NY IHO #185264: New York City... | Special Education Law

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FINDINGS OF FACT AND DECISION

Case Number: 185264

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Dates of Hearing: September 20, 2019

November 5, 2019

March 2, 2020

Actual Record Close Date: May 1, 2020

Hearing Officer: Linda Agoston

NAMES AND TITLES OF PERSONS WHO APPEARED

SEPTEMBER 20, 2019

Attorney Parent

District Representative Department of Education

NAMES AND TITLES OF PERSONS WHO APPEARED

NOVEMBER 5, 2020

via Attorney Parent

telephone

District Representative Department of Education

NAMES AND TITLES OF PERSONS WHO APPEARED

MARCH 2, 2020

Attorney Parent

Parents

vila Educational Director Parent

telephone

District Representative Department of Education

Special Education Teacher Department of Education

On July 15, 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, 20 U.S.C. §1415(b)(2) and Article 89 of the Education Law of the State of New York in the matter of (hereinafter "STUDENT") and the parents through their attorney initiated this hearing on July 12, 2019 and amended their request on October 31, 2019. Hearings were held on September 20, 2019, November 5, 2019 and March 3, 2020. The parties moved to extend the compliance dates during the course of the hearing and the requests for extensions of the compliance dates were granted (Exhs. /-VJ). The parents' representative submitted and the district's representative submitted their post-hearing statements on May 1, 2020. The current record close date is May 1, 2020 and the decision due date is May 15, 2020. Appended to the record are lists of persons in attendance and of documents submitted into evidence.

This proceeding arose under Article 89 of the New York State Education Law and Commissioner’s Regulations as set forth in Part 200 of Title 8 of the New York Code, Rules and Regulations ("NYCRR"). Specifically, Section 200.5 of the Regulations provides the mechanism whereby a parent may challenge the validity of the recommendation made by a public school district's Committee on Special Education ("CSE"). The hearing was initiated the parents of the STUDENT who challenge the December 15, 2017, review and recommendation of the CSE as insufficient to meet their son's needs and challenge the December 20, 2018, review and recommendation of the CSE and challenge the appropriateness of the placement offer at received on or about May 2019 (Exh. T at 1).

The parents unilaterally placed their son at h , a private educational program lacking New York State Education Department approval (hereinafter " "). The parents seek an order for the DOE to reimburse the parents and/or provide direct funding to for the placement at for the 2018-2019 and 2019-2020 school years (Exh.T at 3) and to provide transportation to (Exh.U at 2).

BACKGROUND

The STUDENT is an — -year-old boy who has multiple disabilities including seizure disorders. At the age of 3 months he developed infantile spasms with significant brain damage (Exh. 7 atl). His medical history was positive for seizures, but the STUDENT had been seizure free since (Exh. G at 1). At the age of , he underwent brain surgery that stopped the seizures, but had disabled the left hemisphere of his cerebrum and caused some paralysis and so that he could not use his right arm at all (Id.). The Student was placed preschool in a program in in 12:1:4 class for 4 years (Exh. 4 at 1).

A Bilingual Psycho-educational evaluation was conducted on December 5, 2017, when the STUDENT was years old by , Ph.D., licensed psychologist. Dr. attempted to assess the Student's motor skills by the Development Test of Visual Motor Integration and found that the Student was able to hold a special pencil in his left fist, but was unable to draw a line as he could not control the crayon (Exh. 7 at 2). Dr. used vocabulary section of the completed the Kaufman Survey of Early Academic and Language Skills to assess the STUDENT's language skills and reported the STUDENT knew a variety of basic words and "could spontaneously utter at least three word phrases" (Id.). He used the Vineland II Adaptive Behavior Scales and found that the Student performed in the Low or Deficient Level all areas surveyed as his communication skills score was 66 in the > 1%tile; his daily living skills score was 61 were in the > 1%tile; his socialization score was 59 in the > 1%tile (Exh. 7 at 3). Dr. noted that the Student was placed in a 6:1:1 class on an interim basis until he was officially placed in the 6:1:1 class for the 2017-2018 school year and only recently had begun to talk and was able to use 100 words, but Dr. noted that the surgery limited his use of his right arm and leg and that the STUDENT had highly limited graphomotor skills when he used his left hand (Id.).

For the 2017-2018 school year, the CSE developed an individualized educational program ("IEP") dated December 15, 2017, and classified with multiple disabilities and recommended that the STUDENT be placed in a 6:1:1 special class for ELA, Math, Social Studies and Science in and provided related services of individual occupational therapy ("OT") 4 times per week for 30 minutes per session; individual physical therapy ("PT") 4 times per week for 30 minutes per session; individual speech and language therapy ("SLT") 3 times per week for 30 minutes per session; SLT 2 times per week for 30 minutes per session and an individual health paraprofessional in a specialized school for a 12-month program (Exh. 1 at 1; 21525).

On March 22, 2018, the enrollment contract with signed by the parents indicated that the tuition for a 12-month session was $138,000 (Exh. Q at 1).

By letter dated August 20, 2018, the parents wrote to the Chairperson to state their concerns regarding the program for the 2018-2019 school year. The parents indicated that the STUDENT had attended for the past several years in a 12:1:3 class and was progressing in his ability to speak and to increase his academic skills and noted that at the start of the 2017-2018 school year, their son was placed in a 6:1:1 class on a temporary basis. The parents stated that his behavior worsened over the course of the year (Exh. C). The parents indicated that their son progressed with the athome services of a Board Certified Behavior Analyst, ("BCBA") who developed a behavior program that was shared with the school staff, but was not utilized in school and that the STUDENT engaged in pulling hair, scratching, grabbing and hitting and that he pulled an earring from a teacher's ear and so the STUDENT was placed at for the 2018-2019 school year (Id.). provides education to students who required a uniquely designed curriculum and provided Applied Behavioral Analysis ("ABA") services, 1:1 instruction, Social Skills Training and Natural Environment Teacher and a BCBA and the staff utilized best practices to effectively teach and ensure learning (Exh. D at 1). The individualized instruction was segmented into Intensive Teaching Time ("ITT") and Natural Environment Teacher ("NET") and that the instructors recorded data daily on targeted goals and that the NET focused on play skills and social interactions and the also provided SLT,OT and PT and the SLT, OT and PT goals were incorporated into the children's curriculum and taught consistently and skills were generalized across multiple setting and sensory needs were addressed by the sensory diet and sensory gym incorporated throughout the day (Exh. D at 2).

The November 2018 Progress Report from indicated that the skill level of the STUDENT at the time of intake by the Verbal Behavior Milestones Assessment and Placement Program ("VB-MAPP") indicated that he was diagnosed with global delays and received 1:1 support of ABA and related services with errorless teaching to address behavior and acquire new skills (Exh. F at 1).

The November 2018 Speech and Language Initial Evaluation from from the SLT provider indicated that the STUDENT had limited functioning of his right arm and hand and decreased coordination in his hands and legs (Exh. G at 1). The Comprehensive Evaluation on Language Fundamentals Preschool 2TM Edition ("CELFPreschool-2") was used to assess the language and the STUDENT performed at an age equivalence of 3 years and 11 months for expressive vocabulary to label people and objects and performed at an age equivalence of 3 years and 2 months for the ability to follow directions and his ability to recall sentences was the age equivalence of 3 years and 2 months (Exh. G at 2) and concluded that the STUDENT presented with severe receptive, expressive and pragmatic language delays and whose oral motor weaknesses, articulation errors and intelligibility was affected by increased rate (Exh. G at 6).

