eligible families are entitled to an IEP that both (a) affords a placement that, substantively, is “reasonably calculated” to afford meaningful educational benefit to the child, and (b) is developed in procedural accordance with the requirements of federal law.

In this jurisdiction, the standard by which the appropriateness of a private placement is measured was articulated by the Second Circuit in the case of Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364—65 (2d Cir. 2006). In Frank G., the Court recognized that parents seeking reimbursement for a private placement bear the burden of demonstrating that the private placement is appropriate, even if the proposal in the IEP is inappropriate (citing M.S., 231 F.3d at 104). The Court stated that a request for reimbursement will not be barred even though the private school the parents choose does not meet the IDEA definition of a FAPE (see 20 U.S.C. § 1401(9) or state education requirements (see Carter, 510 U.S. at 14).

No one factor is necessarily dispositive in determining whether parents’ unilateral placement is appropriate and “reasonably calculated to enable the child to receive educational benefits.” Rowley, 458 U.S. at 207. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. See Knable ex rel. Knable v. Bexley City Sch. Dist., 238 F.3d 755 (6th Cir.2001). To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. See M.S., 231 F.3d at 105. They need only demonstrate that the placement provides “educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.” Rowley, 458 U.S. at 188—89 (internal quotation marks omitted).

More recently, in 7.K. v. New York City Dep’t of Educ., 810 F.3d 869, 877-78 (2d Cir. 2016), the Second Circuit reaffirmed that parents “bear a lower burden” of demonstrating the appropriateness of a private placement than school districts do in establishing the provision of a FAPE. Indeed, parents are not barred from reimbursement simply because the private school they choose does not meet the IDEA definition of a FAPE. Once again, parents are only required to demonstrate that the private placement was appropriate, i.e., reasonably calculated to provide educational benefit, as evidenced by the progress made at the private school.

The private school does not have to provide every related service on site, nor hire certified special education teachers, or even provide an IEP for the disabled student. Additionally, parents “may not be subject to the same mainstreaming requirements as a school board.” M.S., 231 F.3d at 105 (citing Warren G. v. Cumberland County Sch. Dist., 190 F.3d 80, 84 (3d Cir.1999). In sum, the test for the private placement “is that it is appropriate, and not that it is perfect.” C.L., 744 F.3d at 837 (quotation marks omitted); see also [.B. v. New York City Dep't of Educ., 2016 WL 1069679, at *17-18 (S.D.N.Y. Mar. 17, 2016).

“[E]quitable considerations are relevant in fashioning relief, and the court enjoys broad discretion in so doing. Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required.” Carter, 510 U.S. at 16, 114 S.Ct. 361 (citation omitted); see also A.C., 553 F.3d at 171 (“In fashioning relief, equitable considerations relating to the reasonableness of the action taken by the parents are relevant.” (citation omitted)). Statutory language in the IDEA specifically contemplates that a reimbursement award may be reduced or denied if the parents, inter alia, fail to timely notify the school district of their intent to enroll their child in a private school at public expense; fail to make their child available for an evaluation; or otherwise act unreasonably.20U.S.C.§ 1412(a)(10)(C)(Gi1).A.D., 690 F. Supp. 2d at 215. Private school tuition may be denied where parents have failed to cooperate with a school district or otherwise frustrated a district’s attempt to offera FAPE. C.L. v. Scarsdale Union Free School District, 744 F.3d 826, at840 (2d Cir. 2014) (citing Warren G., 190 F.3d 85, 85-86 (3d Cir. 1999)), Forest Grove School Dist. v. T.A., 557 U.S. 230, 247 (2009)). Notably, parents who do not obstruct their school district’s placement process will not be precluded from receiving reimbursement for equitable reasons (see, C.L., 744 F.3d at 840 (equities weighed in favor of the Parents, as they attempted to find an appropriate placement within the school district, attempted to make contact with the recommended placement site and did not enroll the child in the private school until after they were unsuccessful at the CSE meeting); R.B. v. NYC Dept. of Education, 713 F.Supp.2d 235, 248-249 (S.D.N.Y. 2010); W.R. v. NYC Dept. of Education, 2009 WL 874061, *7; (S.D.N.Y. March 31, 2009) see also A.R. v. NYC Dept. of Education, 2013 WL 5312537, *10 (S.D.N.Y. Sept. 23, 2013) (‘there was no evidence that Plaintiff ever failed to cooperate with the DOE, declined to visit any proposed placement, or notify the DOE of her dissatisfaction with its proposal. Therefore, the court [found] that a preponderance of the evidence demonstrate[d] Plaintiff’s cooperation with the DOE’s placement process and that equitable considerations weigh[ed] in favor of granting her relief”’)). Where the parents “cooperate with the District in its efforts to meet its obligations under the IDEA...their pursuit of private placement [is] not a basis for denying their tuition reimbursement....” (C.L., 744 F.3d at 840).

