New Rochelle City School District, Impartial Hearing Decision

Distributed to parties by IHO on the above decision date

THE UNIVERSITY OF THE STATE OF NEW YORK

NEW YORK STATE EDUCATION DEPARTMENT

_____________________________________________

Findings of Fact

and Decision

Case # 529163

Findings of Fact

and Decision

Case # 529163 In the Matter of [REDACTED]

On behalf of [REDACTED],

Petitioners, and

New Rochelle City School District,

Respondent.

_____________________________________________

INTRODUCTION

This case was brought before me upon my designation as impartial hearing officer (IHO) to hear this matter, on September 19, 2019, pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. § 1415 (f)(1). On September 4, 2019, a due process complaint notice (DPCN, or hearing request) was filed by petitioners [REDACTED] ([REDACTED], [REDACTED], parents or parent) on behalf of [REDACTED] ([REDACTED]), arguing that the [REDACTED] City School District ([REDACTED], or district) had failed to provide [REDACTED] with a free appropriate public education (FAPE). There were several prehearing conferences during which the parties discussed possible settlement. An Amended DPCN was filed on March 12, 2020, seeking tuition and costs for the child’s enrollment at [REDACTED] at [REDACTED] for the 2019-2020 school year, as well as costs related to transportation and evaluations. The hearing convened on November 17, November 24, December 3, and December 9, 2020. A submission schedule for post-hearing briefs was established and post-hearing submissions and accompanying documents received on February 15, 2021.

Appearing for the district was [REDACTED. Appearing for the parent was [REDACTED], of [REDACTED].

PARENT AND DISTRICT POSITIONS

Due process complaint notice. The parents’ initial DPCN, dated September 4, 2019, stated that the district had failed to convene any IEP meeting for [REDACTED]s 2019-2020 school year, and thus failed to develop any written IEP plan or placement recommendation for him. Claims also included child find violation, failure to provide prior written notice, failed to convene a duly constituted IEP meeting, failure to develop an appropriate FBA/BIP, failure to gather sufficient information to develop an IEP, failure to conduct needed evaluations, failure to meaningfully communicate with student’s parents, failure to provide appropriate goals and objectives, failure to meaningfully discuss methodology implications, failure to provide an appropriate program with appropriate related services, and a placement for the child, failure to recommend special education transportation, and failure to provide adequate training and supervision of its staff. Exs. 1, A.

The parents’ Amended DPCN argued that the district failed to provide the student with a FAPE for the 2019-2020 school year, repeating all of the previous claims in the initial DPCN. The DPCN argued that the district violated Child Find provisions, failing to evaluate [REDACTED] in a reasonable time and failing to convene a timely IEP meeting, failing to recommend a timely and appropriate program (including claims regarding class size, and related services), failing to provide the parent with a prior written notice, failing to convene a meeting with required participants, failing to develop an FBA and BIP for [REDACTED], failing to conduct evaluations, failing to consider or reimburse [REDACTED]’s parents for privately obtained evaluations, failed to timely provide a copy of IEP to parents, failed to meaningfully include parents in development of the IEP, IEP failed to develop appropriate goals, failed to consider “methodology implications,” failed to timely offer an appropriate placement recommendation, failed to recommend any special education transportation for [REDACTED], fails to provide adequate training or supervision for its staff, failed to disclose information that it had a duty to disclose, and failed to respond to parents request for information. Exs. 3, B.

As relief, the parent asked for “tuition and costs at [REDACTED] at [REDACTED] for the 2019-2020 school year, transportation or associated costs to and from the school, and all costs associated with [REDACTED]evaluation. Exs. 3, B. At hearing on November 17, 2020, the parent confirmed that the parent was asking for reimbursement, but only for the on-religious component of the school, as well as transportation. Tr. 25. At hearing on December 9, 2020, the parent attorney confirmed that the parent was not requesting reimbursement for the religious portion of the tuition, stating that the request for transportation or costs of transportation and the requests for all costs associated with [REDACTED]evaluation were withdrawn. Tr. 743-744. The parent withdrew claims for transportation, and for the privately obtained evaluation of [REDACTED]. The parent also clarified they were not seeking payment for the religious portion of the tuition. Tr. 743-744.

The district provide a written response to the initial complaint, dated September 16, 2019, and to the amended complaint, dated April 3, 2020. The response denied the several allegations, stating that the district had recommended an appropriate setting for the student, the parents had delayed in providing the district with proof of age and residency, and that part of the complaint is frivolous, unreasonable, and without legal or factual foundation, asking that the relief requested should be denied and the complaint dismissed. Exs. 2, 4.

FINDINGS OF FACT

Background. [REDACTED] is a child resident in [REDACTED], who was in the [REDACTED] grade at [REDACTED] at [REDACTED] ([REDACTED] [REDACTED], or [REDACTED]) in the 2019-2020 school year. [REDACTED] [REDACTED] is a small special education program founded in 2018 and housed within [REDACTED], a larger school of an estimated [REDACTED]students.

At age [REDACTED], [REDACTED]was very sensitive to lots of different things, smells and tastes, and he would have very frequent meltdowns and temper tantrums [REDACTED] He was attending [REDACTED] and evaluated by [REDACTED], which found he had significant sensory deficits. [REDACTED], who had entered [REDACTED], remained there through [REDACTED]grade. Tr. 525, 599-600, 629-632.

In [REDACTED] grade, he transferred to [REDACTED], and services were transferred to the [REDACTED]school district. He was [REDACTED]at the end of [REDACTED]grade. Tr. 691-694. Exs. 19, D. He continued at [REDACTED] in the [REDACTED]grade, presenting with difficulties that the school was not able to meet his needs. Tr. 74. At [REDACTED], he was mostly absent inside the classroom environment, but would have meltdowns, not engaging, ripping up papers, screaming, cursing, and running away. Tr. 699-700. At the time, the parents were unsure whether his behaviors, and struggles with coming from an academic or an emotional place. Tr. 698.

As described by [REDACTED], who conducted a neuropsychological evaluation of [REDACTED] in April of his [REDACTED] grade year, with services and supports decreased his behavior and functioning in the classroom had deteriorated to a point suggesting that services were crucial and not having them was detrimental to him being in the classroom and being a student. Tr. 350, 634-631, 640.

Evaluation. In the neuropsychological evaluation conducted in April 2019, [REDACTED] reported diagnoses that included ADHD, combined presentation, moderate; generalized anxiety disorder, provisional; other specified disruptive, impulse control, and conduct disorder, due to anxiety and ADHD; and developmental coordination disorder. Her evaluation noted that his true cognitive profile suggested a very bright young man, with significant executive functioning and emotional challenges, which limit his capacity to express his potential. She wrote that both objective measures and behavior reports confirm his ongoing difficulties with executive skills, specifically not always processing information efficiently, which impacts his memory and stamina. His difficulties with attention and impulse control significantly impact his focus and work completion in the classroom and at home. While he demonstrates inattention and oppositional behavior, his underlying anxiety seems to be the more pressing concern and perhaps fuels his behavioral responses in other arenas.

[REDACTED] reported that the combination of impulsivity, inattention, and anxiety all contribute to trouble responding appropriately to external demands. She made several academic recommendations and social emotional recommendations. The report stated that he requires a smaller class size and higher student-teacher ratio, specifying a 12:1:1 ratio, and also stating he should be with children who have strong intellectual abilities, and are working on grade level curriculum, while not being placed with children significant aggression or more disturbed behaviors. She gave specific suggestions for reading comprehension, writing, and math, as well as management needs. She stated that a behavior intervention plan should be established, and he should have an updated occupational therapy evaluation and an assistive technology evaluation. She also recommended a future goal to build emotional awareness and learn effective coping strategies, utilizing recommended strategies from Cognitive Behavioral Therapy (CBT) and/or Dialectical Behavior Therapy (DBT). Exs. 19, D.