The November 26, 2018 report from the PT provider from indicated that the STUDENT was placed in a class with 4 other students and with a 1:1 student to teacher ratio and that the STUDENT had he lost peripheral vision on his right side and had limited use of his right upper and lower body and had presented with developmental delays (Exh. I at 1). The evaluator used Peabody Development Motor Scales, Second Edition ("PMDS-2") for children aged 2 through 6 and found that the STUDENT functioned at the lower age range (Exh. I at 2).

The November 26, 2018 OT Initial Assessment from indicated that the PMDS-2 was used and the STUDENT achieved a raw score of 44 with an age equivalence of 34 months in his ability to grasp and the fine motor and visual motor integration score of 89 with an age equivalence of 22 months was significantly delayed in the 1“ percentile (Exh. J at 2). His self-help skills were delayed as he needed help to dress and clean himself after toileting and needed to improve his strength, balance and coordination to improve gross motor skills, and needed to improve fine motor skills to successfully participate in academics and needed to improved self-care skills including dressing and self feeding (Exh. J at 5).

For the 2018-2019 school year, the CSE developed an IEP dated December 20, 2018, and classified with multiple disabilities and recommended that the STUDENT be placed in a 6:1:1 special class for ELA, Math, Social Studies and Science in provided related services of counseling once per week for 30 minutes in a group of 2; individual OT 4 times per week for 30 minutes per session; individual PT 4 times per week for 30 minutes per session; individual SLT 3 times per week for 30 minutes per session; SLT 2 times per week for 30 minutes per session in a group of 2 and an individual behavior paraprofessional in a specialized school for a 12-month program (Exh. 3 at 1; 19324).

The CSE minutes dated December 20, 2018 and indicated that the STUDENT was currently attending in full ABA methodology program and that the IEP was to be used for the current 2018-2019 school year (Exh. 4 at 1).

A placement was formally offered to the parents on January 10, 2019 for after the December 20, 18 IEP meeting for the 2018-2019 school year on the School Location Letter (Exh. 8 at 5).

The March 2019 OT progress report from indicated that the STUDENT was currently in a full day special education program and received 1:1 OT 4 times per week for 30 minutes per session as well as group OT and began to wear corrective lens to improve the acuity in both eyes and that the STUDENT used a protocol at school and at home to encourage the use of his affected arm (Exh. K at 1). The OT provider recommended that the STUDENT continue to receive the same mandate of OT to address his sensory processing, gross motor, fine motor and ADL deficits (Exh. K at 3).

The March 2019 PT progress report from indicated that the STUDENT presented with gross motor and sensory delays and that he received PT 2 times per week in the gym and that he was easily distracted by noise and required frequent redirection (Exh. L at 1).

The March 2019 SLT progress report from indicated that the STUDENT was a friendly sweet boy who presented with severe receptive, expressive and pragmatic language delays as well as delays in articulation and phonological awareness and received SLT 4 times per week to address his deficits (Exh. M at 1;3).

On May 22, 2019, the enrollment contract with signed by the parents indicated that the tuition for a 10-month session was $120,000 (Exh. BB at 1).

The June 13, 2019, Speech and Language Final Evaluation indicated that the STUDENT made significant progress as evidenced by the increased CELF subtest scores; he performed with an age equivalence of 4 years and 11 months for expressive vocabulary to label people and objects and performed with an age equivalence of 3 years and 5 months for the ability to follow directions and his ability to recall sentences was the age equivalence of 3 years and 2 months (Exh. N at 4). The report indicated that the STUDENT increased his Peabody Picture Vocabulary Test subtest scores and his receptive language for actions and objects and increased his understanding of prepositions and learned to sequence objects and numbers (Exh. N at 5;7).

The June 2019 OT assessment report from indicated that the STUDENT made great improvement regarding his awareness of and ability to move his right arm (Exh. O at 2) and increased his PDMS-2 scores in his sensory processing skills in his ability to respond to sounds, sights and touch (Exh. O at 3) and presented with significant limitations without the domain of activities of daily living ("ADL") and required assistance with eating, dressing and toileting (Exh. O at 5).

The June 2019 Annual Report form indicated that the STUDENT's VBMAPP scores improved in all areas including listening, visual perception, motor imitation, reading, writing, math and independent play since the initial intake and that he was able to move his right foot with the use of braces on his legs and could move his right arm using the arm for 2 hours and used a "blocker" around his desk help him stay focused and required 1:1 instruction throughout the day to address skill deficits (Exh. P).

By letter dated August 20, 2019, the parents wrote to the Chairperson to state their concerns regarding the program for the 2019-2020 school year. The parents indicated that the STUDENT had attended for the past several years in a 12:1:3 ratio and was progressing in his ability to speak and increased his academic skills, and that at the start of the 2017-2018 school year, their son was placed in a 6:1:1 class and his behavior worsened over the course of the year (Exh. U). The parents indicated that on May 2019, they received the placement for , the placement where their son regressed and conveyed their concerns that the program and placement were inappropriate and inadequate to meet his needs and so the STUDENT would be placed at for the 2019-2020 school year (Id.).

On October 31, 2019, the parents amended their due process complaint and alleged that the DOE failed to provide a free and appropriate public education ("FAPE") for the 2018-2019 school year and the 2019-2020 school year on procedural and substantive grounds (Exh. T at 1). The parents further alleged the IEP teams were not validly composed and that the IEPs were not valid because the CSE teams failed to conduct sufficient evaluations and failed to obtain sufficient clinical data to support its recommendations and failed to include the parents in the process and that the IEPs failed to develop an appropriate program and placement at (Exh. T at 2). The parents asserted that the 6:1:1 program memorialized in the IEP dated December 15, 2017 was inappropriate to address the Student's behaviors and that his behaviors worsened and that the CSE failed to conduct a functional behavioral assessment ("FBA") or develop a behavior intervention plan ("BIP") to address behaviors for the 2017-2018 school year or the start of the 2018-2019 school. The parents asserted that despite being told that a BIP was used, the BIP was not provided to the parents (Id.). The parents asserted that the December 15, 2017 IEP was not appropriate because the present levels of performance did not provide an adequate baseline from which the parents or teachers could determine progress (Id.). The parents challenged the goals as vague, insufficient to meet the needs of the STUDENT. The parents asserted that the IEP failed to include ABA services that the parents obtained for their son after school with success and that the IEP did not contain adequate individualized instruction (Id.).

The parents asserted that the December 20, 2018 IEP was not appropriate because the same program of 6:1:1 special class in a specialized school with related services including a 1:1 paraprofessional was inappropriate and inadequate as he required 1:1 instruction to progress and asserted that the IEP was developed without present levels of performance and without adequate assessments and that while the IEP recommended a BIP, the CSE failed to conduct a FBA and the parents did not receive a BIP. The parents further challenged the goals, the lack of research-based instruction such as ABA and that the IEP did not provide for the STUDENT's sensory needs and asserted that the same placement offer of a 6:1:1 class at for the 2018-2019 and the 2019-2020 school years was not appropriate as the STUDENT regressed at recommended placement of during the 2017-2018 school year (Id.).