The Parent never engaged in any manner so as to impede the process. See I.B. v. New York City Dep't of Educ., 2016 WL 1069679, at *17-18 (S.D.N.Y. Mar. 17, 2016) (parent's claim for reimbursement may be denied upon a finding of a failure to cooperate with the CSE in the development of an IEP, or if the parent's conduct precluded the CSE's ability to develop an appropriate IEP, however, in the absence of evidence demonstrating obstructive conduct on the part of parents, equitable considerations militate in favor of an award of relief to parents who have been denied their rights under the IDEA); see also C.F. ex rel. R.F. v. Dep't of Educ., 746 F.3d 68 (2d Cir. 2014). Even in certain limited circumstances, courts have held that an award directing a district to prospectively pay for the costs of a student's placement in an appropriate but non approved nonpublic school may be proper (see Connors v. Mills, 34 F. Supp. 2d 795, 802, 805-06 [N.D.N.Y. 1998]). However, the court held that the prospective funding at issue constituted the only available remedy that could have provided the student with an appropriate education, as "both the school and the parent agree[d] that the child's unique needs require[d] placement in a private non-approved school and that there [we]re no approved schools that would be appropriate" (id. at 799, 804).

Regarding Prong I

has significant handicaps such that she needs to be placed in a small, structured classroom setting grouped with students of similar disabilities and strengths. The CSE members of the team proceeded with their recommendation, based on the programs available within the DOE notwithstanding these concerns. I find that the IEP was vague and did not adequately describe ’s strengths and weaknesses or the results of evaluations and state tests, and did not adequately note the Parents’ concerns. This was a Review for the 2018 - 2019 school year; previously attended a 6:1::2 program at . She was placed there by the DOE because of the severity of her need. Upon years old, the DOE unilaterally and without good evaluative information changed her recommendation to a 12:1:4 program. The Parent believed that this was too large of a program as is severely disabled, without verbal skills and small in stature. She is dependent on adults for activities of daily living and is G2 dependent.

Additionally, the DOE failed to recommend assistive technology or augmentative communication devices. would be in a larger setting in a different school without means of communication. The Parent didn’t have a meaningful opportunity to consider the actual school setting.

Furthermore, while the IEP notes that is short in stature, the parents’ concerns over her safety due to her small size and complete helplessness were not noted. The management needs recommended in the IEP did not address all the issues discussed or identified at the IEP meeting and were insufficient to adequately support in the recommended program. The IEP did not contain adequate program modifications and supports to address the management needs that were listed.

The DOE failed to provide any evidence; for the reasons as stated herein, I find that the IEP and program recommendations were inadequate to provide a FAPE to for the 2018-2019 school year.

Regarding Prong II

I find that benefitted from her placement at during the 2018-2019 school year. According to the SLP report, PT report and OT report at the end of SY 2018-19, her needs were addressed. It is undisputed that make progress during the 2018-19 SY at and retained many of her skills as demonstrated when she returned to school for the start of the 12-month 2019-20 SY. Ms. concluded that made significant strides at during the 2018- 2019 school year and has benefitted greatly from being placed there. I agree that he program and related services were reasonably calculated to provide her with educational benefit in light of her circumstance.

Regarding Prong III

There was no evidence that Parent failed to cooperate with the DOE, declined to visit any proposed placement, or notify the DOE of her dissatisfaction with its proposal. I find that a preponderance of the evidence demonstrated Parent’s cooperation with the DOE’s placement process and that equitable considerations weigh in favor of granting her relief. In the present matter there was no evidence that the parents acted unreasonably. There is no evidence that the parents obstructed the DOE and or otherwise exhibited inequitable conduct. Accordingly, under governing legal standards, Prong HI equitable factors do not preclude reimbursement.

I find that the DOE has failed to offer a FAPE for the 2018 — 2019 school year and that the school was an appropriate placement for her. The equities favor awarding the Parents tuition fees as follows: For the 2018-2019 school year the costs of tuition was $144,000.00 and $53,748.00 for related services;

ORDER

1. I order the DOE to pay in the sum of $197,748.00 to the school for tuition and related services.

THE DOE IS TO PAY WITHIN 30 DAYS OF RECEIPT OF A FINAL BILL FROM THE

SCHOOL IN A FORM SATISFACTORY TO THE DOE.

Dated: April 8, 2020

Gary D. Peters, Esq.

Gary D. Peters, Esq.

Impartial Hearing Officer

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.