New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 184207

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Dates of Hearing: August 19, 2019

October 7, 2019

November 12, 2019

December 12, 2019

January 13, 2020

February 28, 2020

Actual Record Close Date: April 3, 2020

Hearing Officer: Linda Agoston

NAMES AND TITLES OF PERSONS WHO APPEARED AUGUST 19, 2019

via Attorney — Parents

telephone

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED OCTOBER 7, 2019

via Attorney — Parents

telephone

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED NOVEMBER 12, 2019

via Attorney — Parents

telephone

via District Representative — DOE

telephone

NAMES AND TITLES OF PERSONS WHO APPEARED DECEMBER 12, 2019

Attorney — Parents

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY 13, 2020

via Attorney — Parents

telephone

Department of Education Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED FEBRUARY 28, 2020

Advocate — Parents

Parents

Director of — Parents

Ph.D., via telephone Elementary School Program at

Department of Education Representative — DOE

On July 8, 2019, I was designated by the New York City Department of Education ("DOE") as impartial hearing officer, pursuant to the Individuals with Disabilities Education Act, ("IDEA") 20 U.S.C. §1415 and Article 89 of the Education Law of the State of New York in the matter of the Student after a recusal. The Student and the Parent through their attorney who initiated this hearing on July 3, 2019, and corrected their complaint on February 28, 2020. Hearings were held on August 19, 2019, October 7, 2019, November 12, 2019, December 12, January 13, 2020 and February 28,

2020.

The hearing was requested by the Parent to challenge the April 4, 2019 review and recommendation of the Committee on Special Education ("CSE") and to obtain funding for a unilateral placement at the Private School (" "). is a non for profit, private entity lacking State Education Department approval located in Staten Island, New York for children with special needs (Exh. K) without religious instruction (Tr. at 60).

The total amount of tuition for a 12-month program was $50,400 (Exh. J at 1) for the 2019-2020 school year.

The parties moved to extend the compliance date in light of anticipated testimony, the scheduling of witnesses and submission of evidence and closing memoranda. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution of this matter. Accordingly, the joint requests for extensions of the compliance dates were granted and the required documentation provided to the parties (Tr. at 118-122; Exhs. I-VII). The Parent submitted her post-hearing statement on April 3, 2020 and the District declined to submit a post-hearing statement. The actual record close date is April 3, 2020 and the decision due date is April 17, 2020.

Appended to the record are the names of the persons who appeared at the hearing and the documents admitted into evidence.

BACKGROUND

The Student is a who is classified with Intellectual Disabilities and who is attending , (Tr. at 53). is a nonsectarian, not-for-profit special education school with 3 programs: a preschool that is approved by New York State to provide education to students with disabilities, an elementary school program and a high school program (Tr. at 60). The Student attended the Elementary School

("Elementary School") for the 2019-2020 school year (Id.). The Student was diagnosed with Down Syndrome and strabismus (Exh. A at 1) and hearing loss and is non-verbal and started using a communication device, an IPad, in the classroom and therapy sessions to express his wants and needs (Exh. C. at 1) and he received required one-on-one ("1:1")

intensive teaching using applied behavior analysis ("ABA") in the class (Tr. at 67).

An Annual Progress Summary was conducted on 2018, for the Student when he was 5 years old and attending the Elementary School (Exh. C at 1). The Report indicated that the Student was functioning below grade level and was using an IPad to communicate his thoughts and needs and was able to match letters, numbers from 1-5 and pictures using 1:1 correspondence when given visual and verbal prompts (Id). The

Teacher reported that the Student required 1:1 teaching to acquire new skills and that once the Student mastered a skill, then he was able to work in a dyad (Exh. C at 2). The

Teacher indicated because the Student was non-verbal and that he required constant physical and verbal prompting to maintain eye contact and that when he was tired or frustrated he required a highly preferred reinforcer to be redirected back to task (Exh. C

at 3).

A Student Progress Report for SLT was conducted on December 12, 2018, for the Student and the reporter noted that the Student was attending and had received 1:1 SLT 5 times per week for 30 minutes per session and that the Student presented with delays in receptive and expressive skills as well as pragmatic functioning and that he had communicated his wants with gestures and verbal approximations and that he had started to use a communicative device to request items "I want + more" or "I want + food" with moderate prompting (Exh. F at 1) and recommended continued SLT for the same frequency and duration (Exh. F at 3).