The Affidavit notarized on February 12, 2020, indicated that the tuition for the 10-month 2018-2019 school year was $120,000 and that the parent paid $7,000 towards the tuition and that the total amount due for transportation was $12,00 and that the total amount due was $125,000 including tuition and transportation (Exh. R).

The Affidavit notarized on February 20, 2020, indicated that the tuition for a 10-month 2019-2020 school year was $120,000 and that the parent paid $2,000 towards the tuition and that the total amount due for transportation was $2,400 and that the total amount due was $124,000 including tuition and transportation (Exh. CC).

THE DISTRICT’S CASE

The District maintained that the December 15, 2017 and December 20, 2018 IEP teams developed appropriate programs tailored to meet the specific needs of the student and considered all necessary evaluations as the psychological evaluation was conducted on December 5, 2017 and developed appropriate goals and allowed all parties an opportunity to participate and that the student was appropriately placed in the special class in the least restrictive environment ("LRE") and FAPE was offered for the 2017-2018 and 2019-2020 school years (Exh. V/I at 2).

The District presented the testimony of the NYS certified and licensed K-12 Special Education teacher for the CSE, a holder of a Master's degree in Special Education, testified that he was employed by the DOE for 26 years (Tr. at 30). He recalled that he participated in the December 20, 2018 IEP meeting as the special education teacher assigned and the district representative, and school psychologist, teacher from and the parent participated as well (Exh. 3 at 19) and that the team recommended a 6:1:1 special class with related services of counseling, OT, PT, STL and a full-time paraprofessional (Tr. at 32). He stated that team considered the present levels of performance that the team relied on reports from and the verbal reports from teacher at the CSE meeting and related that the team reviewed the reports from and goals and that the team felt that the needs of the STUDENT could be met in the LRE in a 6:1:1 class in a specialized school for 12-months (Tr. at 33-34).

On cross the Special Education Teacher acknowledged that he never met the STUDENT and never evaluated him and was not aware if the STUDENT was ever placed in a 6:1:1 class (Tr. at 35). He further acknowledged that the parents concerns noted on the JEP (Exh. 3 at 3) indicated that the behavior of the STUDENT hindered his academic development and that he required 1:1 instruction and ABA to progress (Tr. at 36). He stated that he did not recall if he informed the parent that the 1:1 behavior paraprofessional was not able to provide instruction nor was he able to recall if he told the parent that the DOE classes did not provide ABA, but noted that IEPs generally did not recommend a specific methodology as ABA and Floortime were options (Tr. at 37-38). He stated that he was unaware that the December 2018 IEP goals repeated the IEP goals from the December 2017 review despite the fact that for the 2017-2018 school year the STUDENT was placed in the public school and for the 2018-2019 school year the STUDENT was placed at and acknowledged that the goals were not created by his then-current teachers (Tr. at 39). He further acknowledged that not all the public school teachers were trained in ABA (Tr. at 40).

THE PARENT'S CASE

The parent and the Educational Director of School testified in support of the parents' claim for direct funding or tuition reimbursement for the unilateral placement of the STUDENT at for the 2018-2019 and 2019-2020 school years and transportation funding for the 2018-2019 and 2019-2020 school years

The Educational Director of testified that she possessed the requirement for a national certification as a BCBA and held the NYS certification as a Licensed Behavior Analyst ("LBA") and was a NYS certified special education teacher for birth though 6" grade and was employed in the field for 10 years and in her position for the past 3 years as was founded 3 years ago (Tr. at 50-51; 134). She explained that ABA was used to break down skills into small achievable goals and that prior to being employed as the Educational Director that she was a 1:1 ABA teacher at (Tr. at 51). She stated that she was responsible to review the curriculum, to monitor the staff and to provide training as needed to the staff as well as review of each student's curriculum to update the goals to ensure progress (Tr. at 52). She described as a school with 3 classes and that the class for the STUDENT had 5 students and 5 instructors and a classroom teacher and that the 1:1 ABA instructors collected data on a daily basis and that she provided in-depth ABA training before and during the year to observe and to provide feedback and to ensure that the teachers followed procedure with 100 % accuracy (Tr. at 60).

The Educational Director stated that for the 2018-2019 school year the STUDENT was placed in a class with 5 students and 5 1:1 ABA instructors (Tr. at 54) and that the 2018-2019 classroom teacher was a NYS licensed Special Education teacher and was trained in ABA and that the teacher was trained by the OT provider in sensory strategies (Tr. at 56). She stated that the 2019-2020 classroom teacher was employed by for 3 years and was a NYS licensed Special Education teacher trained in ABA (Tr. at 57). She stated that the classroom teacher would lead the classroom instruction and then the class would break into individual groups (Tr. at 58) and that the students have 3 varying instructors so that they could generalize skills no matter who provided the instruction (Tr. at 59). She recalled that she interacted daily with the Student for the 2018-2019 and 2019-2020 school years and described the STUDENT as very distractible and would use a lot of repetitive phrases and would ask the same question repeatedly (Tr. at 62). She noted that the STUDENT had significant physical needs and that when he first started in September 2018, his formal assessment indicated his language ability was equivalent to 3 years old and 11 months (Exh. G at 2; Tr. at 69). She stressed that there was a focus to increase his language ability to learn new prepositions, adjectives and to label different actions and objects and to understand 2-step directions by using different nouns and verbs (Tr. at 66).

The Educational Director stated that each student had a unique curriculum and goals based on their needs with a written program to meet long-term and short-term objectives to meet goals and that the students were engaged in a lot of sensory breaks that the OT provider pushed into the classroom (Tr. at 68). She stated that the VB-MAPP was used in the beginning of the 2018-2019 school year to assess the academic ability of the STUDENT and again at the end of the year (Exh. N) and that the STUDENT had the ability to identify and label 1 to 5 at the end of the year and was able to indentify different measures beyond big and small (Tr. at 71). She stressed that the STUDENT progressed during the 2018-2019 school year in reading because in September 2018, he knew some uppercase letters, but did not know his name and at the end of the 2018-2019 school year, he had learned 20 alphabet letters and was able to blend CVC sounds (Tr. at 72).

The Educational Director stated that the STUDENT had significant body challenges and was unable to copy any numbers, lines, shapes and at the end of the 2018-2019 school year, he was able to trace his initials (Tr. at 73). She explained that the STUDENT was assessed by the VB-MAPP in the midyear (Exh. H) and then at the end of the 2018-2019 by the VB-MAPP assessment (Exh. P) and the scores improved (Tr. at 76). She explained that when the STUDENT started in September 2018, his behavior was very challenging and he was very distractible and a with special desk placement, noise reduction and redirection he was able to concentrate and he improved in his ability to tolerate group activity (Tr. at 77).