[REDACTED] described [REDACTED] as a very charming child socially when he wants to be, explaining that it’s one of his strengths, along with his creativity and drawing ability. He really struggles with anxiety and discomfort in the world around him, is very sensitive to many different things, such as the fit of clothing or the texture of food, and he can’t process his frustration. He would have temper tantrums, start kicking, throwing things, cursing, getting really angry. He’s very rigid and has a very low tolerance for anything that doesn’t fit the way he sees the world. He gets angry at his drawing talent, because he blames it for his inability to focus in school and blames his art for landing him in a special education program. He feels shame and embarrassment and doesn’t want to be labeled. He also has some OCD behaviors, collecting garbage, and having a routine about how things should be lined up in his closet. Tr. 667-673.

Referral to the district. After evaluation, the parents started to look for a new special education school program. They looked at a variety of programs, including [REDACTED], the local neighborhood public school, as well as sectarian and nonsectarian private schools. Tr. 640.

[REDACTED] [REDACTED] as chairperson of the CSE for the [REDACTED] school district was responsible for all private school students, receiving initial referrals, class programs reviews, and conducting CSE meetings to determine eligibility. Tr. 51. [REDACTED] stated that [REDACTED]’s mother emailed in May 2019 requesting a CSE meeting for [REDACTED], who would be entering the [REDACTED] grade in Fall 2019. By email dated May 9, 2019, [REDACTED] requested a CSE meeting. She wrote that [REDACTED] was attending [REDACTED] in [REDACTED] but struggling; they were not sure about appropriate placement and wanted to discuss options in [REDACTED]. She wrote that a private neuropsychological evaluation had just been completed and promised to share it as soon as it was received, specifying that she would like to begin the process of scheduling. Tr. 56-58, Exs. 7, F.

The email was forwarded to [REDACTED] by [REDACTED], the district’s Director of Special and Alternative Education. [REDACTED] responded by email dated May 10, 2019 asking for a signed letter referring the child to the committee. She explained that a signed letter allows the CSE to review the letter, and do any specific evaluations that need to be conducted. A signed letter from the parent, dated May 11, 2019, stating the parent was referring her son [REDACTED] to the CSE was received, along with the completed neuropsychological report. Tr. 58-60; Exs. 8, 9, G, H.

Application to [REDACTED]. The parents completed an application to [REDACTED] on May 20, 2019. The application asks where the parent seeks a free appropriate public education from the school district and is “applying to [REDACTED] only in an effort to explore all options” to which the parents checked yes. Ex. 21. [REDACTED] explained that she reported areas of concern as “rigidity, inflexibility, disengagement in the classroom, and oppositional behaviors,” as reported by staff at [REDACTED], and she was seeing rigidity and inflexibility at home as well. She agreed he hadn’t any difficulty in reading or writing, but when asked about academic concerns, stated that she thought disengagement in the classroom was an academic concern. Tr. 704-705; Ex. 21. He was accepted for the school year 2019-2020. Tr. 436.

Referral to the district. The district responded to [REDACTED]’s referral by sending a letter, dated June 20, 2019, asking the parent to go to their home zoned school to register the child, which would activate the child in the district’s system in order to expedite the CSE process. The letter acknowledged receipt of the neuropsychological evaluation and requested additional forms and reports. The letter, under [REDACTED] [REDACTED]’s signature, stated that when the requested information was received, “I will treat your email as a referral to the CSE and schedule the evaluations needed,” adding that permission forms would be sent under separate cover. [REDACTED] [REDACTED] explained that providing proof of age and residency was required as the child wasn’t in the district’s data management system. Tr. 60-61; Ex. 10. Although the district had been transporting [REDACTED] to nonpublic schools, she did not know which students were receiving transportation as the district did not have access to the transportation software at the time. Tr. 61-62.

As instructed, [REDACTED] tried to contact [REDACTED] [REDACTED], but due to a nonworking phone line was unable to reach her until July 19, 2019; she was also out of town when she was trying to contact [REDACTED] [REDACTED] to provide proof of age and residency, from early to mid-July. She followed up with a letter to [REDACTED] [REDACTED] at the end of July. Tr. 646-647, 711-712; Ex. K. [REDACTED] explained that the parents were out of town and couldn’t pick up the registration packet physically, but at the end of July her husband took the package. Tr. 648-649. [REDACTED] [REDACTED] did not recall any verbal communication with the parent, but when checking with the database [REDACTED] showed up in the system about the end of July. Tr. 62-64.

Upon receiving proof of age and residency, the parent was sent informed consent forms for evaluations. [REDACTED] [REDACTED] stated that the district wanted an updated educational evaluation, but the cognitive information in the neuropsychological evaluation was within the three-year timeline, so that wasn’t requested. The notice from the district, dated August 6, 2019, stated the child had been referred to the CSE and requested the parents to provide consent for a social history, medical health records, and an educational evaluation. Parents received a parent guide to special education, a consent for initial evaluation, and a procedural safeguards notice. Tr. 65-66, 713-714; Ex. 11. The parents returned the signed consent forms, consenting to social history, medical health records, and educational evaluation, returned by letter dated August 9, 2019.^[1] Tr. 66- 67; Exs. 12, L.

By letter to [REDACTED] [REDACTED] dated August 19, 2019, the parents noted the delay in convening the requested IEP meeting and the upcoming start of the 2019-2020 school year. The letter, while stating that the parents remained open to considering appropriate programs and placements within the district, indicated that the child would be placed at [REDACTED] at [REDACTED] for the 2019-2020 school year and the parents would be seeking reimbursement and/or funding for the tuition and transportation costs. Ex. 13.

By email dated August 23, 2019, the district scheduled a CSE meeting for September 16, 2019. Ex. 15.

The district decided to conduct the educational evaluation and realized it did not have a signed consent for a classroom observation. A revised prior written with revised consent form was sent out, dated August 23, 2010, adding the request for a classroom observation to the list of evaluations for which the parent had already submitted signed consent. Tr. 67; Exs. 12, 14, L, N. The parent returned the signed consent, dated August 28, 2019.^[2] (The letter had a date stamp of September 28, 2019 crossed out, and a date stamp of September 3, 2019, the day following Labor Day. The fax date/time indicated the preceding Wednesday, August 28, 2019, 12:42 PM. Tr. 68-69; Exs. 14, 15, 16, N.

Due Process Complaint Notice. [REDACTED] began at [REDACTED] on September 4, 2019. Tr. 635-655. It was the same day that the parents filed the initial DPCN claiming that the district had failed to provide [REDACTED] with a FAPE.

Observation and educational evaluation. [REDACTED] [REDACTED], the district evaluator, attempted to contact [REDACTED] officials to schedule the evaluations, but due to the timeframe they did not make him available for the evaluation or observation. Tr. 70-71. [REDACTED] [REDACTED] has certification as a general education teacher in lower and middle grades, and as a teacher for students with disabilities in lower and middle grades. Upon received a routing slip and consent from the parent, receipt noted as September 3, 2019, she attempted to reach out to the school about observing him in class and conducting an educational evaluation. She reached out three or four times between September 3 and September 9, 2019, anticipating it might be tricky because it was the very beginning of the school year. She finally got in touch with someone at [REDACTED] on September 9, 2019, and was told that it was “just too early” in the year to come in to do that work, that they were still getting to know the student, and it would be disruptive to have her come in. She then called [REDACTED]’s mother, who mentioned that she had had a full evaluation of [REDACTED] done the summer before. Tr. 723-728.

[REDACTED] [REDACTED] emailed [REDACTED] [REDACTED], the chairperson, advising that [REDACTED] was “declining/refusing to have him observed/evaluated prior to the scheduled CSE meeting on 9/16,” and that [REDACTED]’s mother had mentioned a full evaluation done over the summer, and awaiting instructions on how to proceed. Tr. 723-728. [REDACTED] [REDACTED] stated that she was able to turn reports around pretty quickly, and that she would have been able to do her work any time up until the CSE meeting date, the refusal stood out to her as being “such a definitive answer” that she wouldn’t have access to the student. Tr. 734, 737-739. [REDACTED] testified that she was first contacted by [REDACTED] [REDACTED] on September 5, 2019, the day after [REDACTED] began at [REDACTED]. [REDACTED] [REDACTED] asked if she wasn’t able to get access at [REDACTED] would [REDACTED] consider bringing to City Hall to have him evaluated there and she said she would. Tr. 635-655.