A Student Progress Report for PT was conducted on December 17, 2018, for the Student had received 1:1 PT 4 times per week for 30 minutes per session and that the Student's management needs required continued PT for the same frequency and duration to remediate his physical skills and that 1:1 PT sessions were required as the "presence of students could be too distracting and ultimately diminish optimal gains" (Exh. E at 3).

A Student Progress Report for OT was conducted on January 11, 2019, for the Student and the OT provider noted that the Student presented "with delays in the areas of fine motor skills, bilateral coordination, visual perceptual/ motor skills, self-care/ADL skills, graphomotor skills, and sensory processing/ work behavior skills" (Exh. D at 1), and recommended that the OT services increase to 1:1 OT 5 times per week for 30 minutes per session (Exh. D at 3).

On March 27, 2018, the CSE met and classified the Student with an Intellectual Disability and recommended that he be placed in special class with in a Kindergarten class with a staff to student ratio of 12:1+1 in a class for a 12-month program with related services of individual OT 3 times per week for 30 sessions; individual parent counseling and training ("PCAT") 3 times per year; individual PT 3 times per week for 30 minutes per session; individual SLT 5 times per week for 30 minutes per session and vision services 2 times per week for 30 minutes per session (Exh. N at 9).

On April 4, 2019, the CSE met and classified the Student with an Intellectual Disability and recommended that he be placed in special class with in a Kindergarten class with a staff to student ratio of 8:1+1 in a for a 12-month program with related services of individual OT 3 times per week for 30 sessions; individual PT 3 times per week for 30 minutes per session; individual SLT 5 times per week for 30 minutes per session and vision services 2 times per week for 30 minutes per session and an individual

Dynamic display speech generating device ("SGD") as well as transportation of a vehicle with air-conditioning and limited travel time of not more than 60 minutes in a route with fewer students and an adaptive car seat door to door (Exh. B at 13-14).

On April 30, 2019, the Prior Written Notice indicated that the Student was placed in a special class with a staffing ratio of 8:1:1 for 10 months and an NYC DOE Specialized School and receive individual SLT, individual OT, individual PT, individual vision services, a SGD and Assistive Technology (Exh. G at 1-2).

On June 17, 2019, the Ten-Day Notice ("TND") indicated that the Student was 6 years old with Down Syndrome and hearing loss and used a speech generating device

(Exh. H at 1). The TND further indicated that the Student's Kindergarten IEP was changed without explanation from a special class with a staff to student ratio of 12:1+1 to an 8:1+1 ratio (Id.).

On June 24, 2019, the TND indicated that the Parent visited the proposed school and noted that the class rooms were very small and that the Student would receive no 1:1 instruction and that there was no school wide behavior plan and no interaction with typical peers (Exh. I at 1).

On July 1, 2019, the Parent requested prospective payment for the tuition at , costs, related services, and transportation at for the 2019-2020 school year (Exh. A at 1). The Parent asserted that the DOE failed to provide a free and appropriate public education ("FAPE") in the least restrictive environment ("LRE") as the April 4, 2019 IEP was fatally defective for the following reasons: (1) the IEP did not reflect the Student's abilities and skills due to the failure to evaluate the Student; (2) the IEP goals did not reflect a thorough evaluation of the Student's skills, but merely relied on an Assistive Technology Evaluation; (3) the failure to assess the Student yielded an discordant and contradictory program recommendation; (4) the goals were vague and not measurable;

(5) there was no writing goal and no OT goal to include the use of an SGD; (6) the IEP did not include a Functional Behavioral Assessment ("FBA") or a Behavioral Intervention Plan ("BIP"); (7) there was no programmatic provision of 1:1 instruction or small group for 8:1:1 special class; (8) the 12:1:1 special class recommendation was changed to a 8:1:1 class without consideration of 3:1 special class for Kindergarten.