The Educational Director noted that the OT provider pushed into the class to work with the teacher and to provide goals to the STUDENT for staying on tasks and that the classroom protocol of token boards allowed the STUDENT to earn tokens if he was able to stay on task for 30 minutes addressed his distraction needs (Tr. at 80). She further noted that the STUDENT improved his ability to socialize in that while he was socially inclined, he was unable to play with other peers in the beginning of the school year, but by the end of the 2018-2019 school year with the specific programs to teach him to play in his curriculum book and 1:1 instruction he able to play with children in his class and work on crafts with a peer with adult support (Id.).

The Educational Director reviewed the classroom schedule for the 2018-2019 school year (Exh. E) and noted that ADL skills were worked on during circle time with his 1:1 instructor as well as his ability to attend and not to run away from the table (Tr. at 82). She explained that the OT provider directed the movement activities and the 1:1 instructor ensured that the STUDENT was able to move properly (Tr. at 84). She explained that the ITT period was intensive teaching and 1:1 instruction was geared to academic goals and the NET period was 1:1 instruction related to the natural environment and was geared to social and play goals (Tr. at 85) and that 3 of the 5 1:1 instructors changed with the STUDENT every half day so that the STUDENT was able to generalize skills across all instructors (Tr. at 89). She explained that the group period allowed the STUDENT to work on sitting in a group and taking turns with the whole group and that the instructional lunch was a session when the OT and SLT provider worked with the class on ADL skills such as feeding and using cutlery (Tr. at 92) and that the STUDENT struggled with ADL and struggled to work with a group (Id.).

The Educational Director stated that for the 2019-2020 school year that the STUDENT improved his focus and his listening comprehension and that he was assessed in the beginning of the school year on the VB-MAPP (Exh. W) and that the SLT provider introduced 350 vocabulary words and that the STUDENT progressed (Tr. at 95) and he progressed with his grammar by a story grammar marker tool and he progressed in his ability to retell as story or event (Tr. at 96). She related that the STUDENT received OT, PT, SLT and worked on stretching and strengthening each morning and on the stair program for the 2018-2019 and the 2019-2020 school years with 2 therapist for OT and SLT and 1 PT provider; all providers were NYS licensed and certified (Tr. at 100-104).

The Educational Director recalled that the STUDENT improved his academic ability in reading during the 2019-2020 school year at the beginning of the 2019-2020 school year he was able to read CVC words and now he was able to read CCVC words (Tr. at 108), and that his behavior progressed as he was able to be more easily redirected during the 2019-2020 school year and was more compliant (Tr. at 110) and that the teachers worked on the ability for independently play (Tr. at 112). She stressed that errorless teaching was used and that the teachers collected data on daily worksheets to track progress in all skills in Bilingual (Tr. at 113;115). She reviewed the schedule for the 2019-2020 school year (Exh. V) and explained ITT and NET were not on the schedule to foster STUDENT's independence and that instead of the token board to promote positive behavior the STUDENT was able to use a work schedule and to place for himself the order of academic classes for reading and math on a chart (Tr. at 116).

The Educational Director reviewed the December 2017 IEP and opined that the goals were not appropriate (Exh. 1 at 13) because there were insufficient goals for communication, play skills and socialization and that the OT goal did not promote the use of his affected arm (Tr. at 120). She further opined that STUDENT required 1:1 instruction to learn new skills from a teacher not a 1:1 paraprofessional and that he could not learn with group instruction in the 6:1:1 class (Id.). She stressed that the repeated goals from the 2018-2019 IEP to the 2019-2020 IEP were not appropriate as he had progressed, but the goals did not show the progress. She explained that the STUDENT's goals were reviewed monthly at to ensure progress continued (Tr. at 122). She stated that there was no religious instruction at (Tr. at 124)

The parent testified that at 3 months his son's development stopped and he was diagnosed with infantile spasms and was not able to walk or speak (Tr. at 139). At the age of 4 years, his son's nerves that connected the right hemisphere and the left hemisphere were removed from his brain and there was major improvement (Tr. at 140). He stated that his son slowly started to regain some abilities in his right side during the preschool at in a 12:1:3 class for 3 years and then he was then placed in a 6:1:1 class on a trial basis class and he had regressed in the 6:1:1 class (Tr. at 143). He stated that his wife received calls from the bus matron about his son's inappropriate behavior (Tr. at 144). He further stated that the 6:1:1 classroom teacher complained that his son hurting her by pulling her hair and ripping her earring out from her ear (Tr. at 146).

The parent recalled that the 6:1:1 teacher stated that a 12:1:1 class would be more appropriate for his son, but he was concerned that the children in the 12:1:1 class functioned at a higher level. He recalled that the teacher recommended for his son (Tr. at 147) and that he wrote to the CSE to notify the chairperson that he was placing his son at on August 2018 (Exh. C) to convey his concerns after his May letter (Exh. B) and that there was no response (Tr. at 150) and that he signed a contract (Exh. Q) and that he requested transportation, for the 2018-2019 school year, but it was not provided (Tr. at 151) so he arranged for private transportation from at the cost of $12,000. He stated that he paid $7,000 towards the tuition for the 2018-2019 school year and that the 2017 tax return (Exh. S) reflected his income (Tr. at 152). He stated that his son received transportation from for the 2018-2019 school year and that he was only able to pay a limited amount for the tuition for the 2018-2019 school year (Id.).

The parent recalled that he attended the December 2018 IEP meeting and he informed the team members that his son required ABA to learn and that the 6:1:1 class would not provide sufficient 1:1 instructional support (Tr. at 152) and that the placement offer he received was for the same inappropriate school that he rejected during the 2018-2019 school year (Tr. at 154). He stated that his attorney wrote to the CSE to convey his concerns for the 2019-2020 regarding the program and placement (Exh. U) and that there was no response (Tr. at 155). He stated that he requested transportation to for the 2019-2020 school year and recalled that transportation was arranged after November 2019 (Tr. at 156;169). He stated that he was able to pay for $2 400 towards the transportation cost for the 2019-2020 school year (Tr. at 156) and that he was able to play for $2,000 for the tuition for the 2019-2020 school year (Tr. at 171).

The parent stated that he signed a contract with for the 2019-2020 school year (Exh. BB) and that his 2018 tax return (Exh. DD) reflected his accurate income (Tr. at 157). He opined that this son made huge progress at as his son's speech greatly improved and that his son was able to explain at home what he learned in school and that his behavior improved (Tr. at 158). He stated that his son loved working with his SLT provider and was able to jump (Tr. at 165) and that his son's focus improved so that he was able to sit for a family meal (Tr. at 167). He stated that the District started to provide transportation during the 2019-2020 school year and that he requested reimbursement and direct funding for the transportation costs for both the 2018-2019 school year and the 2019-2020 school year and requested direct funding and reimbursement for tuition for the 2018-2019 and the 2019-2020 school years (Tr. at 171).

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.c., more than mere trivial advancement (/d. 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 for the 2018-2019 school year

I find that the District presented no witnesses and 4 exhibits to support its claim that FAPE was offered for the 2018-2019 school year.