On September 14, 2019, the Saturday before the scheduled Monday meeting, [REDACTED] [REDACTED] emailed the parent to let them know that the school was not making the child available for testing, but did not receive any response from the parent. Tr. 71; Ex. Q. She said she first learned about it not happening over the weekend on September 14, 2019, when she received the email from [REDACTED] [REDACTED], saying that they had not been given access to [REDACTED] at [REDACTED]. Tr. 653-655. She responded by email on September 15, 2019, stating that it was the first she had heard of this issue, saying that she wished the district would have reached out earlier to coordinate, and asking if rescheduling the IEP meeting was needed. Tr. 655; Ex. Q. The district proceeding with scheduling a CSE meeting, because of the due process complaint notice and the fact that it already had the neuropsychological evaluation. Tr. 70.

CSE meeting, September 16, 2019. The CSE meeting was conducted on September 16, 2019. According to [REDACTED] [REDACTED], they had medical records, [REDACTED]’s neuropsychological evaluation, a social history conducted by the district, declassification information from [REDACTED], and the [REDACTED]grade report card from [REDACTED]. Tr. 72-73; Exs. 17, 18.

Attending the meeting were [REDACTED]’s parents, [REDACTED], [REDACTED], the district’s CSE psychologist, [REDACTED] [REDACTED], a special education teacher, and [REDACTED], Director of the [REDACTED] [REDACTED] program. Tr. 78, 89. At the time, [REDACTED] was at [REDACTED] for about nine days. [REDACTED] participated at the meeting and shared that [REDACTED] was on around a fourth to fifth grade level in both reading and math, and was very artistic, but had difficulty engaging in the classes. She said he was dysregulated. Tr. 75-76. [REDACTED] said that they talked about [REDACTED], discussing his strengths, his weaknesses, and his deficits. [REDACTED] shared the challenges [REDACTED] had been going through in his first days at [REDACTED]. [REDACTED] said it was really rough for him to acclimate. He was not compliant or happy about having to go to [REDACTED] and with his oppositional tendencies, he was not engaging in the classroom lessons. Tr. 656-658.

The committee reviewed the neuropsychological evaluation, noting that [REDACTED] was diagnosed with ADHD, and generalized anxiety disorder. [REDACTED] described the report at the meeting, stating that [REDACTED] was functioning cognitively within the average to high average range, and [REDACTED] had recommended a small class of about 12 students, with dialectical behavior therapy (DBT). Tr. 74-75. According to [REDACTED], the neuropsychological evaluation indicated a cognitive assessment with results in the high average range, overall, at a 77-percentile rank. [REDACTED] had intact cognitive processing ability, with visual spatial reasoning capacity as an extreme strength, and relative weaknesses in visual scanning, visual discrimination, and paper and pencil processing speed. Reasoning and problem-solving were very strong when using language and his visual system, but there were relative weaknesses in cognitive proficiency, specifically working memory and processing speed. Tr. 165-167; Exs. 19, D. Results in the NEPSY indicated average language skills, most of the scores within the average to high average range, although [REDACTED] stated that executive functioning deficits do not always emerge in the one-to-one setting of an assessment. Tr. 165-171. In addition, other testing showed planning skills as a relative weakness, at the 16th percentile rank. [REDACTED] explained that executive functioning involves facilitators and inhibitors, the latter related to emotional regulation and impulse control, which was something that seemed to be the case with [REDACTED]. The behavioral regulation Index was moderately elevated, and he showed clinically significant difficulties with emotional regulation. His overall global executive composite was clinically significant, suggesting executive functioning deficits that would likely impacts Good functioning in school. There was some differences between the reports by the parents and the teacher, the parents reporting emotional control within normal limits and a higher level of significant concerns some areas. Tr. 171-178. They rated [REDACTED] as being clinically significant, at the 99th percentile, in terms of aggression, and conduct problems, usually described his rule breaking. Internalizing problems were all within the normal range with the exception of a mild elevation in depression. Teachers similarly identified clinically significant school problems and a clinically significant behavioral index. [REDACTED] summed up the evaluation as saying [REDACTED] has intact cognitive intellectual capability, although writing may be laborious to him; he has the internal functional skill to do well in school were it not for these other issues, including things like difficulties with attention, regulation, problems with executive functioning, problems with anxiety. [REDACTED] noted that [REDACTED] had identified the general anxiety disorder, provisional, and a motor coordination disorder that might impact his writing, stating that these were things to get in the way of [REDACTED] deploying his very good cognitive and academic skills. If these things were brought under control, he could be an exceptional student. Tr. 178-183.

The district classified [REDACTED] is a student with other health impairments, based on information concerning his dysregulation and his anxiety. There was no disagreement as to the classification category. Tr. 76-77.

Goals were discussed, and there were no objections. Goals included two writing goals, one math goal, and four social/emotional/behavioral goals. Ex. 20. The parents did not request any goals that were not adopted. Tr. 79. [REDACTED] described the writing and math goals as addressing some executive functioning deficits, noting the highlighting and graphic organizers specified. In discussing the social emotional goals, he noted the goals dealing with anxious and withdrawn behaviors, and frustration, and observed that frustration tolerance, and anxiety were identified as problems in [REDACTED]’s evaluation. He stated that he thought these were appropriate goals. Tr. 191-195; Exs. 19, 20, D. When asked about the goals, [REDACTED] also stated that they seemed to tap into part of [REDACTED]’s challenges, in writing and math, but focusing on the executive functioning issues, and not on the challenges of orienting himself and being willing to complete the tasks. Tr. 380-381. She stated that her report on writing indicated more of a lack of following directions than a writing deficit and agreed that the language in the first goal was what she wrote. She conceded that the second goal was also the skill she had suggested in her evaluation. She stated that the district’s goals were consistent with her recommendations as they were written. Tr. 408-409. She also agreed that the goal for orienting to completing this task sounds like a social/emotional goal, which she had looked at. Tr. 418. She described the noted recommendations in her evaluation as strategies as opposed to goals, because the practical aspect of what an academic goal looks like in the classroom was not something she creates. Tr. 419-422.

[REDACTED] also noted recommended program modifications and accommodations in [REDACTED]’s evaluation that were included on the IEP, including preferential seating, refocusing, redirection, and visual cues for focus. He noted that the accommodations recommended by [REDACTED] were included in the IEP. Tr. 187-190, 196; Exs. 19, 20, D.

The committee considered resource room, co-teaching, special class, co-teaching setting, as well as the district’s [REDACTED] 12:1:2 program ([REDACTED], or PAT). The IEP recommended the [REDACTED] special class, five hours and 30 minutes daily. In addition, it recommended counseling once weekly for 30 minutes on an individual basis, and once weekly for 30 minutes in a small group. Ex. 20. It also stated that the student needed a functional behavior assessment to be conducted to determine a behavior intervention plan. Program modifications and accommodations also included text-to-speech software, access to computer, and graphic organizers, altering writing assignments, refocusing, and redirection, check for understanding of instructions, use of visual aids, especially in math class throughout the school day, movement breaks throughout the school day, and use of manipulative, especially in a math class. Ex. 20. [REDACTED] [REDACTED], who was teaching the [REDACTED] class that was recommended for the child, also described the IEP goals as consistent with [REDACTED]’s recommended skills, and noted the modifications and accommodations on the IEP as part of the general curriculum in the [REDACTED]. Tr. 199-305. [REDACTED] stated that she thought he needed movement breaks during class, to help with his attention deficits, a graphic organizer to help with planning component of writing, refocusing in the direction to help get him back on track, as well as fidget toys or other items as less disruptive than the drawing he tended to do. Tr. 411-413.