(Exh. A at 3-4). The Parent asserted that the recommended public school placement was not appropriate and that the recommendation of a special class of 8:1:1 at the proposed placement was not appropriate and not the LRE. The Parent argued that the proposed

8:1:1 classrooms were very small and crowded in a trailer and that all the related services were offered at once at the same time (Exh. A at 5). The Parent maintained that the placement at was appropriate and that the equities favored her and requested a finding that the DOE failed to a FAPE for the 2019-2020 school year and parent requested an order to fund the tuition at in the amount of $50,400 for a 12-month program and to continue to fund the related services of individual SLT 5 times per week for 30 minutes per session; OT 3 times per week for 30 minutes per session; individual PT 3 times per week for 30 minutes per session; Vision Therapy 2 times per week for 30 minutes per session. The Parent further seeks a continued provision of the assistive technology device at school and home, and transportation with travel accommodations of door-to-door busing with limited time travel of not more than 60 minutes, air conditioning, a route with fewer students and an adaptive car seat (Exhs. at A at 7; X at

18 ).

THE DISTRICT’S CASE

The District did not submit any witnesses or evidence to support its position that a FAPE was offered for the 2019-2020 school year (Tr. at 52).

THE PARENT'S CASE

The Parent's case as presented in the testimony of the Student's mother and the School Director of .

The School Director testified that she was the Director of the elementary school program at for the past 7 years and that she had a Master's degree in elementary education and special education and a doctorate in clinical psychology and worked in both general and special education for was the clinical director for program that served children with special needs for the 5 boroughs of NY (Tr. at 59). She recalled that had 3 programs: an NYS approved preschool program, a private elementary school program and a private high school program with no religious instruction (Tr. at 60). She noted that the Student was placed in the Elementary School with a population of 34 with 5 classes and that the Student was placed in a class of 6 with similar functioning peers based on their learning styles, language skills and social needs (Tr. at 61;71). She stated that the Student's head teacher was a NYS certified special education teacher with a Master's degree in special education and Student's teaching assistant held a level 3 teaching certificate and that the class had nurses as well as paraprofessionals (Tr. at 63).

The School Director reviewed the Student's classroom schedule (Exh. L) and explained that the curricula used in the Student's class included the Functional Academic Curriculum for Exceptional Students ("FACES"), that reflected the goals of the program to teacher academic skills as they relate to life (Tr. at 64). She explained that Language for Learning was another curricula to ensure that the Student mastered a specific skill before moving on to another skill (Tr. at 64) and that the Student was working on counting up to 30 and to sequence numbers to 30 and was able to master concepts of big, medium and small (Tr. at 66).

The School Director stated that the behavior analyst provided ABA to the Student and that the Student received 1:1 intensive teaching and that another instructional program, Reading Mastery, also required mastery of a specific skills (Tr. at 65). She opined that the Student progressed in math and that in the beginning of the year in July 2019, he was able to identify number to 15 and that in February 2020, he was able to count to 35 (Tr. at 66). She stated that the Student required 1:1 intensive teaching by the teacher or the assistant or the school psychologist or the behavior analyst even though he was not autistic because he was very distracted and required visual barriers and that data was taken daily to ensure that the a specific method was effective and that the teaching procedures and prompting strategies were tweaked ensure understanding (Tr. at 67-

68;95).

The School Director explained that there were sensory centers for students to generalized skills such as an ice cream stand so students can understand the concept of exchanging money and a puppet area where students can practice social skills (Tr. at 69).

She noted that a psychologist, , developed social skills for the Student to ensure that he used appropriate language, was able to take turns and to share and to follow the rules of the game (Id.). She opined that the Student progressed in his ability to read simple books with 4-5 words on a page and that he was learning site words and was able to answer simple questions based on the story. She stated that in July 2019, the Student only recognized his first name in print and in February 2020, he was able to read a simple book such as the apple is red and was currently able to attend to stories read aloud (Tr. at

70).

The School Director stressed that the Student required a BIP and the lack of positive behavioral strategies rendered the April 2019 IEP (Exh. B at 4) defective as he required behavioral interventions when he refused to participate and engage in the learning process and that the staff at developed a lot of BIPs in the classroom and for transitions from the classroom to therapy. She stressed that the Student was provided with a choice menu and a reinforcement and visual and sound barriers that assisted the Student as noise and stimuli negatively affected him (Tr. at 73-74). She opined that without the specific programming that the Student would stand apart with his arms crossed (Tr. at 75). She opined that the annual goals (Exh. B at 11) were not appropriate as the goals were not ambitious as he had mastered the goals (Tr. at 76). She stated that the Student was capable of much more academic progress (Tr. at 77).