The parents asserted:

"the Second Circuit has specifically rejected a rigid 'four corners’ rule that would limit evidence to what is written in the IEP. R.E. v. N.Y.C. Dep’t of Educ., 694 F.3d 167, 185 (2d. Cir 2012). In doing so, it determined that an IEP, on its own, does not demonstrate that an appropriate education has been offered; instead, ‘testimony may be received that explains or justifies the services listed in the IEP. Id. at 185-86; see also L.O. v. N.Y.C. Dep’t of Educ., 822 F.3d 95, 110-11 (2d Cir. 2016) (holding that the district could not meet its burden of proof to demonstrate sufficient evaluative material was relied upon without testimony to that effect). Thus, the district cannot meet its burden of proof without testimony, as such would be tantamount to holding the IEP presumptively appropriate" (Exh. VITT at 2).

I find that the District failed to put on a case to demonstrate that either December 2017 IEP or the proposed school location at were appropriate, and thereby failed in meeting its burden. I find that there was no witness testimony from the December 15, 2017 IEP. I find that there was no support for the District's claim (Exh. V/ at 2) that FAPE was provided for the 2018-2019 school year. I 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 parents claim that the December 15, 2017 IEP was inappropriate to address the STUDENT's worsening behaviors and was developed without a FBA or BIP and the goals IEP was substantively and procedurally defective. The parents claim the following defects: (1) the required members were not present as there was no current teacher or any teacher that would be expected to teach the STUDENT under the ITEP; (2) the team did not rely on sufficient evaluative material to make a profile of the STUDENT's needs; (3) the required prior written was not provided; (4) the team ignored the parent's concerns regarding the unsuccessful 6:1:1 placement during the 2017-2018 school year and (5) the present levels of performance, management needs and goals were vague and insufficient and in appropriate (Exhs. A at 1; T at 1). 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][i]; 34 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[)][4][ii]; £.H. v. Bd. of Educ, 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007] aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]); Bd. of Educ. v. Schaefer, 923 N.Y.S.2d 579, 56 IDELR 4 234 (App. Div. 2011.)

The parents' attorney argued that the CSE team was not validly composed. I find that there was no testimony at the hearing to establish that the required members were present or that the special education teacher would be able to implement the student's IEP as required by 8 NYCRR 200.3[a][1][ii][ii]. Therefore, I find the December 15, 2017 IEP team was not validly composed.

The parents' attorney asserted that the CSE was on notice of the STUDENT's behavior significantly interferes with his instruction and the District failed to present any evidence of a BIP or FBA for STUDENT for the 2018-2019 school year (Exh. V/// at 3). I further find that the FBA should have been developed conducted "for a student whose behavior impedes his or her learning or that of others § 200.4(b)(1)(v)"(Exh. VIIT at 4). I find that 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. 8 N.Y.C.R.R. § 200.22(a)(2-3)(Id). The parents' attorney asserted that "the district stated that a BIP was necessary because 'child has aggressive behaviors and can be a harm to others.' (Ex. 3-6) Yet, a BIP was not created at the December 2018 IEP review and there is no evidence that the district subsequently created one to address STUDENT’s behavioral needs for the remainder of the 2018-2019 school year"(Exh. VI/T at 4). | agree and 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 parents’ attorney asserted that the because the CSE did not adequately assess the STUDENT's needs it could not create and educational program to address the needs. (Exh. VIII at 5). I find that the IEP did not provide sufficient 1:1 teacher instruction and ABA support to meet his academic, social pragmatic, communication and physical development needs and I find this failure caused a deprivation of an educational benefit.

The parents' attorney asserted that the proposed placement did not offer the 1:1 instruction and support that the STUDENT required but "recommended for the same inappropriate program that he was in for the 2017-2018 school year, it is clear that ABA would not have been provided" (Exh. V/// at 6). This assertion was not contested. I further find that there was no testimony to establish that the goals, objectives and management needs were appropriate or were able to be implemented in the recommended 6:1:1 classroom setting. I credit the testimony and find that the December 2017 IEP goals (Exh. | at 13) were not appropriate. I credit the testimony and find there were insufficient goals to meet the Student's needs in communication, play skills and socialization and I find that the OT goal did not promote the use of his affected arm (Tr. at 120). I further credit the testimony and find that the STUDENT required 1:1 instruction to learn an new skills from a teacher not a 1:1 paraprofessional and that he did not learn with group instruction in the 6:1:1 class (Id.). I find that 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 I find that the IEP was not reasonably calculated to enable the Student to make progress in light of his circumstances.

Accordingly, I find FAPE was not provided to THE STUDENT during the 2018-2019 school year as I find CSE failed to offer an appropriate program and placement for the 2018-2019 school year. Prong 2 for the 2018-2019 school year The parents must establish that the proposed parental placement is appropriate under the IDEA, i.e., that the private school is offering an instructional program that meets the child’s special education needs. In order to meet that burden, the parents must show that the private school offers an educational program that meets the student's special education needs Burlington, 471 U.S. at 370 (1985). The parent's failure to select a program approved by the state in favor of an unapproved option is not itself a bar to reimbursement Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993). The private school need not employ certified special education teachers, nor have its own JEP for the student (Application of a Child with a Disability, Appeal No. 02-092). The parent must establish by a preponderance of the evidence that the unilateral placement provides “educational instruction specifically designed to meet the unique needs of the handicapped child.” Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 122 (2d. Cir. 2007).

The Second Circuit held that the private school need not meet the IDEA definition of a FAPE, formulate an IEP for the student, or provide the student with teachers certified in special education Frank G. v. Bd. of Educ., 459 F.3d 356, 364 (2d Cir. 2006). The issue of the private school's appropriateness depends on whether was "reasonably calculated to enable the child to receive educational benefits." Frank G., 459 F. 3d at 364. Parent need not show that a private placement provides every special service necessary to maximize their child's potential in order to qualify for reimbursement Frank G., 459 F. 3d at 365. The private placement must be reasonably calculated to enable a child to receive educational benefits and must be likely to produce progress, not regression.

The standard to apply is whether "[the] unilateral private placement ... provides education instruction specifically designed to meet the unique needs of a handicapped child" Gagliardo, 489 F.3d 115. Testimony adduced at the hearing clearly demonstrates that the is providing individualized, 1:1 ABA support from instructors throughout the school day (Tr. at 52). is a small, special education school for children who required special education support for their academic, sensory, language, physical, emotional and social needs. I credit the testimony and evidence and find that the STUDENT was assessed by the VBMAPP in the midyear (Exh. H) and then at the end of the 2018-2019 by the VB-MAPP assessment (Exh. P) and the scores improved (Tr. at 76). I credit the testimony and find that when the STUDENT started in September 2018, his behavior was very challenging and he was very distractible, but with a special desk placement, noise reduction and redirection he was able to concentrate and he improved in his ability to tolerate group activity (Tr. at 77). I credit the testimony and evidence find that the STUDENT had a unique curriculum and goals based on his needs with a written program to meet longterm objectives and short-term objectives to meet goals and I find that progress was evidenced by the improved VB-MAPP scores at the end of the year (Exh. N). I find that by the end of the 2018-2019 school year, he learned 20 alphabet letters and was able to blend CVC sounds (Tr. at 72). I credit the testimony and find that STUDENT’s language ability at the start of the 2018-2019 school year was at the level of a child of 3 years and 11 months old and at the end of that the year, his language abilities improved to a child of 5 years and 6 months old. (Tr. at 94). I find that the STUDENT began the 2018-2019 school year with some basic math concepts of big and small and by the end of the 2018-2019 school year, he was able to identify eight different measures, comparatives, and number identification (Tr. at 71).