The district recommended the [REDACTED] as most appropriate for [REDACTED], based on his need to access support throughout the school day. Tr. 79-80. According to [REDACTED] [REDACTED], the recommendation provided [REDACTED] with access to the small class setting, similar to what was recommended in the neuropsychological evaluation, as well as therapeutic supports for behavior, and opportunities for mainstreaming. Tr. 91. [REDACTED] also thought the program was appropriate for the student, noting it was consistent with [REDACTED]’s recommendation for a 12:1:1 program, although beyond that, as a 12:1:2 program is designed for students with disabilities that get in the way them accessing the general education curriculum, and there is also a psychologist assigned specifically to address social/emotional functioning. Tr. 185-187. He also noted that [REDACTED]’s recommendation was that [REDACTED] be in a group with peers with strong intellectual abilities working on grade level, and not with students presenting with conduct disorders, stating that students with that diagnosis are not placed in the [REDACTED]. Tr. 195-196. He stated that individual and group counseling are programmatic in the [REDACTED]class, part of the program design, consistent with [REDACTED]’s recommendation. Tr. 197. He thought it was an ideal program for [REDACTED], addressing many of the concerns identified in the evaluation, providing an academic curricula to meet his needs, but addressing his vulnerabilities in anxiety, and attentional regulatory issues, and executive functioning, with a structured supportive well-staffed program. Tr. 195-199. Mr. [REDACTED] also noted the [REDACTED] as consistent with [REDACTED]’s recommendation for the same reasons. Tr. 297-298. [REDACTED] said she was told that it was a special education class for children with typical cognitive abilities, who had a hard time regulating their emotions, with opportunities for mainstreaming. Tr. 659.

[REDACTED] recalled the parent’s comments, specifically that the child’s father stated that [REDACTED] struggles with anxiety, which gets in the way of him attempting challenging tasks. Tr. 184. [REDACTED]indicating he was in a much smaller class than 12 students, and still dysregulated, and she felt that he required a smaller class setting than was recommended. Tr. 86-87. The parents did not express a preference concerning the program recommendation at the meeting, neither agreement nor disagreement, indicating they would like to see the program prior to making a decision. Tr. 80, 659-660.

The CSE recommended counseling for the child. Tr. 82. The CSE also recommended a functional behavioral assessment to be conducted preliminary to development of the behavior intervention plan. Tr. 83-84. [REDACTED] discussed a behavior contract for [REDACTED] at [REDACTED], which withheld mainstreaming classes when he was not showing appropriate behavior. Tr. 83. The behavior contract lists three “school rules” to treat others with respect, complete work assignments, and respect school property; if [REDACTED] follows the rules he has “privileges” to mainstream with fifth grade for specialties of PE, science, STEM, voice and choice, while not following the rules he would not be allowed to attend the next mainstream activity. Ex. 24. [REDACTED] [REDACTED] stated the behavior contract was not educationally appropriate, as it takes away a student’s access to typically developing peers, which is negative reinforcement. She did not recall it being a document reviewed at the CSE meeting. Tr. 87-89. [REDACTED] recalled that [REDACTED] recommended a behavior intervention plan, and that one of the parents mentioned that triggers for [REDACTED] were unknown, and the CSE recommended an FBA and BIP if it was warranted based on the assessment. Tr. 196. Despite the recommendation, the district did not conduct an FBA as the child’s placement at [REDACTED] made collection and accuracy of data not possible. Tr. 83-84.

Tour of [REDACTED]. The program had been described as a special education class for children with typical cognitive abilities who had a hard time regulating their emotions and offering opportunities for mainstreaming. [REDACTED] stated that she was open-minded to a public-school program for [REDACTED]. Tr. 716. At the meeting, the parents said that they were open-minded, but they didn’t know much about the program and wanted to take the tour and visit the program “before making our decision.” Tr. 80, 659-660. There was some confusion described by [REDACTED] in scheduling, who indicated her availability on two days, then assumed the visit was not scheduled and made other plans. In testimony, she stated it took a little bit of time to find another date to get to the school, which is why she didn’t get there until October. Tr. 660-661.

[REDACTED] met with [REDACTED], the facilitator of the elementary schools, and [REDACTED], the psychologist for the [REDACTED]. They described the program and she saw a classroom with about 10 boys, and a teacher and aide in the classroom. The classroom visit was about 10 minutes, and [REDACTED], the teacher, paused and came over to talk and asked if she had any questions. There were other questions and answers about misbehavior and how it was treated. [REDACTED]and [REDACTED] later told her that it was only after a child had demonstrated the ability for several weeks could an appropriate mainstream class be identified. She was also told the [REDACTED] class was not mainstreamed for specialties, and that the children ate at their own table in the lunchroom, so the only time the children could be mainstreamed was a 30-minute recess period outdoors. Tr. 662-665.

[REDACTED]. According to [REDACTED] [REDACTED], the [REDACTED] has a full-time special education teacher, two additional staff members in the room, and a full-time psychologist who is DBT trained to provide support for the students when they are at the level of dysregulation requiring support. In addition, the team works with the district’s behavior specialist for students who require any functional behavior assessments or behavior intervention plans. Tr. 81.

The program uses a grade level content, Common Core curriculum. Students all have average cognitive abilities at a minimum. Tr. 90. [REDACTED] described the DBT model as an offshoot of cognitive behavior therapy, a social emotional learning curriculum designed to address coping skills, and decision-making, teaching students about mindfulness, and about the stress tolerance, and emotional regulation. Tr. 193-194

[REDACTED], who teaches the [REDACTED] class and taught it in the 2019-2020 school year, described the program as for students with emotional dysregulation who need to learn to manage their emotions more appropriately in a school setting. Tr. 258, 265. He stated that the class that year had 10 students, himself, one aide, and one teaching assistant, the latter a certified position. The class was comprised of [REDACTED] grade and followed a [REDACTED] grade schedule. Eight of the students were [REDACTED]; two were [REDACTED]. Students functioned in a range, most with an average IQ, and two or three who were high average. Some students mainstreamed for different subject areas, some for specials such as computers, art, and music, and some for lunch and recess. He testified that the program looks for any opportunities to introduce students with disabilities into the mainstream with typical peers. Tr. 266-269.

He described DBT as a comprehensive structured treatment plan for children with significant emotional dysregulation, stating that it was a skills-based program targeting mindfulness, to increase awareness of impulses and distress tolerance and regulate emotions proactively. He stated that DBT goes on all day long in the classroom, at some level addressing, each lesson begun in a mindful state followed by introduction of a skill or concept. Tr. 274-278. They teach core curriculum, the [REDACTED] grade schedule, which actually has a longer math and reading block. Tr. 280-281. In addition to twice weekly group counseling, some students received individual counseling. Tr. 279-280. The program works with an organization called CBC, which it provides for DBT instruction. Both teaching aide and teaching assistant have some informal DBT training as well as formal crisis prevention training. CBC meets with a team from the school that includes a half-time social worker and dedicated psychologist on a semimonthly basis, reviewing students and interventions, or making changes to support them. Tr. 270-273.

Determinations are made as to mainstreaming opportunities for individual students, all of whom attend some specials and lunch in the mainstream setting. Usually, it is the subject in which the student is strongest and would have the highest likelihood of academic success and the least amount of frustration. Tr. 283-286. Behavior management in the class uses a token economy system, with participation of the parents and communication to the students throughout the day. Tr. 287-290. [REDACTED] reviewed the child’s neuropsychological evaluation, stating that he looked to be more an ELA person that a math person, and he would look to engage [REDACTED] with the mainstream environment for ELA. He stated that there were number of students functioning at a very similar range in both math and ELA. Tr. 291-294; Exs. 19, D.

[REDACTED] [REDACTED], director of [REDACTED] [REDACTED], is a certified teacher in special education and general education pre-K, kindergarten, and grades one through six. Tr. 427-430; Ex. X. She described it as a school within a school. The school is housed within [REDACTED], a much larger facility. In 2019-2020, there were two classes in the school, a [REDACTED] class with six students, and a [REDACTED] grade class with eight students. Classes have two to three teachers, each class, all special education teachers, with six to eight students in each class. Students have a range of disabilities, including anxiety disorders, speech and language, ADHD, and ASD. All students are verbal and able to handle an academic load. Tr. 431-433. Because the school is within the school, children can mainstream for lunch, recess, physical education, specialties, and different academics, depending on the child and where they will thrive. She stated that the children at [REDACTED] feel they are part of the [REDACTED] community and not just in a special education school. Tr. 433-434.