The School Director acknowledged that the Student received all of his related services except for the vision services, but that she contacted all the providers on the DOE list and Hunter College and Lighthouse Guide to obtain a provider (Tr. at 78). She opined that the Student was able to achieve academic success despite the lack of vision services and that he received SLT 5 times per week; OT and PT 3 times per week through RSAs at and that the all the related service providers and the staff, the teachers and the paraprofessionals worked with the staff at to enable the Student to maximize the classroom time (Tr. at 83) and that the Student received his related services in an 1:1 setting (Tr. at 80). She recalled that the Student's OT provider recommended that the OT mandate increase to 5 session and opined that the Student required 5 sessions of 1:1 OT due to his poor fine motor skills to hold a pencil or to squeeze toothpaste from a tube (Tr. at 83). She stated that the Parent of the Student received PCAT provided by a school psychologist individually and in a group (Tr. at 85) and that the teaching staff and paraprofessional received outside training as well as weekly in-school training on direct instruction techniques and that she met individually with each teacher to review the Student's progress and that data was collected daily and his programs were reviewed weekly to ensure mastery of skills (Tr. at 86-87) and opined that the Student progressed in his ability to speak with his SGD and that his frustration and behavior improved as he was able to be understood (Tr. at 90) and that the Student did not require an 1:1 paraprofessional as the behavioral strategies implemented by the teaching staff prevented negative behavior in terms of his distraction issues (Tr. at 91;94). She stated that the Student was mainstreamed for arts and crafts and snacks with typical peers at the mainstream school, (Tr. at 88). She stated that there were mainstreaming opportunities by community trips to ice skating and the zoo and restaurants (Id.). She opined that the Student performed in the middle range of his classmates of 6 in terms of academic and social ability (Tr. at 97) and that the Student required greater OT for motor intervention to increase his hand strength (Tr. at 98).

The Parent testified regarding her son's educational history and classification and noted that she participated in the IEP meeting for the 2019-2020 school year and that she visited the proposed school in a trailer and observed the proposed 8:1:1 classrooms were small with a range of grades from 1 to 3 (Tr. at 102) and that she did not consider the proposed school appropriate because her son would not receive the 1:1 instruction he needed (Tr. at 109) and because the bathrooms were located outside the class and noted that her son was not toilet trained (Tr. at 104). She stated that her attorney wrote to the CSE to convey her concerns (Exh. O at 3) and that there was no response (Id.). She opined that her son progressed academically at during the 2019-2020 school year in his verbalization and in his ability to count and to speak using more words in a sentence instead of a command like juice (Tr. at 105) and that her son progressed emotionally as he was able to take accountability when he was wrong and made social growth and was better able to relate to other people to fit into social situations (Tr. at 106).

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Under IDEA, New York State law and both the federal and State regulations, the right to a FAPE is guaranteed. There is no obligation on the part of the school district to provide the best education for the student but that education must be appropriate so that there is an opportunity for the student to make progress in his/her education. States receiving federal funds are required to provide "all children with disabilities" a "free and appropriate public education" (20 U.S.C. § 400[d][1][A]).(Gagliardo v. Arlington Cent.

Sch. Dist., 489 F.3d 105, 122 [2d. Cir. 2007]). FAPE consists of specialized education and related services designed to meet a student’s unique need, provided in conformity with a comprehensive written IEP (34 C.F.R. § 300.13). "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…." and "a student offered an educational program providing 'merely more than de minimis progress' from year to year can hardly be said to have been offered an education at all" (Endrew F. v.

Douglas County School District, 580 U.S. ___ (2017), 2017 WL 1066260 [March 22, 2017]). To meet its burden of showing that it had offered to provide a FAPE to a student, the board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206, 207 [1982]). As for the program itself, the Second Circuit has observed that "'for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression'" (Weixel v. Bd. of Educ., 287 F.3d 138, 151 [2d Cir. 2002], quoting M.S. ex rel. SS. V. Bd. of Educ. of the City Sch. Dist. of the City of Yonkers, 231 F.3d 96 at 103 (2d Cir. 2000); see Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119 at 130 (2d Cir. 1998). This progress, however, must be meaningful; i.e., more than mere trivial advancement (Id. at 130). The student's recommended program must also be provided in the LRE (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR

200.6[a][1]).