I find persuasive testimony and evidence that at the start of the 2018-2019 the STUDENT was unable to copy lines, shapes, and numbers, due to the physical challenges with his arm (T. at 72) and I find that the OT provider who pushed into the class and incorporated the therapy programs into the classroom. I find that the STUDENT improved in his writing abilities and motor skills (Tr. at 73). I find that the special educational services from the class room teacher, the ABA instruction from the 1:1 instructors and related service providers met the STUDENT's academic, behavior, social and emotional and ADL needs.

I credit the testimony and find that in September 2018, the STUDENT's behavior was very challenging as he was very distractible and I find that with special desk placement and the blocker around his desk (Exh. P), the noise reduction and redirection he was able to concentrate and he improved in his ability to tolerate group activity (Tr. at 77). I find the STUDENT's behavior needs were met as I credit the testimony and find the classroom protocol of token boards were used so that the STUDENT would earn tokens if he was able to stay on task for 30 minutes. I credit the testimony and find the behavior plan addressed his distraction needs and increased his ability to participate in group sessions (Tr. at 77-80). I find that the STUDENT improved his ability to socialize as I credit the testimony and find that the STUDENT was unable to play with other peers in the beginning of the school year and at the end of the 2018-2019 school year with the specific programs to teach him to play in his curriculum book and 1:1 instruction he able to play with children in his class and work on crafts with a peer with adult support (Id.).

I credit the testimony and find provided the STUDENT with 1:1 instruction ITT and NET sessions (Tr. at 84-85). I find that the instruction from the ITT session were connected to the natural environment to foster play-related skills. I find the Educational Director supervised the staff and met with the teachers and related service providers and reviewed the program weekly and made sure that the skills did not plateau and to ensure that the STUDENT's deficits were addressed and to ensure that progress continued (Tr. at 122). I find the related services providers were present in the classroom to ensure that the SLT and OT strategies were carried out by the teacher and instructors. I credit the progress reports and (Exhs. K at 3; L at 1; N at 5;P) and find the STUDENT improved in all areas including listening, visual perception, motor imitation, reading, writing, math and independent play since the initial intake and that he was able to move his right foot with the use of braces on his legs and could move his right arm and use his arm for 2 hours each day. I find credible the testimony from the Educational Director and I find that the STUDENT was placed in a class of 5 students and 5 instructors and a special education teacher. I find that the 1:1 staffing ratio using ABA provided sufficient support to meet his focusing and academic needs. I find the sensory diet and incorporated throughout the day and the sensory gym met his sensory needs (Exh. D at 2) and the related services providers met his language and motor needs and the behavior plan addressed his non-compliant behavior and focusing needs. I find the NYS certified special education classroom teacher and 5 instructors and the NYS certified SLT, OT and PT related service providers met the STUDENT's unique needs. I credit the testimony of the Educational Director and find that the rotation of instructions allowed for generalization (Tr. at 88).

The parent and the Educational Director testified that the was appropriate because the STUDENT had made academic, physical development and social/ emotional progress. I credit this testimony. Testimony adduced at the hearing established that because of the intensive level of 1:1 ABA support that the STUDENT received at he had made progress communicating and academically, physically and socially/emotionally during the 2018-19 school year.

Therefore, I find that the parents met their burden regarding the unilateral placement of the STUDENT at for the 2018-2019 school year.

Prong 3 for the 2018-2019 school year

I find that the parent established full cooperation by his August 20, 2018 letter to CSE alerting CSE that the proposed program and proposed school was not appropriate (Exh. C) and his openness to an appropriate placement. Tuition reimbursement to be reduced or denied if the parent (1) did not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the child from the public school or by written notice 10 business days before such removal (2) did not make the student available for an evaluation requested by the district prior to his “removal”, (3) took actions determined to be unreasonable. 28 U.S.C. Section 1412(a)(10)(c)(ii). I find the parent informed the CSE that he intended to continue to enroll the STUDENT at for the 2018-2019 school year when no appropriate program or placement was offered after the most recent CSE meeting and I find the parent complied with the requirements of 28 U.S.C. Section 1412(a)(10)(c)(aii). I find the equitable considerations do support the parents' claim for reimbursement. In this case, the parents fully cooperated with the district to the best of their ability. I find that parents who have satisfied each of the Burlington factors have a right to retroactive direct tuition payment relief (Mr. and Mrs. 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 his lack of financial resources to pay the tuition by his tax return (Exh. S). I credit the parent's testimony and I find the parents lacked the financial resources to pay the tuition for the 2018-2019 school year. I find the parents meet the criteria for prospective funding for the cost of the 2018-2019 tuition at . Further, since the 2018-2019 school year has ended, the parent is entitled to direct retroactive payment and reimbursement.

The parents’ attorney requested reimbursement/direct funding for transportation to and from for the 2018-2019 school year. The parents' attorney asserted that "New York State education law requires that the district .. ...provide suitable transportation up to a distance of fifty miles to and from a nonpublic school which a child with a handicapping condition attends if such child has been so identified by the local committee on special education and such child attends such school for the purpose of receiving services or programs similar to special educational programs recommended for such child by the local committee on special education. N.Y. EDUC. LAW § 4402(4)(d)" (Exh. VI/T at 13).

I find that the STUDENT was a student with a disability that the parents were entitled to transportation for their son to attend

Prong 1 for the 2019-2020 school year

The parents argued that the District presented a single witnesses and 4 exhibits to support its claim that FAPE was offered for the 2019-2020 school year and that the evidence was inadequate to establish that the district offered STUDENT a FAPE for the 2019-2020 school year (Exh. VIII at 3)

The parents claim that the December 20, 2018 IEP was substantively and procedurally defective. The parents claim the following defects: (1) the required members were not present as there was no current teacher or any teacher that would be expected to teach the STUDENT under the IEP; (2) the team did not conduct or consider appropriate evaluative material to address the STUDENT's needs; (3) there was no FBA and no BIP; (4) the team ignored the parent's concerns regarding the unsuccessful 6:1:1 placement during the 2017-2018 school year; (5) the present levels of performance, management needs and goals were vague and insufficient and not appropriate and (6) no ABA methodology or 1:1 instruction was provided (Exh. T at 2).

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[)][4][ii]; £.H. v. Bd. of Educ, 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007] aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]); Bd. of Educ. v. Schaefer, 923 N.Y.S.2d 579, 56 IDELR 4 234 (App. Div. 2011.)

The parents' attorney argued that the CSE team was not validly composed. I find that there was no testimony at the hearing to establish that the required members were present or that the special education teacher would be able to implement the student's IEP as required by 8 NYCRR 200.3[a][1][ii][iii]. Therefore, I find the December 20, 2018 IEP team was not validly composed.

