Margaretville Central School District, Impartial Hearing Decision

----------------------------------------------- In the Matter of an Impartial Hearing pursuant to Part 200 of the Regulations of the Commissioner of Education

REDACTED and REDACTED on behalf of their minor son, REDACTED

-against- The REDACTED Central School District

Procedural Context

FINDINGS OF FACT AND ORDER

BEDS No. REDACTED NYS ID. No. [Redacted][Redacted]

By letter dated October 29, 2019 1 was appointed to hear the matter of [redacted] and [redacted] on behalf of their minor son, [redacted] versus the Margaretville Central School District (hereinafter "the District") pursuant to the Individuals with Disabilities Education Improvement Act, 20 U.S.C. Section 1415 (f)(l). Thereafter, on November 25, 20 I 9 a pre-hearing conference was convened telephonically for the purpose of developing a litigation calendar and, where possible, framing the issues. For several months, the parties continued to work toward settling the within matter and, in fact, were able to resolve several components of the Parents' Due Process Complaint. Nevertheless, when it became clear that certain matters could not be agreed upon, zoomed hearings were held on April 22, 2020; April 2[Redacted], 2020 and April 24, 2020. On this last occasion, the parties were offered an opportunity to submit closing Memoranda of Law and, as a result, the compliance date for issuing a decision in the above-referenced matter was duly extended to June [Redacted]0, 2020.

Specifically, the Due Process Complaint asserts three claims. At the outset, the initial claim for the 2018-20 I 9 school year alleges a denial of FAPE. Both the District and the Parents have now stipulated that the child was deprived of FAPE during the 2018-2019 school year and as part of their settlement, compensatory education will be furnished by the District. Tr. at 5-6.

The Parents' second claim, notwithstanding the parties' mutual stipulation that [redacted] did not receive FAPE during the 2018-20 I 9 school year, alleges an outstanding programming defect not covered within the parties' stipulation. Tr. at 4-6. Specifically, it is alleged that the District's failure to provide appropriate assistive technology services during this same school year additionally constituted a substantive violation of the child's right to FAPE.

Finally, the third claim in the Parents' Due Process Complaint asserts a denial of FAPE for the 2019-2020 school year based upon the District's failure to offer a program which comports with the least restrictive environment. It additionally alleges that the District's failure to provide appropriate assistive technology services as well as an appropriate behavior intervention plan constituted a substantive violation of the child's right to FAPE. In furtherance thereof, they are seeking compensatory education for the 2019-2020 school year.

It should be noted that subsequent to my appointment, the parties moved to extend the compliance date on various occasions in light of anticipated testimony, scheduling of witnesses, mutually available dates and preparation of closing memoranda. At the commencement of the 2018-2019 school year, the student was approximately eight years old and commencing the third grade. I note that [Redacted] is "a child with a disability" as that term is defined under the IDEA, 20 U.S.C. § 1400 et seq., and was classified as "[redacted]" as that term is defined by 20 U.S.C. § 1401(a)(l). Exh.

24. As the hearing unfolded, testimony offered by each witness was credible and I have concluded that each witness testified. truthfully in accordance with their recollections and as to the opinions they held.

A list of persons in attendance and of evidence is appended hereto.

The School District's Case and Summary of Witness Testimony

[Redacted] testified as lead witness for the School District. Ms. [Redacted] is an assistant principal at the [redacted], a position she has only held for one year. Prior to this, the witness served at [redacted] as a special educator, duly licensed in New York State. She is familiar with [redacted], having been present during his intake.

The witness noted that [redacted] attends the [redacted] Program for Independent Education and Alternate Assessment (hereinafter referenced as "[redacted]"). This program, located in [redacted], services an exclusively disabled population. Tr. at 17. Several building-wide services are offered, including a behavior support team which utilizes positive strategies within the classroom. A positive intervention team is comprised of crisis interventionists who are trained to diffuse emergencies caused by dysregulated students.

Each classroom contains a calming A area. [Redacted] has been placed in a 6: I: 1 classroom designed to meet the needs of 10 students. As part of the programming, groups addressing social skills, occupational therapy and speech are incorporated into the day. [redacted] 's class additionally includes a classroom wide [Redacted] support in the form of a token and check system, a strategy implemented through the positive behavior consultants at the School.