For tuition reimbursement cases a board of education may be required to pay for educational services obtained for a child by the child’s parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent’s claim. (School Committee of the Town of Burlington v. Dept. Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]; see also, Frank G. and Dianne G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356 [2d Cir. 2006] cert denied, Board of Educ. of Hyde Park Cent. School Dist. v. Frank G., 2007 WL 2982269 [Oct. 15, 2007]). The burden of persuasion in an administrative hearing challenging the appropriateness of an IEP is on the Department of Education. N.Y. Educ. Law §4404[1][c].

Prong 1

I find that the District presented no witnesses and did not dispute any claims of the Parent that FAPE was not offered for the 2019-2020 school year (Tr. at 52).

The Parent's attorney asserted: "Defects in an IEP and/or the district's inability to implement it at the selected school can constitute a denial of FAPE. A.M. v. N.Y.C. Dep't of Educ., 845 F.3d 523, 543 (2d Cir. 2017). The DOE failed to put on a case to demonstrate that either IEP or the selected school location were appropriate, thereby failing in meeting its burden. There is no support for a claim that the District provided Student a FAPE for the school year" (Exh. X at 8). I agree and find that without a District witness or testimony to explain how the Student's deficits were addressed within the IEP and other DOE documents as well as to explain the CSE's rationale in recommending the disputed program, the District was unable to meet their burden. The SRO has found that allegations that are left unchallenged are deemed as true. (See Application of a Student with a Disability, Appeal No. 01-044). I find the evidence in the record is consistent with the allegations. The Parent's attorney argued that the "Student was offered a seat in a classroom that did not contain functional peers, as there were no other children with Down Syndrome in the school, and could not comply with his IEP mandates that he receive his instruction, including related services, in a true one-to one setting. O:3-4; Tr.

103"(Exh. X at 5). I agree and find that the Parent expressed her concerns to the CSE and did not receive a response (Exh. O at 3).

It is the DOE's burden to establish that the recommended program was supported by sufficient evaluative material (8 NYCRR 200.4[b][4][5][6]). The Parent's attorney asserted that the program did not provide the Student with sufficient support without a BIP and that the academic goals were very vague and not measurable and not ambitious and that the "Supreme Court makes clear that the IEP must describe an appropriately ambitious program for the student.... Endrew F., 137 S. Ct. at 999 (2017)" (Exh. X at 8). She argued that the recommended program of 8:1:1 in a special class was not reasonably calculated to enable the Student to make progress and did not provide individual instruction and that the Student required as there was no programmatic provision of 1:1 instruction or small group (Exh. A at 4). The Parent asserted that the proposed placement and that the related services were provided in a small room in the proposed placement and that the toilets were too large and that the proposed placement was a trailer with 13 classrooms and that the related services were all provided in the same room without any barriers and there was no behavior plan in the proposed placement and no interaction with typical peers (Exh. A at 5).

Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a)

impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]).

I find that the Parent was never provided with any explanations of why the CSE team changed the ratio from 12:1:1 to 8:1:1 and I find that the CSE refused to provide the Student with the 1:1 attention he required to learn a new skills. Moreover, the DOE had documentation of the Student's continued, significant speech and behavior needs at the time of the CSE meeting and I find that the CSE was on notice of the severe deficits in cognition, speech, fine and gross motor skills in the Teacher Report, the SLT, OT and PT Reports (Exhs. C-F). I find that the team was aware of his behavior to refuse to do work or participate in class by the Progress Summary Report (Exh. C at 1). I find that the April 4, 2019 IEP failed conduct comprehensive evaluations (Exh. A at 2). I find that the CSE failed to consider the recommendations of the teacher in the Annual Progress Report that indicated that the Student required 1:1 attention and instruction throughout the day (Exh. A at 3). I find that the CSE was aware that the Student exhibited a pattern of interfering and negative behavior noted by the Teacher describing his academic functioning (Exh. C at 2) and I find that the Student required a more supportive program than the CSE was willing to provide.

The Parent's attorney stated the CSE did not consider the Parent's input in developing the IEP nor did the CSE did not involve the Parent in the development of the goals and asserted that the IEP was not reasonably calculated to enable the Student to make progress in light of his circumstances (Exh. X at 8). I agree.