[REDACTED] testified that they created the program by consulting with [REDACTED]’s report, his previous school, and his parents, and [REDACTED], his therapist. [REDACTED] is a bright child, able to read fluently, but needs scaffolding questions and to be pushed to elaborate. In math, he was missing foundational skills, and felt badly about his performance in math. He didn’t have multiplication facts or division facts. In writing, he struggled to get his thoughts out, and required one-to-one or small group instruction to organize his thoughts and support him. She stated that [REDACTED] is very creative and artistic, and those skills are used for him to show what he knows. His anxiety causes him to misbehave, using inflammatory language and calling people names. When he feels uncomfortable, for any reason, he will refuse to work or participate in the class. Tr. 351, 440-444.

[REDACTED]’s schedule included counseling once a week for 30 minutes and games group also once a week for 30 minutes. Ex. T. According to his schedule, when remote learning began, [REDACTED] had counseling twice a week and social skills/games, once weekly for 30 minutes. Ex. V.

[REDACTED], who was in the [REDACTED] grade, was in the [REDACTED] grade class. There were eight students in his general class, with two teachers in the class, [REDACTED] and [REDACTED]. Tr. 437-439. Other classes at [REDACTED] ranged between individual, one-on-one, and five students for basic academics. [REDACTED] was mainstreamed for several classes by attending [REDACTED] for science, STEM, art, and physical education, as well as lunch and recess. Tr. 454-455, 585-586; Exs. T, U, V.

The school’s comprehensive student plan for [REDACTED] for 2019-2020 included goals for [REDACTED] in reading, math, and writing, and progress updates, completed at three periods throughout the school year. Ex. P. In reading, he was in a group of five students, one in the third grade and in the fourth grade. Practice notes indicated inconsistence performance, noting “wonderful literal comprehension” and ability to make inferences, although requiring prompting for deeper answers, and struggling with written responses. In math, he was in a group with one other student. Progress notes indicated inconsistent participation in lessons and completion of assignments. He made progress in basic math concepts, but incremental progress during the last part of the year, required repetition. At times distracted when called for an answer, it was not clear if he did not know the answer or was not paying attention. In writing, he was in a one-to-one setting. The progress report showed limited progress in writing, noting that despite capacity to write independently, beginning a writing assignment was difficult for him, and required support and reinforcement. Most the time he was resistant to the editing process. In social studies, as the subject became more complicated, he also had a more difficult time producing work. His art teacher noted frustration, but stated that he was starting to express his frustrations verbally and through his art, and had gained a greater sense of self creating art, and showing satisfaction with his work

He had counseling once a week for 30 minutes on an individual basis, which was changed to a group of two for 30 minutes when remote instruction began in March 2020. Games group/social studies was also once weekly for 30 minutes in a group of four, changed to twice weekly, once for 30 minutes and once for 20 minutes, in a group of eight when remote instruction began.

The report from [REDACTED], who taught [REDACTED] in social skills and saw him for counseling, indicated periods of progression and regression regarding engagement with [REDACTED] lessons throughout the school year. He continued to struggle with what being a [REDACTED] student means and his self-concept, although becoming more comfortable with his class placement as the year progressed. She noted he slowly found his place in the broader fifth grade community through mainstream activities. He consistently struggled when faced with academic or social tasks outside his comfort zone. During distance learning, he struggled with behavioral expectations in the online platform, at first refusing to attend class, although attendance improved with additional support; however, he later declined participation in individual sessions or the lunch group. It was stated that staff drew up a behavior contract clarifying expectations, however, it was never produced by the parent. Ex. P.

[REDACTED] noted in the midyear February 2020 report that [REDACTED] staff was in the process of extinguishing his behaviors, specifically the child’s provocative language when frustrated and annoyed, by ignoring it. Ex. P. [REDACTED] [REDACTED] does not take any data on the child’s behaviors; according to [REDACTED], it’s not part of the school’s protocol. Tr. 586-587; Ex. 24.

[REDACTED] was unable to say how many times [REDACTED] was not allowed to attend his mainstream classes because of his behavior and the school’s behavior plan. According to her, it was “cyclical,” and there were times when his anxiety would be at such a level, perhaps from something in the mainstream class. She stated, “We don’t always know what will trigger [[REDACTED]].” She stated that as the year went on, he was able to mainstream more and more, but there were no documents to show the number times he was not allowed to go to mainstream activity, as prescribed in the behavior plan. Tr. 579-581; Ex. 24.

[REDACTED] was unable to state whether the teachers in the mainstream classes [REDACTED] attended at [REDACTED] were certified teachers. Tr. 581. There were no progress reports on mainstream classes nor any report of his grades in those classes. Exs. T, U, V.

[REDACTED] said that [REDACTED] has made meaningful progress, noting that he was really struggling in math, which was his weakest subject; he would get so angry he would rip up papers and throw his math homework, but over the course of the year he strengthened his skills and now math is a stronger subject. Tr. 677-678. In writing, he hated writing. He didn’t want to do it, but when the teacher praised his skills in an otherwise provocative story, he started to write regular stories after that, even writing her a multi-paragraph and detailed card for Mother’s Day, which she described as meaningful progress. In terms of reading, he had refused to read anything, but over the course of the year, he came to read independently, reading by himself every night before he goes to sleep. She stated that she is seeing “really great progress” in terms of academic skills. Tr. 677-679. In terms of emotional skills, he’s able to talk a little more about his anxiety, telling what makes him anxious or when his feelings are hurt. Socially he made a best friend, which operates as a motivator for him. Tr. 679-680. He’s made behavioral progress as well, becoming a participant in a lot of the class discussions. Also, she has seen that when things are hard for him, he is able to pause and calm down a lot faster, bouncing back to himself much faster than he ever did. She said that she did remember the last time she had a tantrum. Tr. 683-684.

Contract. The contract with [REDACTED], dated July 9, 2019, reflected a tuition charge for the 2019-2020 school year of $[REDACTED]. There is also an escape clause in the contract, which provides that if the school is notified by October 15, 2019 that the district is providing a FAPE for the child, tuition will be refunded, other than prorated tuition to the date of withdrawal. Exs. 22, J. An affidavit was submitted reflecting payment by the parents of $[REDACTED], with a balance due of $[REDACTED]. [REDACTED] did not know if they paid the total $[REDACTED], stating her understanding was that because the pandemic and the hearing, they have extra time to pay. Tr. 676-677; Ex. Y.

CONCLUSIONS OF LAW

The decision in this case rests on a determination of the three-pronged test set forth by the United States Supreme Court in the Burlington case, which provided that a board of education may be required to pay for educational services obtained for a child by the child’s parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim. School Committee of the Town of Burlington v. Dept. of Educ., Massachusetts, 471 U.S. 359 (1985); Florence County Sch. Dist. Four v. Carter, 510 US 7 (1993).

ISSUE 1 - Appropriateness of School District Program

An appropriate educational program begins with an IEP that includes a statement of the student’s present levels of academic achievement and functional performance. See 34 CFR §300.320(a)(1); 8 NYCRR §200.4(d)(2)(i); see also Tarlowe v. New York City Bd. Of Educ., 2008 WL 2736027 (SDNY July 3, 2008), noting that a CSE must consider, among other things, the “results of the initial evaluation or most recent evaluation” of the student, as well as the academic, developmental, and functional needs of the student. The IEP must accurately reflect the results of evaluations to identify the student's needs, establish annual goals related to those needs, and provides for the use of appropriate special education services. 34 CFR §300.320(a)(2); 34 CFR §300.320(a)(4); 8 NYCRR §200.4(d)(2)(iii); 8 NYCRR §200.4(d)(2)(v); see Application of the Board of Education, Appeal No. 14-104; Application of the New York City Department of Education, Appeal No. 13-121.

I find that the district met its burden that it provided a FAPE for [REDACTED] in the 2019-2020 school year. The various claims made by the parent are discussed in detail below.