2 The witness noted that the classroom reflects a center-based activity paradigm with additional walls which create smaller, quieter and less stimulating spaces. Tr. at 19. Ms. [Redacted] testified that, prior to the commencement of this class, she requested a behavior support consultation along with training from the Center [redacted]. The students are presented with a curriculum offered by [redacted] and [redacted], programs which lend themselves to instructional differentiation so that each child's needs may be met individually. Tr. at 20. Although the witness was shown a progress report for the remainder of the 2018-2019 school year, Ms. [Redacted] was unable to comment upon the child's academic growth as she had no personal knowledge of[redacted] Tr. at 22; Exh. 99.

Ms. [redacted] noted that the District had requested an updated functional [redacted] analysis (hereinafter referenced as "[redacted]") and behavior plan for [redacted] There are no full-time Board-Certified Behavior Analysts (hereinafter "BCBA[s)") at [redacted] and the witness was uncertain as to social worker [redacted]'s training in developing behavior intervention plans. In addition to the District's request for an [redacted], there was a request for an augmentative assistive [redacted] evaluation. The witness testified that she did not believe there were any. personnel at [redacted], knowledgeable enough to provide this evaluation and, as a result, Ms. [redacted] was required to seek an outside consultation. This became a laborious effort during which time, redacted did not receive an assessment. She testified however that,

"Earlier in the year our speech teacher, [redacted] who you'll speak with later, she had spoken with [redacted] and I, and I think her understanding was perhaps it wasn't necessary because he already has [redacted] on his iPad, and he already is able to navigate that program. So, there was a moment there. I don1t know how long the moment was, some weeks I suppose, where we thought we were not going to try to obtain that, and we don't have anybody in house in [redacted] who knows how to do an augmentative assistive [redacted] evaluation. So, once we realized that, yes, the district did want us to go ahead with trying to obtain that, we were trying to contract that with [redacted]; and, you know, l1m a first-year assistant principal, and so maybe I --this wouldn't be a surprise to somebody else, but it was surprising how incredibly long the process took between the two business offices to try to set up that contract for redacted. So, by when we closed March 1[Redacted]th he had not yet had that evaluation." Tr. at 2[Redacted].

Having so testified, Ms. [redacted] opined that [redacted] did have [redacted] on his [redacted] and was quite adept at navigating its screens. However, the child chose not to engage with it as he preferred to use the entertainment features the redacted offered, rather than the [redacted] aspects. As a result, she was uncertain if she agreed with the [redacted]'s assessment which indicated that the child did not have a [redacted]. Tr. at 29; Exh. I 09. She noted that [redacted] could utilize redacted forms of [redacted] such as "minor" signing, pointing and loud [redacted] when necessary. Tr. at [Redacted]0. [redacted] additionally has a visual schedule and a picture board. Moreover, on some occasions, the student did, in fact, utilize his [redacted]. Tr. at However, on cross-examination, Ms. [redacted] acknowledged that the only time [redacted] utilized his [redacted] consistently was during speech sessions. Exh. I 06. In sum, the witness acknowledged that an evaluation would provide insight into the reasons [redacted] did not utilize his [redacted] for the purpose of [redacted]. If, in fact, the student's rejection of the [redacted] was [redacted], structured interventions and training could have facilitated its efficacy for [redacted] Tr. at 4[Redacted]-44.

[redacted] additionally testified on behalf of the District. Ms. [redacted] is a special educator at the [redacted]. She has taught special education for approximately 15 years and is certified in New York State and Florida. Ms. [redacted] testified that she has worked in various classroom paradigms including integrated co-taught classrooms. During the 2019-2020 school year, was a student in her classroom. She noted that there were seven children in her classroom with six adults. The witness described [redacted]'s daily schedule, which included related services provided as a push-in or individual paradigm. Exh. 106. The witness described a large classroom which included physical therapy mats for games and/or quiet time. Other parts of the room were partitioned off to reduce classroom [redacted], if necessary. Dimmers are additionally used to control bright lighting. When necessary, noise-reducing headphones are available. Personnel ensure that constant routine and consistency are integrated programmatically into the school day.