I find that the IEP team ignored the Parent's concerns at the April 4, 2019 IEP meeting for a placement with intensive behavioral programming. I further find that the Parent wanted more testing, but the IEP team merely told her that her son could not be tested (Exh. O at 2). I credit the Parent's Affidavit that she told the IEP team that they did not have enough information to determine her son's needs (Id.). I credit the Affidavit and find that the Parent was not involved in the IEP meeting except to listen as the team asked the Student's teacher about the goals and I find that the Parent was surprised that the math goal involved her son "counting" as her son was non-verbal. I further find that the IEP did not include the SGD as part of the goal (Id.). I credit the Affidavit and find that the Parent considered the reading goal was vague and I find that there was no writing goal (Id.). I credit the Affidavit and find that the Student's teacher was not consulted about the Student's behavior and I find that the Parent told the team members that her son required a FBA and BIP and I find that the ratio of 8:1:1 was changed without any discussion and without the Parent's input (Exh. O at 3). I credit the Affidavit and find that the Parent told the team that in a group in 8 that her son was distracted and that he needed 1:1 instruction and 1:1 therapies and a behavior plan to keep focused and on task (Id.). I find that the CSE team ignored the Parent's request for more support which significantly impeded the Parent's opportunity to participate in the decision making process. I find the program recommended was made in contradiction of the Parent's concerns and caused a deprivation of educational benefits.

The Parent's attorney asserted that the April 4, 2019 IEP was inadequate because the goals failed to address the Student's deficits (Exh. X at 8). The School Director testified that the IEP goals did not set a high level of achievement (Tr. at 76). I credit the School Director's testimony and find that the goals did not promote the acquisition of new skills. I further find that the IEP benchmarks did not include sufficient specificity and I find that the goals were vague and were insufficient to address language deficits, and behavior and attention issues.

The Parent's attorney asserted that the team did not discuss the Student's need for intensive behavioral programming (Exh. X at 8). I agree and find the lack of an FBA or BIP rendered the IEP defective as the Student had a history of shutting down and required a large amount of behavior support (Exh. C at 1). I find the FBA must provide a baseline of the student's problem behaviors with regard to frequency, duration, intensity and/or latency across activities, settings, people and times of the day per 8 N.Y.C.R.R. §

200.22[a][2-3]. I credit the testimony of the School Director regarding the deficiencies of the April 4, 2019 IEP because it failed to include a FBA and BIP (Tr. at 74) and I credit her testimony and the Affidavit of the Parent and I find that the Student required a FBA and BIP to address interfering behaviors and I find that the IEP failed to sufficient support to address the Student's behavior.

The Parent's attorney argued that the IEP was inappropriate and that the DOE did no meaningfully include the Parent in the developing an appropriate program for the Student (Exh. X at 8). I agree.

Accordingly, I find that FAPE was not offered for the 2019-2020 school year and the Parent prevailed on the Prong 1.

Prong 2

When a public school system has failed to provide FAPE, as is the case here the program and "services chosen by the parent are "proper under the Act" if the education provided is "reasonably calculated to enable the child to receive educational benefits."

Carter, 510 U.S. at 14. Although the parents bear the burden of proof with regard to the services obtained by the parents for the student, they are not barred from reimbursement if their program does not meet the IDEA definition of a FAPE. See 20 U.S.C. §1401(9), Frank G. v. Bd. of Educ. of Hyde Park., 459 F. 3d 356 (2nd Cir. 2006). It is not required that the provider of the services be State-approved to provide instruction to children with disabilities. Carter, 510 U.S. at 10. The student need not be in the least restrictive environment. Frank G, 459 F. 3d at 364. "Ultimately the issue turns on whether a placement…is 'reasonably calculated to enable the child to receive educational benefits.'

[internal citations omitted] …", Frank G, 459 F. 3d at 130. No one factor is necessarily dispositive in determining that. Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982).

Parents need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. Id. at 364-365.

See also Gagliardo v. Arlington Cent. Sch. Dist., 489 F 3d. 105, 115 (2d Cir. 2007).