I note to start that the parent withdrew its claims that the district failed to reimburse [REDACTED]’s parents for privately obtained evaluations, and that it failed to recommend any special education transportation for [REDACTED].

Analysis of the remaining claims begins with review of the timeliness of the district’s actions. Regulations provide that the CSE is required to complete evaluation and provide a recommendation for program and services within 60 school days of the receipt of parental consent for evaluation. 20 USC §1414(a)(1)(C); 34 CFR §300.301(c); 8 NYCRR §§200.4(d), 200.4(e). The district argues that because consents were sent to the parent less than three months from the request for a referral and a month of delay was attributable to the parent in providing required proof of age and residency, that with consent received on August 12, 2019 the district was well within the timeframe for conducting the evaluation. Ex. 26. The parent argued that the district did not timely evaluate and convene an IEP meeting for [REDACTED], citing the parent’s request for an IEP meeting in May 2019, months in advance of the 2019-2020 school year, noting the district’s month-long delay in communicating instructions for registration and subsequent delay in requesting written consent from the parent. Ex. AA.

The question presented in this case, however, also requires consideration of when the referral was made. The date of receipt of a referral is the date on which the committee chairperson or the building administrator receives the referral. 8 NYCRR §200.4(a)(2)(iv)(b)(3). Upon receipt of a parental referral, the district must within 10 school days request parent consent to initiate the evaluation. 8 NYCRR §200.4(a)(2)(iv)(a). When receiving a written referral, the district must initiate a referral and promptly request parental consent to evaluate the student to determine if the student need special education services and program. 8 NYCRR §200.4(a)(ii).

Although consent is a determining factor triggering the timeline, the delays in consent can be traced at least in part to delays on the part of the district. Regulation provides a clear answer to the date of referral, in this case May 11, 2019, as determined by the date received by the CSE chair. It was not 10 days after receiving the written referral requested but 40 days later that the district responded to the parent’s referral by sending a letter, dated June 20, 2019, instructing the parent to go to their home zoned school to register the child, basically saying the email would not be treated as a referral until the proof and other requested information was received. As [REDACTED] [REDACTED] stated, [REDACTED] did not show up in the district’s database until the end of July. As a result, consents were actually not sent to the parents until August 6, 2019, and returned signed August 9, 2019, three months after referral.

In regard to the question of timeliness, the district’s failure to meet deadlines for evaluation and review set forth in regulation was based at least in part by the failure to act within the regulatory timeline despite referral by the parents. 8 NYCRR §§200.4(d), 200.4(e). I find the district’s argument that the district’s database was not set up to identify the child and could not identify the child to be without merit. I further discount the district’s argument citing the child’s prior school year at [REDACTED] and saying the parent had waited too long to make the referral as an irrelevant and baseless.

Review in this case requires review of the two-track path of the parents dealing with district and private school. The parent made the application to [REDACTED] on May 20, 2019, a little over a week after the referral to the district. The contract with [REDACTED] was signed July 9, 2019, during the same early to mid-July in which the parent claimed she was out of town and delayed in trying to contact [REDACTED] [REDACTED] for the demanded proof of age and residency. The parent repeated the request for the CSE meeting on August 19, 2019, and by email notice on August 23, 2019, the district scheduled a CSE meeting for September 16, 2019. The DPCN was filed September 3, 2019, the day before the child started at [REDACTED] on September 4, 2019. Despite the request for the CSE review and the pending DPCN complaining of the timeline and delay, when the observation and educational evaluation were delayed because [REDACTED] refused [REDACTED] [REDACTED]’s request for access, the parent then suggested a need to delay the CSE meeting. The parent’s brief actually argues that the district could have rescheduled the meeting, and conducted the observation and assessment, arguing that the continuation of the CSE meeting without the two evaluations was motivated by litigation concerns, a genuinely disingenuous argument given the multiple complaints in the DPCNs and post-hearing brief. Exs.1, 3, 26.

Of particular note was the timeline regarding the parents’ decision-making about [REDACTED]’s enrollment at [REDACTED]. As [REDACTED] stated, the parents sought to tour the district’s recommended program “before making our decision.” The contract with [REDACTED] contained a provision allowing the parents the opportunity to agree to the district’s program by October 15, 2019, without financial cost or other obligation other than a prorated fee for the time the child had been at the school. Ex. J. At the time, it was undisputed that the child not doing well during transition. By contrast, the parent had been told that the [REDACTED] recommended by the district was a special education class for children with typical cognitive abilities who had a hard time regulating their emotions, with opportunities for mainstreaming.

By the parent’s own testimony, the decision was made after the IEP meeting and after the tour of the school. Under the circumstances, I find that the district’s delays in responding to the referral did not operate to adversely affect or otherwise impede the child’s rights. In that regard, I note the decision of the district court in M.N. v. Katonah-Lewisboro requiring identification and evaluation of a child with a disability within a reasonable time, finding the length of time between request for an evaluation and district initiation of the process well below that in cases where courts found a delay to be unreasonable. M.N. v. Katonah-Lewisboro Sch. Dist., Case No. 14-CV-3845 (KMK) (S.D.N.Y. Sep. 14, 2016). Under the circumstances, I do not find a Child Find violation or denial of FAPE by the district.

Turning to the other claims in the DPCN, I find that the district’s recommendation of a program for [REDACTED] was appropriate. Certainly, the [REDACTED] met all the conditions set forth in [REDACTED]’s evaluation, from a 12:1:1 class for children with typical cognitive abilities, who had a hard time regulating their emotions and opportunities for mainstreaming, as well as DBT.

In assessing parent actions and district obligations, the Second Circuit has focused on what is known by the parties at the time a decision is made, discounting retrospective testimony and limiting an analysis of FAPE to that period. R.E. v. New York City Dept. of Educ., 694 F3d 167 (2d Cir. 2012). I find that much of what [REDACTED] described may not have been available to the parent at the IEP meeting and thus retrospective evidence impermissible under the ruling in R.E.

Nevertheless, a comprehensive description of the program was not required for it to meet the standard set forth in the law. The Supreme Court’s decision in Endrew F. held that IDEA requires an educational program “reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances." Endrew F. v. Douglas County School District, 137 S. Ct. 988 (2017). The program the parent saw was clearly one that met the standards set out by the Court. As the child was already attending [REDACTED], the only disagreement [REDACTED] had was with the limitations described by [REDACTED] about a process for mainstreaming, not the fact of mainstreaming itself and not enough to make the program inappropriate.

Several of the remaining claims in the DPCN were without any foundation, bordering on frivolous. I decline to comment on consideration of “methodology implications” included in the DPCN, noting that the school’s program stressed DBT, and the parent made no comment at the meeting about methodology. The parents’ main concerns were for the child’s emotional state, as noted in the [REDACTED] application and as reflected in testimony by [REDACTED] and the parent. The child’s major issues were non-academic, without any methodology issues much less implications.

Similarly, the claim that the district had failed to provide the parent with a prior written notice was without basis. The district provided multiple prior written notices, and as of the date of the DPCN, there was no actions requiring further notice from the district. Similarly, the claims that the district failed to disclose information that it had a duty to disclose, and failed to respond to parents request for information were without basis; evidence was undisputed that the parent receipt of a parent guide to special education, a consent for initial evaluation, and a procedural safeguards notice. In addition, the DPCN’s claims that the district fails to provide adequate training or supervision for its staff were just plain silly, irrelevant to this case and outside the authority of this forum. I decline to comment on this claim, other than to describe it as frivolous and meaningless boilerplate.

Also unsupported was the claim that the district failed to convene a meeting with required participants, There was no missing participant at the meeting, which included [REDACTED] [REDACTED], the chairperson, [REDACTED], the school psychologist, and the district’s [REDACTED] [REDACTED] and [REDACTED]’s [REDACTED], both of whom were certified as teachers in special education and general education.