Ms. [redacted] observed that [redacted] generally kept his [redacted]in his knapsack and became upset if he saw it on the shelf. 1t was unclear how often, if at all, Ms.. [redacted] continued to send the child's [redacted] home each day as the Parent indicated that her son would not use it. Tr. at 62. She did not know whether the Parents had ever been trained on the use of a [redacted] device. Beyond this, if [redacted] became upset that the [redacted] was going home, she would not force the issue, weighing the possibility of a major tantrum if she persisted in sending it home. Tr. at 68. Rather, the child communicated via pointing, using visuals such as a picture or icon on a schedule or walking towards an object. Nevertheless, Ms. [redacted] agreed that this was a limited form of [redacted] and that it constrained his ability to participate in school. Tr. at 65. Although Ms. [redacted] had not received formal training on the use of the [redacted], the [redacted] speech therapist had offered various modeling techniques to facilitate [redacted]'s use of his [redacted] device. Nevertheless, this had been unsuccessful. Tr. at 67. Indeed, on cross-examination, Ms. [redacted] testified that there were behaviorists at [redacted] who could develop a plan to desensitize [redacted] to his [redacted] and increase his usage. This had not occurred, nor did anyone suggest adding a goal to the child's IEP which would address negative behaviors related to [redacted]use. Tr. at 70-71, 75-76.

Ms. [redacted] testified regarding [redacted] 's progress at school. She noted that the child was now writing his first and last name legibly without visual models at 75% legibility. The witness reported that [redacted] was additionally working on answering yes/no for preferred items, responding accurately 60% of the time. Beyond this, the child is learning one to one correspondence and both identifying/writing numbers, a skill in which two verbal prompts are required. Ms. [redacted] reported that [redacted] is improving in this area and that he is learning to utilize manipulatives effectively. Tr. at 52; Exh. 114.Ms. [redacted] indicated that [redacted] is responsive to the check system she utilizes in her classroom. As a result, he has been able to transition between activities more easily and to remain on task for greater periods of time. Tr. at 56. Nevertheless, if the student is "not quite ready" classroom personnel will just wait until [redacted] chooses to engage. Tr. At 58.The witness noted that [redacted] is additionally being trained to utilize a visual schedule, a skill in which he is intermittently compliant. Although the student has picture cards, he does not avail himself of this independently. Tr. at 61.

Although Ms. [redacted] described the child as non-aggressive, she noted that his [redacted] could be [redacted] for the class. The child engages in self-soothing behaviors such as putting his hands over his ears, rocking, and lying down on a mat. On occasion, [redacted] will tantrum, engaging in pushing away behavior. Although he has on occasion eloped, this is generally not an issue and easily controlled by this I: I paraprofessional. Tr. at 60. Although [redacted]'s social interactions are limited, he will occasionally sit next to one of his peers if he is interested in what they are doing.

Finally, the witness indicated that on the day the Parents' private evaluator came to observe [redacted] as school, she had just begun the use of center rotations within the classroom. [redacted] was not acclimated to this new protocol and demonstrated mixed compliance. Tr. at 6[Redacted]-64. She concluded her testimony by stating that [redacted] could make meaningful progress toward his IEP goals with supports and services in general education. Tr. at 70.

Ms. [redacted] is a licensed occupational therapist employed by [redacted] at [redacted]. She has been employed in this capacity since 1997 although her position at [redacted] is new. She provides [redacted] with his therapy twice per week on an individual basis and once per week as part of a small group. She noted that the child's goals are all fine motor in nature and include handwriting and tying his shoes. The witness testified that, although the child would not engage with her initially, after several months he began to cooperate and make progress with his goals. Specifically, [redacted] is now able to write his first name legibly and can sometimes write his last name clearly as well. Much of her instruction involves the use of physical prompts and a visual schedule. [redacted] is presented with activity choices and the child will then opt for a task. Other [redacted] is essentially [redacted] and revolves around [redacted] physically approaching an activity in which he is interested. This is how instructional goals are selected for that day. Although the child would initially refuse to bring his [redacted] to occupational therapy sessions, he now does so but insists on zippering it into his backpack. As her primary duties concern occupational therapy, Ms. [redacted] testified that she does not force the child's use of his [redacted]. Tr. at 8[Redacted]-84. Nevertheless, she would like to integrate the use of [redacted]'s [redacted] into her sessions so that her therapy could be more responsive to the child's interests and needs. Tr. at 90. Although she is familiar with the manner in which the [redacted] operates and employs it with other students, the child's resistance to the device has been a significant barrier to its use. While this frequent topic at team meetings, she has chosen to focus on [redacted]'s fine motor needs. She stated, "! have not pushed the [redacted] with [redacted] because getting [redacted] to do anything with me has been my focus. Tr. at 92, 96,

Although integrating the use of [redacted]'s [redacted] was frequently addressed in team meetings, Ms. [redacted] did not recall any discussion of written [redacted] protocols to facilitate its service as a form of [redacted]. Tr. at 95. Likewise, she did not recall a discussion at the October [Redacted]0, 2019 CSE convene addressing the speech therapist's repm1. In fact, the speech therapist had discussed [redacted]'s recent interest in using his [redacted] at home. Unfortunately, the child quickly discovered the [redacted]'s password for internet use and, as a result, was no longer interested in the device as a means of [redacted]. Tr. at 97; Exh. I 08 at 2.