I find that the testimony and evidence adduced at the hearing demonstrated that the Student's placement at in very small, highly therapeutic setting that supported his communication deficits, his behavior and his attention difficulties and enabled the Student to be progress academically, behaviorally and socially. As discussed above I find that the Student made meaningful progress in multiple areas. I credit the testimony of the School Director and find the students in the Student's class were functionally grouped (Tr. at 61;71) and that TSP provided all of the Student's mandated therapy except for vision therapy on a weekly basis (Exh. L). I credit the School Director's testimony as to her attempts to find a vision therapist and I credit her opinion that the Student progressed despite the lack of vision therapy (Tr. at 78) and was capable of more academic progress (Tr. at 77). I credit the School Director's testimony and find that the social skills program led by the school psychologist and using 's curriculum provided specific instruction in socialization and social skills training (Tr. at 69). I find that the sensory activities to address his multiple deficits. I credit the School Director's testimony and find that the Student progressed in his ability to master new words by the Language for Learning and the FACES curricula and I find that the Student learned to identify comparative concepts (Tr. at 66) and was able to uses language more functionally so his socialization improved (Tr. at 109). I find that his communication improved as he was now able to express his wants by his SGD without frustration (Tr. at 90). I credit the Parent's testimony and find that her son progressed emotionally as he was able to take accountability when he was wrong and made social growth and was better able to relate to other people to fit into social situations (Tr. at 106). I credit the School Director's testimony that the Student had opportunities to interact with typically developing peers and was mainstreamed for arts and crafts and snacks with typical peers through buddy programs who served as social and language models for Student at the mainstream school (Tr. at 88). I find that there were mainstreaming opportunities by community trips to ice skating and the zoo (Id.). I find that the goals were worked on and that data was collected daily (Tr. at 87).

The uncontested testimony established that Student's issues were addressed by the use of 1:1 ABA programs and I find that placed an emphasis on academic skills, ADL skills and social skills development and I find that the Student progressed in his behavior and improved his academic ability (Tr. at 69-70), and I find that the Student was now able to identity objects could now count to 35 (Tr. at 66). I find the daily data collection and behavior plans addressed the Student's interfering behavior. I find that socials skills were worked on in class by the school psychologist and that the Student's social skills were assessed and then specific goals were developed to address the Student's social deficits. I find the multisensory technology of smart boards and iPads addressed the Student's sensory needs based on his multiple disabilities. I find that the staff of multiple psychologists, teachers and related service providers enabled the Student to generalize skills and I find the speech and fine and gross motor classes addressed his unique special education needs and his distraction issues and his interfering behavior. I find that the Student progressed in academics, behavior and his ability to attend. I also find that offered opportunities for interaction with non-disabled peers and was the

LRE.

The Parent's attorney argued that used RSAs for the related services by an agency contracted through the DOE and that the therapists were at the school full-time and were integrated into the School environment (Tr. at 80) and that this fact did not render inappropriate (Exh. X at 11). She asserted that in "M.H. v NY City Dept. of Educ., 685 F.3d 217, 253 (2d Cir. 2012), the Court affirmed the district court's rejection of the DOE's argument that the parents' unilateral placement was inappropriate because the school did not provide related services on-site" (Id.). The Parent's attorney argued and I agree that "the school chosen by Parent provides specialized instruction by specially trained and licensed special educators using the recommended methodologies all day" (Exh. X at 14).

Therefore, I find was an appropriate placement. Based on the foregoing, I find the parent satisfied the Prong 2.

Prong 3

I find that the District did not raise any Prong 3 claims. Further, the evidence shows that the parent cooperated with the CSE and appropriately and timely notified the district as to parental concerns (Tr. at 109;Exhs. A at 5, H, 0 at 2).

I find the testimony adduced at the hearing established that the Parent cooperated with the district. I find the Parent established that she was unable to pay to the tuition by her uncontested testimony and Affidavit (Exh. O at 5) and by her tax return (Exh. M). I find that Parents who have satisfied each of the Burlington factors. have a right to retroactive direct tuition payment relief (A ex. rel D.A v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 427-429 (S.D.N.Y. 2011). I find that the Parent provided detailed and uncontradicted information as to her lack of financial resources to pay the tuition as the sole earner in her family. I credit the Parent's Affidavit and I find that the Parent lacked the financial resources to pay tuition for for the 2019-2020 school year and it would be a hardship to pay the full tuition and wait for reimbursement. I find the parent met the Connors criteria for prospective funding for the cost of the tuition for the 2019- 2020 school year at and I find that the parent is entitled to direct retroactive payment. "Once the Burlington prerequisites relative to a non-approved private school are met, and a parent shows that his or her financial circumstances eliminate the opportunity for unilateral placement in the non-approved school, the public school must pay the cost of the private placement immediately" (Connor v. Mills, 34 F.Supp.2d 795 at 805-806, 132 Ed. Law Rep. 767 (N.D.N.Y)).