As for the claim that the district failing to conduct evaluations, I note again that the parent’s main concern was non-academic. The IEP noted the neuropsychological evaluation, which included needed cognitive data, as well as parent report and observations, teacher report, medical health records, social history, report card from [REDACTED], teacher report, and counseling progress summary. Ex. 20. As for the recommendation for occupational therapy and assistive technology from [REDACTED], there was no obligation for the district to adopt the doctor’s recommendations. The IEP noted the parent’s statement that there were no physical concerns, and although the district was scrupulous in following [REDACTED]’s recommendations concerning the social/emotional placement [REDACTED] required, it was not obligated to adopt every recommendation in the evaluation. The claim that the district failed to consider privately obtained evaluation is ludicrous, as the evidence was undisputed that it considered [REDACTED]’s evaluation as critical in forming the recommendation.

The claim that the district failed to develop an FBA and BIP for [REDACTED] is also unsupported. A BIP is based on the results of the FBA, including hypotheses as to why the problem behavior occurs, and intervention strategies that include positive behavioral supports and services. A BIP cannot be developed without an FBA, a process that requires data obtained from teachers, providers, and parents, providing a baseline of problem behaviors, with regard to “frequency, duration, intensity and/or latency across activities, settings, people, and time to the day” in sufficient detail to form the basis for behavior intervention plan. 8 NYCRR §§ 200.1(r), 200.1(mmm), 200.22(a).

According to [REDACTED] and also noted in the IEP, one of the child’s parents had complained that they didn’t know what triggers were, to which the CSE recommended an FBA. The parents’ complaint that an FBA was not conducted is unsupported, given the placement at [REDACTED], a school with no interest in finding out the cause of the child’s proble[REDACTED] As [REDACTED] does not collect any data concerning behaviors, the district’s attempt to conduct an FBA would have been futile, merely an exercise to show an effort at regulatory compliance. I note also [REDACTED]’s behavior plan for [REDACTED], a simple three paragraph off-the-shelf document with no attempt to identify the child’s behaviors.

Evidence also supported the district in refuting the claim that the IEP failed to develop appropriate goals. The evidence supported the district’s argument that goals developed at the IEP meeting were appropriate for [REDACTED]. In that area, I credit the testimony of [REDACTED], noting especially the goals targeted at the child’s frustration tolerance and anxiety, as well as the corroboration provided by [REDACTED]’s evaluation and testimony that goals were consistent with strategies recommended in her evaluation.

The IEP and testimony by the participants in the IEP meeting also supported that the parents were meaningfully included in development of the IEP. The district witnesses indicated comments by the parents and lack of objection, and the parent’s testimony included no criticism of the actual participation at the meeting.

For the reasons noted above, I find that the district provided a FAPE for the student in the 2019-2020 school year.

ISSUE 2 – Appropriateness of Private Program

Although the above ruling in the district’s favor on the first prong of the Burlington analysis in relation to the district’s providing a FAPE for the child for the 2019-2020 school year at issue in this case makes further Burlington analysis unnecessary, findings on the second and third prongs are included in this decision for consideration in any possible appeal.

Analysis turns to the second prong of Burlington, under which the parents bear the burden of proving the appropriateness of the services obtained for [REDACTED]. M.S. v. Board of Education of the City of Yonkers, 231 F.3d 96, 104 (2d Cir. 2000); Application of a Child with a Disability, Appeal No. 99-51; Application of a Child with a Disability, Appeal No. 94-29; Application of a Child with a Disability, Appeal No. 95-57. In order to meet that burden, the parents must show that [REDACTED] [REDACTED] offered an educational program designed to meet [REDACTED]’s special education needs. School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); Application of a Child with a Disability, Appeal No. 99-51; Application of a Child with a Disability, Appeal No. 98-76; Application of a Child with a Disability, Appeal No. 94-29. A unilateral placement is only appropriate if it provides education instruction specifically designed to meet the unique needs of a handicapped child. Gagliardo v. Arlington Central School District, 489 F.3d 105 (2d Cir. 2007).

When determining whether the parents' unilateral placement is appropriate, the issue turns on whether that placement is "reasonably calculated to enable the child to receive educational benefits.” Frank G., 459 F.3d 356 (2d Cir. 2006). In Frank G., the Second Circuit explained that to "qualify for reimbursement under Individuals with Disabilities Education Act (IDEA), parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only show 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."

I find the program at [REDACTED] [REDACTED] to be appropriate under the standard set forth in Frank G.

Although the program has merit, I question the restrictiveness of the program, which is more restrictive than the 12:1:1 recommendation of [REDACTED] on which the parents relied in dealing with the district. There were eight students in [REDACTED]’s class, and far fewer in his reading and writing groups, despite a record that did not reflect significant deficits in those areas. The grouping of [REDACTED], then a [REDACTED]grade student, with students at the [REDACTED] grade level, was not designed for his individual needs, but clearly chosen as the only available class in a school consisting of only two classes and only one with students reaching fifth grade level. It runs counter to [REDACTED]’s recommendation that he be placed with children who have strong intellectual abilities and are working on grade level curriculum.

In terms of academics, reports of his performance were mixed. The school’s comprehensive student plan for [REDACTED] for 2019-2020 included goals and progress reports for [REDACTED] in reading, math, and writing, although there was no evidence of his attendance or his performance in mainstream classes of science, STEM, art, and physical education at [REDACTED]. The report of the [REDACTED] classes indicated inconsistent performance in reading, requiring prompting and struggles with written responses. Progress notes in math indicated inconsistent participation in lessons and completion of assignments, and progress in basic math concepts, although incremental progress during the last part of the year. The report showed limited progress in writing, with difficulty beginning an assignment and with editing. Similarly, with more difficult subjects matter in social studies, he showed difficulty producing work. In art, he was starting to express his frustrations verbally and through his art and had gained a greater sense of self creating art and showing satisfaction with his work. I credit [REDACTED]’s description of her son’s performance as showing “really great progress in terms of academic skills,” noting that [REDACTED]’s math skills had strengthened, he had to write regular stories, and by the end of the he had begun to read independently. I credit her conclusion that he had made meaningful progress in academics.

Specifically in regard to [REDACTED]’s behavior, the behavior contract produced by [REDACTED] was clearly not appropriate. On its face, it was a brief recitation of school rules, nothing pertaining to [REDACTED]’s behavioral history, nor his strengths or weaknesses. I credit [REDACTED] [REDACTED]’s testimony that the behavior contract was inappropriate, providing only negative reinforcement, withholding mainstreaming classes when he was not following the school rules. I question even limited effectiveness, given that the mainstream classes mentioned in the plan were not [REDACTED] classes but classes at [REDACTED] to which the child would be sent. The child’s comprehensive plan also confirmed the school’s plan to treat his behavior by ignoring it. It was certainly not the behavior plan envisioned in [REDACTED]’s evaluation, nor was it designed to supply any of the information sought by the parents concerning the child’s triggers. I note the parent’s complaint that an FBA was not conducted, while providing support for this limited version of a true plan. Nor was there any information about whether the behavior plan was enforced, and if so, how many mainstream classes he missed. The ignorance and indifference to tracking the child’s triggers is the opposite of a behavior plan. The fact that [REDACTED] does not collect data on behavior raises serious questions about its work on the student’s behavioral needs.

Nevertheless, the main issues identified for the child extend to the anxiety and ADHD affecting his performance, and I find the school did address those needs. The report in the comprehensive plan from [REDACTED], who taught [REDACTED] in social skills and saw him for counseling, indicated periods of progression and regression regarding engagement with [REDACTED] lessons. She noted that despite continued struggles, he was becoming more comfortable with his placement as the year progressed, finding his place in the “broader fifth grade community” through mainstream activities, although behavioral struggles and declining participation in individual sessions were evident during remote instruction.

In this regard, I again credit the testimony of [REDACTED], who found progress in [REDACTED]’s emotional skills, describing his ability to talk more about his anxiety, explaining what makes him anxious or hurts his feelings. She also noted behavioral progress, although her description of his becoming a participant in a lot of the class discussions was at odds with the school reports. I credit her observations that he has not had a tantrum and is able to pause and calm down a lot faster when faced with difficult things, bouncing back much faster than ever before.