Finally, Ms. [redacted] described [redacted] as a very bright child with strong academic skills. Moreover, she was not surprised that he had figured out the internet password for his [redacted]. She indicated that [redacted] knows the alphabet and could order and identify its letters efficiently. However, she noted that [redacted] could be very self-directed and stubborn. Although computer use is a strong reinforcer, there are times when this is ineffective, and the student will simply refuse to engage in therapy. Tr. at 85-86.

[Redacted] is employed by [redacted] as a licensed social worker. She provides social work consultations with family or school personnel and additionally pushes into the classroom to review [redacted] and [redacted] Tr. At 105. While she does not interact with him individually, she observes his behaviors weekly as part of a [Redacted]0-minute consultation to evaluate [redacted] 's [redacted] status and modify his [redacted]if necessary. She described a sweet child who struggled with non-contextual [redacted], elopement, non­compliant behavior and [redacted].

She described the manner in which she developed the [redacted] for [redacted] Specifically, she acquired multi-disciplinary assessments, spoke with the Parent and shared her findings with and, [redacted] psychologists. After observing the child and developing a formula to track behaviors, a [redacted] addressing elopement, non-compliance and non-contextual [redacted] was developed. Tr. at I 07; Exh. I 09. The child's 1: I paraprofessional was responsible for tracking data. At baseline, [redacted] was on-task for approximately one hour per day.' Tr. at 109. Although the child's interfering behaviors, at first, appeared to function in the way of task avoidance, Ms. [redacted] later noted that much of his [redacted] behavior appeared seeking in nature.

The witness observed that in September 2018, "any demand being placed on him" was a trigger. In furtherance thereof, the child's initial behavior plan specifically attempted to address the child's elopement, [redacted] and non­compliance. Exh. 112. Ms. 1[redacted] indicated that [redacted]'s resistance to using his [redacted] was encompassed by the goal of reducing non-compliant behaviors. Tr. at 120. Various replacement behaviors and reactive strategies were consequently developed as a means of extinguishing [redacted]'s interfering and indicated that there were no incidents of either elopement, non-compliance or loud [redacted].2

Although the child's ongoing refusal to use his [redacted] device was present, the witness suggested that on days where compliance was 100%, this may have reflected the absence of any request to do so on the part of personnel. Tr. at 121. Neve1theless, she acknowledged that there was no way to identify how many times [redacted] had been asked to use his [redacted] but did not. Tr. at 125. Rather, the [redacted] focused upon behaviors that were considered most impactful within the classroom. Ultimately, [redacted] 's use of the [redacted] was subsumed under the broad category of non-compliant behavior. Tr. at 126. In fact, the October 2019 [redacted] does not address the need for increased and enhanced

[ redacted] a t all and there was no protocol to identify or track· [redacted]'s refusals to use his [redacted]. Exh. [Redacted]8.

In fact, on cross-examination, the witness acknowledged that the [redacted] only addressed non-compliance in general terms without any specific reference to [redacted] 's [redacted] devices. In sum, the witness testified that [redacted] had demonstrated significant progress in reducing the incidence of elopement and non-compliance. While his progress was inconsistent, over-all, the child was now participating more in classroom activities and rotating from station to station. Tr. at 117. Although Ms. [redacted] noted that she was not always in the classroom, her observations indicated that he was more consistently engaged in instruction. Tr. at 117. In sum, she described a sweet child who was very social, seeking out other students to observe their activities and playing board games with his peers. Tr. at 118.

On cross-examination, Ms. [redacted] noted that the child's failure to use a [redacted] device was problematic, adding that it was challenging to ascertain his needs at any point. Tr. at 122. Consequently, it was difficult for him to engage in social exchanges, access educational materials or express emotions. Although the child does possess some signs and can point to a picture array, if necessary, his inability to communicate in a more meaningful way has an impact upon many aspects of his school day. Tr. at 122-124.