The parents' attorney asserted that insufficient evaluative material data was done to identify the student's needs as required. "In order to conduct an adequate assessment, the district must ‘use a variety of assessment tools and strategies to gather relevant functional, developmental and academic information.’ 20 U.S.C. § 1414(b)(2)(A). FAPE cannot be achieved unless a child is properly evaluated, as the CSE cannot create an IEP that addresses a child’s needs without fully understanding them. N.B v. Hellgate Elementary Sch. Dist., 541 F.3d 1202, 1210 (9th Cir. 2008) (citations omitted)" (Exh. VIII at 3). I find that the December 20, 2018 IEP team failed conduct comprehensive evaluations. 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. F at 3). I find that the CSE was aware that the Student exhibited a pattern of interfering and negative behavior noted by the letter describing his worsened behavior and academic functioning over the 2017-2018 school year (Exh. C at 2) and I find that the Student required a more supportive program than the CSE was willing to provide. I find that 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 I find that the IEP was not reasonably calculated to enable the Student to make progress in light of his circumstances.

I find the lack of an FBA or BIP rendered the IEP defective as the Student had a history of biting and pulling hair and acting out (Exh. C at 1;Tr. at 144). I further find that the FBA should have been developed conducted "for a student whose behavior impedes his or her learning or that of others § 200.4(b)(1)(v)"(Exh. VIII at 4). I find that 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. 8 N.Y.C.R.R. § 200.22(a)(2-3)(1d). The parents' attorney asserted that "the district stated that a BIP was necessary because ‘child has aggressive behaviors and can be a harm to others.’ (Ex. 3-6) Yet, a BIP was not created at the December 2018 IEP review and there is no evidence that the district subsequently created one to address STUDENT’s behavioral needs for the remainder of the 2018-2019 school year"(Exh. VIII at 4). 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 parents’ attorney asserted that the because the CSE did not adequately assess the STUDENT's needs it could not create and educational program to address the needs. (Exh. VIIT at 5). I find that the parents requested 1:1 instruction to support him in class and ABA methodology was successful as the IEP noted same parental concerns in the December 20, 2018 IEP (Exhs. 3 at 3;4 at 1). I find the 6:1:1 class even with the 1:1 paraprofessional did not provide sufficient 1:1 teacher or ABA instruction as recommended by the STUDENT's then current teachers and related service providers so that the STUDENT was able to communicate and engage with peers (Exhs. D at 2; F at 1;G at 6; I at 2; J at 2). I find that the IEP did not provide sufficient 1:1 teacher or ABA support to meet his academic, social pragmatic, communication and _ physical development needs and I find this failure caused a deprivation of an educational benefit.

The parents’ attorney argued that the IEP team ignored the parent's concerns voiced the December 20, 2018 IEP for ABA and 1:1 instruction (Tr. at 154). This assertion was not contested. The District's own witness acknowledged that the parent wanted ABA placed on the JEP, but asserted that ABA was not placed on the IEP because not all special education teachers were not trained in ABA (Tr. at 36). The parents’ attorney asserted that the proposed placement did not offer the 1:1 instruction and support that the STUDENT required but "recommended for the same inappropriate program that he was in for the 2017-2018 school year, it is clear that ABA would not have been provided" (Exh. V/I/ at 6). This assertion was not contested. I further find that there was no testimony to establish that the goals, objectives and management needs were appropriate or were able to be implemented in the recommended 6:1:1 classroom setting. I credit the testimony of the Educational Director and find the repeated goals from the 2018-2019 TEP to the 2019-2020 IEP were not appropriate as the STUDENT progressed and the goals did not show the progress.

I find the parent established he expressed the need for ABA and 1:1 instruction at the December 20, 2018 and the team's decision to consider only an 6:1:1 program in a specialized school was made without consideration of the progress teacher's report and the related service providers reports and I find the lack of 1:1 instruction and ABA support caused an educational depravation. I find the CSE team was aware of the social, emotional and language deficits as documented by the evaluation and reports and the CSE team ignored the parents' request for more support which significantly impeded the parent's opportunity to participate in the decision making process.

Accordingly, I find FAPE was not provided to the STUDENT during the 2019-2020 school year as I find CSE failed to offer an appropriate program and placement for the 2019-2020 school year.

Prong 2 for the 2019-2020 school year

The parents must establish that the proposed parental placement is appropriate under the IDEA, i.e., that the private school is offering an instructional program that meets the child’s special education needs. In order to meet that burden, the parents must show that the private school offers an educational program that meets the student's special education needs Burlington, 471 U.S. at 370 (1985). The parent's failure to select a program approved by the state in favor of an unapproved option is not itself a bar to reimbursement Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993). The private school need not employ certified special education teachers, nor have its own JEP for the student (Application of a Child with a Disability, Appeal No. 02-092). The parent must establish by a preponderance of the evidence that the unilateral placement provides “educational instruction specifically designed to meet the unique needs of the handicapped child.” Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 122 (2d. Cir. 2007).

I find that the STUDENT’s placement from the 2018-2019 school year was maintained for the 2019-2020 school year and was tailored to meet the STUDENT's unique needs and significant motor challenges (Tr. at 62). I credit the testimony and find that the classroom was taught by a licensed NYS Special Education teacher (Tr. at 54-55). I credit the testimony and find that errorless teaching was used and that the teachers collected data on daily worksheets to track progress in all skills in Bilingual (Tr. at 113;115). I credit the testimony and find that the STUDENT improved in his ability to read as at the beginning of the 2019-2020 school year he was able to read CVC words and now was able to read CCVC words (Tr. at 108), and that his behavior progressed as he was able to be more easily redirected during the 2019-2020 school year and was more compliant (Tr. at 110) and that the teachers worked on the ability for independently play (Tr. at 112). I find that the schedule for the 2019-2020 school year (Exh. V) indicated that ITT and NET were eliminated from the schedule to foster the STUDENT's independence and that instead of the token board to promote positive behavior, the STUDENT was able to use a work schedule and was able to place of the order of academic classes for reading and math on a chart (Tr. at 116). I credit the testimony and find that for the 2019-2020 school year that the STUDENT improved his focusing and his listening comprehension and that he was assessed in the beginning of the school year on the VB-MAPP (Exh. W) and that the STUDENT progressed with his grammar by a story grammar marker tool and he progressed in his ability to retell as story or event (Tr. at 96) and I find that the STUDENT received OT, PT, SLT and worked on stretching and strengthening each morning and on the stair program during the 2019-2020 school year with 2 therapist for OT and SLT and a single PT provider with NYS licensed and certified providers (Tr. at 100-104).

The parent and the Educational Director testified that the was appropriate because the STUDENT had made academic, physical development and social/ emotional progress. I credit this testimony. Testimony adduced at the hearing established that because of the intensive level of 1:1 ABA instruction and the related therapy providers ensured that the STUDENT progressed academically, physically and socially/emotionally during the 2019-20 school year. I find that the STUDENT progressed in his ability to use his right arm and leg and improved in his ability to copy and increased his independence.