The parent's attorney requested an increase of the mandated OT from 3 sessions per week to 5 sessions of individual OT per week for 30 minutes per session based on the School Director's testimony (Tr. at 82) as the Student's hand strength and grasp were poor

(Exh. X at 9). I find that the testimony and documentary evidence (Exh. D at 3) adduced at the hearing and to which there was no objection supported the request to increase the individual OT sessions from 3 sessions per week for 30 minutes per session to 5 sessions per week for 30 minutes per session.

Order

It is ordered that the DOE provide prospective payment of $50,4000 for the tuition at for the 2019-2020 school year upon proof of attendance within 30 days of the submission of proof of attendance and to continue to provide RSAs and fund the related services of individual SLT 5 times per week for 30 minutes per session; individual OT 5 times per week for 30 minutes per session; individual PT 3 times per week for 30 minutes per session; and Vision Therapy 2 times per week for 30 minutes per session as well as a continued provision of the assistive technology device at school and home, and transportation with travel accommodations of door-to-door busing with limited time travel of not more than 60 minutes, air conditioning, a route with fewer students and an adaptive car seat.

_______________________

LINDA AGOSTON, ESQ.

Impartial Hearing Officer

Dated: April 16, 2020

PLEASE TAKE NOTICE

The Parents and/or the New York City Department of Education has a right to obtain a review of this decision by a State Review Officer of the New York State Education Department under Part 200.5(k) of the Regulations of the Commissioner of Education, Section 4404 of the Education Law, and the Individuals with Disabilities Education Act.

Directions and forms can be found on the Office of State Review website: http://www.sro.nysed.gov/RevisedRegulationsOverview.html

DOCUMENTATION ENTERED INTO THE RECORD ON OCTOBER 7, 2019

I Decision on extension, 9/11/19, 1 p. IHO

II Decision on extension, 10/7/19, 1 p. IHO

DOCUMENTATION ENTERED INTO THE RECORD ON NOVEMBER 12, 2019

III Decision on extension, 11/12/19, 1 p. IHO

DOCUMENTATION ENTERED INTO THE RECORD ON DECEMBER 12, 2019

IV Decision on extension, 12/12/19, 1 p. IHO

DOCUMENTATION ENTERED INTO THE RECORD ON JANUARY 13, 2020

V Decision on extension, 1/13/20, 1 p. IHO

DOCUMENTATION ENTERED INTO THE RECORD ON FEBRUARY 28, 2020

A Due Process Complaint, 7/1/19, 9 pp. Parent

B IEP, 4/30/19, 18 pp. Parent

C Teacher report, undated, 4 pp. Parent

D OT report, 1/11/19, 5 p. Parent

E PT report, 12/17/18, 2 pp. Parent

F Speech report, 12/12/18, 4 pp. Parent

G PWN, 4/30/19, 3 pp. Parent

H Letter to CSE, 6/17/19, 2 pp. Parent

I Letter to CSE, 6/6/19, 4 pp Parent

J Enrollment agreement, 6/6/19, 4 pp. Parent

K Description of program, undated, 4 pp. Parent

L Classroom schedule and profile, 2019/2020, 3 pp. Parent

M 2018 tax return, undated, 1 p. Parent

N IEP, 3/27/18, 15 pp. Parent

O Parent affidavit, 2/28/20, 5 pp. Parent

I Decision on extension, 9/11/19, 1 p. IHO

II Decision on extension, 10/7/19, 1 p. IHO

III Decision on extension, 11/12/19, 1 p. IHO

IV Decision on extension, 12/12/19, 1 p IHO

V Decision on extension, 1/3/20, 1 p. IHO

VI Decision on extension, 2/7/20, 1 p. IHO

VII Decision on extension, 2/28/20, 1 p. IHO

POST HEARING SUBMISSION

VIII Subpoena, 1/10/20, 1 p. IHO

IX Decision on extension, 4/3/20, 1 p. IHO

X Parent's Closing Brief, 4/3/20, 18 pp. IHO