[Redacted] additionally testified on behalf of the District. Ms. [redacted] is a speech-language pathologist employed by [redacted] a position she has held for [Redacted]8 years. In this capacity, she works with [redacted] daily, either in group or individual speech therapy. The witness testified that she initially worked with [redacted] to follow two-step commands, a goal she received from the District's IEP. As [redacted] became proficient with this, she began to shape that [Redacted] was extremely adept at navigating through several screens and had no problem scrolling between three or four displays. Tr. at 1[Redacted]8. After working through the child's resistance to bringing his [redacted] to therapy, Ms. [redacted] 's next goal for [redacted] was to tolerate the placement of his [redacted] on the worktable. When this was achieved, the therapist tried to engage [redacted] with his [redacted] by reinforcing him with a highly motivating puzzle. The witness indicated that eventually [redacted] did interact constructively with his [redacted],, an achievement which was extremely exciting for both her and the Parents. Neve1iheless, progress was intermittent and inconsistent.

Ms. [redacted] described [redacted] as a very bright and "clever" child who had a strong receptive vocabulary. Tr. at 1[Redacted]8, 140. She had no doubt that he was proficient in the use of his [redacted] as a [redacted] device, but simply chose not to utilize it. Tr. at 142. As a means of generalizing his skill, Ms. [redacted] enlisted the cooperation of [redacted]'s physical therapist who attempted to incorporate physical therapy language into the [redacted]. Tr. at 14[Redacted]. She had not, however, observed the child using the [redacted] in environments other than her own. Even within the scope of her own therapy, she noted that any insistence upon its use might precipitate a tantrum.

The witness indicated that her speech-language intervention occurred primarily with the child's paraprofessional. Although she wanted [redacted] to engage with his device several times a day within the classroom, the child resisted actively. As a result, she was uncertain whether [redacted] actually engaged with his device during the day. She testified,

"What I do know in hindsight is, for him to really use that [the [redacted] device), I think I would have had to block all students out for a week and just maintained my own presence and take that on for him to be willing to use it, and it might have been ugly, but I think it could have happened over time. He just do (sic) not want to use it in the classroom. If he doesn't want to use it one-to­one, he really doesn't want to use it in the classroom."

Beyond [redacted]'s [redacted] goals for his device, Ms. [redacted] observed that [redacted] had several other receptive goals, many of which he achieved quickly. She noted that the child had a large receptive vocabulary of common items and could discriminate within an array of five. Similarly, [redacted] could pair various household and personal items with their use. When reading a sho1i story, [redacted] was able to receptively answer brief questions by pointing. She reiterated that [redacted] was very smart and preferred activities which offered greater cognitive challenges. Tr. at 146. Neve1iheless, [redacted] continues to struggle with correct yes/no responses. Tr. at 15[Redacted]. In sum, Ms. [redacted] described a child with a "vast knowledge base," who was capable of applying that information. Along with that knowledge, Ms. [redacted] opined that [redacted] had an excellent memory and, when learning new skills, only had to have them modeled once or twice. Tr. at 147.

In group speech-language therapy, [redacted] is learning to stay on topic, "converse" reciprocally and listen to his peers. She noted that [redacted] additionally participates with verbal students in his class by selecting visuals on the smart-board in response to various questions. At the end of the session, [redacted] helps offer and distribute snacks, an activity which provides an opportunity to interact appropriately with his peers. Tr. at 150. 8

Ultimately, Ms. [redacted] testified,

"... I think we need to move to [redacted] as a total communicator. We've got to honor that he wants to use a variety of ways but not leave out the [redacted] because the [redacted] offers him volumes of information that om' little stuff just doesn't." Tr. at 15[Redacted]-154. Ultimately, she opined that the [redacted] was "the way to go." Tr. at 155.

The witness observed that the [redacted]'s lack of generalization to the classroom had been a source of frustration for her all year. Although [redacted] 's paraprofessional had observed Ms. [redacted] 's modeling techniques, the [redacted] device had not been utilized in this setting. Nevertheless, while Ms. [redacted] believed she might have pushed into the classroom setting for the express purpose of facilitating [redacted]'s use of his [redacted], she acknowledged that this would have been [redacted] to the other children. Tr. at 158.No written protocol was furnished to classroom personnel as to fostering [redacted]'s [redacted] use, nor did the behavior plan specifically address this issue. While Ms. [redacted] requested that the device be utilized five times a day, this did not happen. Likewise, although the continuity afforded by sending the [redacted] home daily would have been advantageous, Ms. [redacted] was unaware that this occurred infrequently. Finally, the Parents had not received trainings on the [redacted] as Ms. [redacted] testified, "I don't have that time in my schedule. We don't have parent trainings." Tr. at 159-160. As a result, the Parents experienced the same resistance as classroom personnel to the [redacted]'s use. Although theoretically, [redacted] had significant skill in utilizing the [redacted] app, the Parents' inability to work with [redacted] limited their ability to advance and support their son's ability to communicate. Tr. at 161.