For the reasons noted above, I find the parent did meet its burden of showing the program at [REDACTED] [REDACTED] to be appropriate for [REDACTED].

One note: The religious portion would not be part of any award. Despite [REDACTED]’s testimony that secular instruction amounted to 80 percent of the schedule, I find the secular portion of the schedules submitted to reflect secular education at only 75 percent. Although I am not granting an award in this case, I note for the record that were there to be an award for tuition, it would be limited to 75 percent of the total.

ISSUE 3 - Equitable Considerations

As noted above, although the above rulings make further Burlington analysis unnecessary, findings on the third prong are included for consideration in any possible appeal.

The third prong of the Burlington decision requires a balancing of the equities in determining whether reimbursement should be awarded. The Individuals with Disabilities Education Act (IDEA) provides that an award of tuition reimbursement may be reduced or denied if notwithstanding their being advised that they should do so, parents neither inform the CSE of their disagreement with its proposed placement and their intent to place their child in a private school at public expense at the most recent CSE meeting prior to their removal of the child from public school, nor provide the school district with written notice of such information ten business days before such removal. 20 U.S.C. §1412(a)(10)(C)(iii).

Factors relevant to equitable considerations include whether the withdrawal of the student from public school was justified. The statutory provision serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a FAPE can be provided in the public schools. Greenland Sch. Dist. v. Amy N., 358 F.3d 150 (1st Cir. 2004); see also Frank G., 459 F.3d 356 (2nd Cir. 2006).

The district offered several district objections to equities favoring the parents. In the district’s brief, the argument was made that the parents had no intention to access the district’s program. In addition, the district’s attorney argued that they conspired with their attorney to make unfounded procedural claims, citing family history solely in religious schools, the child’s previous attendance [REDACTED], and the child’s siblings [REDACTED]. Finally, the argument noted that the parents turned down the exact program recommended by the neuropsychological evaluation, showed no intention to access the district’s recommended program, instead enrolling the child at [REDACTED] [REDACTED] with no behavior support, hired attorney and signed contract before providing the district with requested information. Ex. 26.

None of these objections are relevant. I agree that the evidence is persuasive that the parent had no intention of sending the child to the district’s school. Nevertheless, the district’s claim must fail. It’s important to the equitable consideration question as to whether the parents obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA. C.L v. Scarsdale Union Free Sch. Dist., 744 F.3d at 840. In this case, the parent cooperated with the district in its efforts to meet its obligations under the IDEA, specifically agreeing to evaluations of the child, providing the required notice of unilateral placement, and attending the CSE meeting. The pursuit of a private placement is not a basis for denying tuition reimbursement, even assuming all the inconsistencies argued by the district.

Consideration of equitable factors does not support denial of an award for tuition reimbursement.

ORDER

• • Petitioner-parents’ request for reimbursement of tuition costs for [REDACTED]’s enrollment at [REDACTED] [REDACTED] in the 2019-2020 school year is denied.

IT IS SO ORDERED.

Dated: March 1, 2021

S/Nancy Lederman ____ NANCY M. LEDERMAN

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

An Appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for proceedings before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.

WITNESS APPEARANCES

November 17, 2020

[REDACTED] [REDACTED], CSE Chairperson, [REDACTED] CSD

[REDACTED], School psychologist, [REDACTED] CSD

November 24, 2020

[REDACTED] [REDACTED], Special education teacher, [REDACTED] CSD

[REDACTED], Psychologist

[REDACTED], Director, [REDACTED] [REDACTED]

December 3, 2020

[REDACTED], Director, [REDACTED] [REDACTED]

December 9, 2020

[REDACTED], Parent

[REDACTED] [REDACTED], Evaluator, [REDACTED] CSD

EXHIBITS

DISTRICT EXHIBITS

1 Demand for Due Process Complaint, 9/4/19, 9 pages

2 Answer, 9/16/19, 4 pages

3 Amended Demand for Due Process Complaint, 3/12/20, 12 pages

4 Amended Answer, 4/3/20, 3 pages

5 IEP 2017-2018, 2/8, 2017, 11 pages

6 Declassification Statement, 2/6, 2018, 3 pages

7 Email, Request for CSE meeting, [REDACTED], 5/9/19, 1 page

8 Emails, M. [REDACTED] and [REDACTED], 5/10/19, 2 pages

9 Referral, [REDACTED], with IEP, 5/11/19, 13 pages

10 Letter, [REDACTED], 6/20/19, 2 pages

11 Prior Written Notice, 8/6/19, 3 pages

12 Parent Consent for Initial Evaluation, 8/9/19, 2 pages

13 Ten Day Notice, 8/19/19, 1 page

14 Prior Written Notice, 8/23/19, 3 pages

15 Meeting Notice, 8/23/19, 3 pages

16 Letter, [REDACTED], 8/9/19, with signed consent forms, 8/28/19, 4 pages

17 [REDACTED], [REDACTED] Grade Report Card, 2018-2019, 6/27/19, 6 pages

18 Social History, 8/9/19, 4 pages

19 Neuropsychological Evaluation, 4/16/19, 22 pages

20 IEP, 2019-2020, 9/16/19, 10 pages

21 [REDACTED] Application, 5/20/19, 9 pages

22 [REDACTED] Tuition Contract, 2019-2020, 7/9/19, 2 pages

23 Student Information Packet, 7/9/19, 6 pages

24 Behavior Contract, 9/16/19, 1 page

25 Email, [REDACTED], 9/9/19, 1 page

26 Memorandum of Law, [REDACTED], 2/2/21, 30 pages

PARENT EXHIBITS

A Demand for Due Process, 9/04/19, 10 pages

B Amended Demand for Due Process, 3/12/20, 12 pages

C 10-day Letter, 8/19/19, 2 pages

D Neuropsychological Evaluation, [REDACTED], 4/16/19, 22 pages

E CV, [REDACTED], undated, 5 pages

F Email, Request for CSE meeting, [REDACTED], 5/9/19, 1 page

G Emails, [REDACTED] and [REDACTED], 5/10/19, 2 pages

H Referral, [REDACTED], with IEP, 5/11/19, 13 pages

I Emails, [REDACTED], with records release form, 5/17/19, 3 pages

J [REDACTED]s Tuition Contract, 2019-2020, 7/9/19, 1 page

K Letter, [REDACTED], 7/30/19, with [REDACTED] records, 8 pages

L Letter, [REDACTED], 8/9/19, with signed consent forms, 3 pages

M Emails, [REDACTED] and [REDACTED], 8/12/19, 1 page

[REDACTED]

O Program Description, [REDACTED]s, undated, 1 page

P Comprehensive Student Plan, [REDACTED]s, 2019-2020, 12 pages

Q Emails, [REDACTED] and [REDACTED], 9/15/19, 1 page

R Behavior Contract, [REDACTED]s, 9/16/19, 1 page

S Emails, [REDACTED] and [REDACTED], 9/18/19, 2 pages

T School Schedule, [REDACTED]s, 10/30/19, 1 page

U Remote Learning Plan, [REDACTED]s, 3/00/20, 1 page

V Remote Learning Schedule, [REDACTED]s, 4/19/20, 1 page

W Attendance Record, [REDACTED]s, 2019-2020, 1 page

X [REDACTED] Teacher Resumes and Licenses, various dates, 16 pages

Y Affidavit, Tuition, [REDACTED], [REDACTED]s, 11/10/20, 1 page

Z Photo, [REDACTED], undated, 1 page

AA Parents’ Post-Hearing Brief, [REDACTED], 2/8/21, 30 pages

Footnotes

[1] Although the letter had a date stamp of August 12, 2019, a Monday, the fax date/time indicates it was transmitted the prior Friday, at August 9, 2019, 4:11 PM. There were other district exhibits with date stamps days after the fax transmittal noted on the documents. In all cases, I have used the transmittal dates as the dates for the documents.

[2] Although the parents’ letter asserted that the parents had previously supplied “consent for all reasonable requested evaluations and assessments since early May,” in fact there was no evidence of any consent for evaluation signed before August 9, 2019. Exs. 11, 12, N.