The District noted that was not the LRE and did not provide a curriculum that answered to an agency or governing body (Exh. V// at 5). I find the parents' placement may not be held to certain requirements that Districts are held such as teacher licenses or LRE under Frank G. and Gagliardo and the unilateral placement is a not perfect placement. M.S.. ex rel S.S. v Bd. Of Ed., 231 F.3d 96 (2d Cir. 2000). I further find in Application of the New York City Dept. of Edu., Appeal No. 09-017, the SRO held that the absence of SLT which may have been beneficial to the student did not warrant a finding that the private placement was inappropriate. The Second Circuit had repeated refused to find the lack of a recommended related service alone rendered a student's private placement inappropriate. G.R. v. New York City Dep’t of Educ., No. 07 Civ. 4711 (TPG), 2009 WL 2432369, at *3 (S.D.N.Y. Aug. 7 2009); Gabel v. Bd. of Educ., 368 F.Supp. 2d 313, 32 (S.D.N.Y. 2005). The parents’ attorney asserted that "unlike a public school, the parents’ chosen private school need not employ certified special education teachers in order to be appropriate, or otherwise meet state educational standards. Carter, 510 U.S. at 14; see also 34 C.F.R. §300.148(c)" (Exh. VII at 7). I agree. Accordingly, I find the absence of related services such as counseling or the absence of a governing body to oversee the curriculum and goals at did not render the private placement inappropriate.

Therefore, I find that the parents met their burden regarding the unilateral placement of the STUDENT at for the 2019-2020 school year.

Prong 3 for the 2019-2020 school year

I find that the parent established full cooperation by his August 20, 2018 letter to CSE alerting CSE that the proposed program and proposed school was not appropriate (Exh. C) and his openness to an appropriate placement. Tuition reimbursement to be reduced or denied if the parent (1) did not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the child from the public school or by written notice 10 business days before such removal (2) did not make the student available for an evaluation requested by the district prior to his “removal”, (3) took actions determined to be unreasonable. 28 U.S.C. Section 1412(a)(10)(c)(ii). I find the parent informed the CSE that he intended to continue to enroll the STUDENT at for the 2018-2019 school year when no appropriate program or placement was offered after the most recent CSE meeting and I find the parent complied with the requirements of 28 U.S.C. Section 1412(a)(10)(c)(iii). I find the equitable considerations do support the parents' claim for reimbursement. In this case, the parents fully cooperated with the district to the best of their ability. I find that parents who have satisfied each of the Burlington factors have a right to retroactive direct tuition payment relief (Mr. and Mrs. 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 his lack of financial resources to pay the tuition by his tax return (Exh. DD). I credit the parent's testimony and I find the parents lacked the financial resources to pay the tuition for the 2018-2019 school year. I find the parents meet the criteria for prospective funding for the cost of the 2018-2019 tuition at . Further, since the 2019-2020 school year has ended, the parent is entitled to direct retroactive payment and reimbursement.

The parents’ attorney requested reimbursement/direct funding for transportation to and from for the 2019-2020 school year. The parents' attorney asserted that "New York State education law requires that the district... provide suitable transportation up to a distance of fifty miles to and from a nonpublic school which a child with a handicapping condition attends if such child has been so identified by the local committee on special education and such child attends such school for the purpose of receiving services or programs similar to special educational programs recommended for such child by the local committee on special education. N.Y. EDUC. LAW § 4402(4)(d)" (Exh. VI/T at 13).

I find that the STUDENT was a student with a disability that the parents were entitled to transportation for their son to attend

Order

Therefore, is hereby ordered that the Department of Education for the 2018-2019 school year reimburse the parents for tuition in the amount of $7,000 and provide direct funding to for tuition in the amount of $113,000 and provide direct funding to for transportation costs in the amount of $12,000 and for 2019-2020 school year to reimburse the parents for tuition in the amount of $2,000 and provide direct funding to for tuition in the amount of $118,000 and provide direct funding to for transportation costs in the amount of $2,400.

Dated: May 14, 2020

LINDA S. AGOSTON, ESQ.

Impartial Hearing Officer

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 SEPTEMBER 20, 2019

vf Decision on Extension, 8/26/19, 1 p. IHO

DOCUMENTATION ENTERED INTO THE RECORD ON NOVEMBER 5, 2019

IT Decision on Extension, 10/25/19, 1 p. IHO

DOCUMENTATION ENTERED INTO THE RECORD ON MARCH 2, 20120

A. Impartial hearing request, 7/10/17, 2 pp. Parents

B. Letter from parents with fax confirmation, 10/30/18, 2 pp. Parents

C. Letter from parents, 8/20/18, 1 p. Parents

D. Program description, Undated, 2 pp. Parents

E. Classroom schedule, 2018/2019, 1 p, Parents

F. Progress report from, 11/26/18, 6 pp. Parents

G. Speech and language initial evaluation, November 2018, 6 pp. Parents

H. Progress report from, Undated, 3 pp. Parents

I. PT report, 11/26/18, 2 pp. Parents J OT initial assessment, 11/26/18, 5 pp. Parents

K. OT progress report, March 2019, 3 pp. Parents

L. PT progress report, March 2019, 2 pp. Parents

M. Speech and language progress report, 3/15/19, 3 pp. Parents

N. Speech and language final evaluation/summary of. progress, 6/13/19, 10 pp. Parents O OT initial assessment, June 2019, 5 pp. Parents

P. Annual assessment report, June 2019, 14 pp. Parents

Q. Enrollment contract, 3/22/18, 4 pp. Parents

R. Affidavit of payment, 2/12/20, 1 p.. Parents Ss U.S. individual income tax return, 2017, 2 pp. Parents

T. Amended impartial hearing request, 10/31/19, 3 pp. Parents

U. Ten-day notice letter, 8/20/19, 2 pp. Parents

V. Classroom schedule, 2019/2020, 1 p. Parents

W. Background report from, 11/18/19, 6 pp. Parents xX. PT report, December 2019, 3 pp. Parents

Y. Speech and language progress report, 12/2/19, 3 pp. Parents

Z. OT progress report, December 2019, 3 pp. Parents

AA. _ PT progress report, March 2020, 3 pp. Parents

BB. ~ Enrollment contract, 5/22/19, 5 pp. Parents

CC. Affidavit of payment, 2/12/20, 1 p. Parents DD — USS. individual income tax return, 2018, 1 p Parents

l. IEP, 12/15/17, 28 p. District 2 PWN, 1/31/18, 4 pp. District

3. IEP, 12/20/18, 28 pp. District DOE

4. CSE minutes, 12/20/18, 1 pp. District 5 PWN, 1/10/19, 4 pp. District DOE

6. School location letter, 12/5/17, 2 pp. District DOE

7. Psychoeducational evaluation, 12/5/17, 5ep. District DOE

8. PWN and school location letter for 2019/2020, 5/28/19, 6 pp. District DOE

9. WITHDRAWN vf Decision on Extension, 8/29/19, 1 p. IHO I Decision on extension, 10/25/19, 1 p. THO IIT Decision on extension, 2/3/20, 1 p. IHO IV Decision on extension, 3/2/20, 1 p. THO POST HEARING SUBMISSION V Decision on Extension, 3/23/20, 1 p. THO VI Decision on Extension, 4/23/20, 1 p. IHO ViIT District's Closing Statement, 5/1/1205 pp. THO VII Parents' Closing Brief, 5/1/20, 15 pp. IHO DOE

EE. Payment for Transportations, 5/1/20, 2 pp. Parents

New York City Department of Education, Impartial Hearing Decision