In sum, Ms. [redacted] opined that [redacted] would benefit from participating in a "carefully crafted" [redacted] environment which minimized [redacted]. This would include the absence of loud sounds, many people moving around and even loud speech.

[Redacted] additionally testified on behalf of the District. She is an independent contractor who performs [redacted] and [redacted] as a school psychologist. On request, she additionally serves on the CSE. In the latter part of 2017 and January 2018, Ms. [redacted] conducted a re-evaluation of [redacted] In preparation for her evaluation, the witness reviewed [redacted] 's file, interviewed his teacher, observed the child within the classroom, took adaptive measures and assessed [redacted] on various [redacted] ratings. Exh. 17, passim. Both teacher and Parent questionnaires were additionally completed.

As a result of these evaluations and her own classroom observation, the witness concluded that [redacted] would benefit from the assignment of a one-to-one paraprofessional. Although the student was in a 12: 1:3 classroom, he required significant verbal and physical prompts to function within class. [Redacted] additionally required intense supervision in the halls and playground. In fact, her report indicates that [redacted] did not wish to engage in any academic activities and would elope or tantrum when demands were placed upon him. Tr. at 181. Beyond this, the child engaged in repeated and near constant self-stimulatory behaviors and was frequently given breaks outside the classroom. Similarly, Ms. [Redacted] observed that [redacted] did not wish to participate with his peers or cooperate with class routine. The child's independent living skills were extremely low and [Redacted] required substantial support at home and in school. Ms. redacted opined that part of this problem was rooted in the fact that school personnel wanted [Redacted] to use his redacted as an instructional or redacted device while redacted wished to utilize it as a toy. Tr. at 18[Redacted]-184.

As a result of her assessment, the psychologist made several recommendations, including the placement of a 1: I paraprofessional and the use of a consistent fom1 of redacted. The witness opined that a consistent form of redacted, across all settings including home, would enlarge redacted' ability to engage appropriately with others. While she did, in fact, recommend the 1[Redacted], she noted [Redacted] R needs would need to be assessed by an assistive technology or speech professional. Tr. at 209-211. A third recommendation involved a suggestion that redacted be seen by a neurologist as the school psychologist was concerned that the child's substantial slimming might be anxiety-based.

Approximately two months later, in March 12, 2018, the witness participated in a CSE meeting for redacted Although redacted was demonstrating significant academic skills such as matching, ordering and identifying numbers and letters; writing his name and recognizing colors, the child's interfering behaviors remained a significant concern. Redacted continued to resist the use of his device and engaged in constant redacted and even dangerous work refusals. At this time, school personnel continued to describe considerable difficulty utilizing the redacted as a redacted device and clinician Redacted recommended a redacted consultation with a redacted expert, Exh. 26.

In October 2018 Ms. Redacted again evaluated redacted for the purpose of assessing his self-stimulatory behavior and maximizing the efficacy of his paraprofessional who had now been assigned. At this time, the witness noted that the child's non­compliant behavior was severe, taking up the majority of his school day. Exh. [Redacted]8. As a result of this assessment, the clinician determined that redacted’ s behavior was largely task avoidant for non-preferred activities. When asked to participate in center-based activities, the student would elope, throw himself on the floor or engage in self-stimulatory behaviors. Eventually a Rifton chair was employed so that redacted was restrained in a chair. However, when restraints were lifted, the child returned to his classroom behaviors. Although redacted was more responsive within a l:l setting in the context of a pull-out related service, his appropriate participation in class was virtually nil. Tr. at 191-192; Exh. [Redacted]8. ln December 2018, data collection began for an redacted. Tr. at 196; Exh. 4[Redacted]. Although certain specific behaviors were targeted for inclusion in a redacted, the witness indicated that she was unable to prepare this document as the redacted School District had asked the Parents to remove redacted from their school. Tr. at 204. In fact, the witness opined that she did not believe the 12: I:[Redacted] was an appropriate placement for redacted even with the addition of a l: I paraprofessional. She based this upon the fact that the environment was overly stimulating10 and required many transitions during the day. Tr. at 208. Nevertheless, she acknowledged that although she had recommended the use of a consistent form of redacted for redacted, nearly one year earlier, the child was still not utilizing his device. Tr. at 215. Although other redacted, task-avoidant behaviors were being assessed in the classroom, use of the child's redacted device was not considered significant. Tr. at 216.

On May 21, 2019, the CSE again convened. Exh. 91. Although the child's speech/language pathologist indicated that redacted was progressing with the use his redacted, Ms. Redacted did not know whether her recommendation for Parent training had been implemented. Finally, the witness acknowledged that an redacted prepared in October 2019 again referenced the absence of a redacted for redacted, an issue which interfered with the child's ability to relate to others and access an education. Tr. at218; Exh. 109.

Redacted is presently the District's CSE chairperson, a position she has held since 2017. Previous to this, Ms. Redacted served as a District special educator for 19 years. She is familiar with redacted, having reviewed his chart and participated in his CSE convenes. Although redacted was initially assigned to an 8: I self-contained class, it quickly became apparent that the child required more educational support. Thereafter, redacted attended a 12: I: [Redacted] class in a neighboring District in redacted.

On March 12, 2018 Ms. Redacted attended her first CSE convene for redacted Exhs. 24, 26. At this time, the discussion centered upon redacted’ s interfering behaviors and task-avoidance. Beyond this, the child was now redacted to using his r e d a c t e d a s he had now learned to associate it with the positive reinforcement offered by videos. Nevertheless,, the child's teacher in redacted reported that redacted had demonstrated some academic progress. As a result, the child was given more individualized learning opportunities with related service providers in addition to underscoring the need for a full­time paraprofessional. Tr. at 229; Exh. 24. As redacted was additionally considered a flight risk, a two-way radio[Redacted] was mandated for all personnel working with the child.

During the 2018-2019 school year, redacted continued his placement in the 12:1:[Redacted] 15 class. Nevertheless, the child was struggling and engaging minimally with academic materials. By November 2018, the child's goals had been adjusted downwards as he was not making the progress which had been anticipated. Although the redacted had been prepared, no redacted was forthcoming at this point. By February 5, 2019, a reconvene was requested for the purpose of discussing redacted 's redacted and programming. Specifically, Ms. Redacted testified that she was contacted by the Redacted CSE Chairperson,

At this time, expressed concern about the child's redacted and redacted behaviors. Although the redacted, dated October through December 2018 was discussed, administrator opined that the child's program at 15 was no longer appropriate. Exh. [Redacted]8. Simply stated, redacted’ s behaviors were out of control and interfering with others in his class.

Redacted testified that she had less than a month to construct a home school program for the child while she continued applying to other educational programs.4 Exh. 57. Eventually, a new program at redacted was identified and the child commenced classes in July 2019.

Between March and July 2019, [Redacted] was home-schooled. Providers from the District who were familiar with the child participated in redacted’ s program and convened on April 8, 2019 to discuss the status of their interventions. Exh.66. Although some initial progress was noted, personnel indicated that within the home-school paradigm, redacted was receiving services on a I: I basis. Tr. at 254-255, 259; Exh. 79.

On May 21, 2019 the child's annual review was held. Exh. 87. Again, the child's tutors reported progress within the individualized paradigm. Specifically, the child's speech and language therapist again recommended an outside consultation with the Parents to facilitate their reinforcement of the 1[Redacted] at home. Tr. at [Redacted]06; Exh. 91 at I. At this time, an additional weekly support and training session in speech and language was additionally mandated for the Parent. Ms. Redacted further indicated that she had begun the process of obtaining an updated redacted and software for use as a redacted device. Tr. at 26[Redacted]-264; Exh. 87 at I 0. She indicated that a class profile from this time indicates that redacted was appropriately grouped by classification and functional needs. Tr. at 274; Exh. 11[Redacted].

On August 9, 2019 the CSE again convened with redacted personnel. At this point, Redacted had been in their program for several months and the team wished to ascertain redacted 's progress. According to Ms. Redacted, redacted personnel indicated that redacted was progressing well in terms of his transition to the program and his ability to self-regulate. She noted that many of his academic goals were actually redacted in nature.as progress could not be achieved absent fundamental levels of cooperation. Tr. at 268; Exh. 116 at 2. As a result of this meeting, Ms. Redacted expected an assistive technology assessment to address redacted’ s redacted needs as well as an augmentative language evaluation. Beyond this, the child's redacted would be updated. Tr. at 269. Ms. Redacted indicated that the redacted had not been updated while redacted was being home-schooled as the redacted was not appropriate for home instruction. Tr. at 271. Finally,.Ms. Redacted indicated that redacted was progressing well and not demonstrating the interfering behaviors previously noted at redacted.

On October [Redacted]0, 2019 Ms. Redacted again participated in a CSE convene, the purpose of which was to assess the efficacy of the new redacted. Again, personnel opined that redacted had adapted well and was advancing towards his goals. In furtherance thereof, Ms. Redacted indicated that the child was now on task for fifty percent of the day. Tr. at 27[Redacted], Exh. I 06.

Nevertheless, Ms. Redacted testified a provision for Parent training had not been honored at redacted nor was redacted’ s redacted being sent home regularly. Tr. at [Redacted]10-[Redacted]11.

On cross-examination, Ms. Redacted acknowledged that despite the teacher's 2015 request for an assistive technology evaluation to facilitate redacted’ s ability to communicate across multiple settings, this had never been performed. Tr. at 28[Redacted]. In fact, the child's teacher at this time had written, "An assistive technology evaluation would allow for [Redacted] to gain further devices to help him communicate at school and at home. Having a fluid system for school and for home is crucial to him gaining as many redacted as quickly as possible." Tr. at 28[Redacted].

Similarly, the witness agreed that parent training had not been added to redacted 's TEP mandate until May 2019 nor had an outside redacted expert ever been retained despite Ms. Redacted’ s recommendation in March 2018. Tr. at 286; Exhs. 26, 27. In fact, despite Ms. Redacted’ s recommendation and management concerns, an redacted was not initiated until October 2018. Tr. at 288.

Ms. Redacted agreed that the CSE had not considered alternate placements in the public school for several years as redacted’ s experience at redacted had been extremely negative. As redacted could not cope with redacted’ s large public-school environment along with its highly redacted classroom and frequent transitions, the CSE did not consider hiring a consultant to develop a redacted program in District. Tr. at 295-299. Moreover, when queried about redacted participating within a general education paradigm, the witness opined that the level of instructional differentiation required would be so great for redacted that it would be inappropriate to offer this within a general education curriculum. The witness noted that her District does not have the infrastructure necessary to accommodate redacted’ s needs. This includes their lack of a school social worker and school psychologist.' There is additionally no integrated co-taught class. Ultimately, Ms. Redacted opined that the District's fourth-grade class of fifteen students would be more stimulating for redacted than a 6: l:4 classroom. She testified,

"The activities in the classroom, they're active, they're moving about, they're talking, discussing, it's constant in motion. I have There's no -I mean-we really get on our teachers to have kids -say, Sit at your desk. Be quiet. Don't interact. Don't move. Oh, my goodness, like that's considered bad teaching. So our classrooms are alive and moving and lights are going on and off and we transfer to whiteboard presentation to, Okay. We're going to do whiteboard presentation to Okay. 1Ye 're going to do small groups. It's just a barrage of A coming.... " Tr. at [Redacted]17. She then added "So, if we were able to create a bubble that didn't include the A piece for the academics, it would be one-on one with a special education teacher." Tr. at [Redacted]20.

5 If necessary, these individuals are available on a per diem basis.

1[Redacted]

Beyond this, Ms. Redacted testified that based on her observation of a 5: I:[Redacted] classroom, many of the accommodations were unsuitable for a redacted class. This included dimmed classroom lighting, placement of physical barriers to offer quiet spaces for students and few decorative wall presentations of student work etc. In addition, she noted that most of the redacted classroom materials were not visible or immediately accessible. Tr. at

[Redacted]22. Essentially, the witness opined that the extent to which redacted required academic modifications of both content and materials would establish the need for a full-time special education teacher, present at any and all times. Finally, during the few opportunities redacted’ s physical therapist attempted to redact the child during recess, redacted was redacted and remained a danger to himself due to bolting and elopement behaviors. He did, however, engage in screen time with other redacted students.6 Exh. 91 at 1. In this manner, redacted would essentially be participating in a class within a class. Tr. at [Redacted]20.

Referencing the need for the least restrictive environment (hereinafter "LRE") and access to redacted peers, Ms. Redacted noted that LRE was not the only factor in determining the appropriateness of a placement. She testified that other considerations -academic, social/emotional and physical -are only part of the assessment in terms of determining FAPE. Environmental considerations, safety, available programming and services must additionally be weighed in the FAPE equation. Tr. at [Redacted]14-[Redacted]16. Beyond this, she believed that the constant support of a one-to-one paraprofessional would be socially isolating for redacted, interfering with peer relationships and creating an even more restrictive setting for the child. Tr. at [Redacted]00-[Redacted]05.

The Parents' Case and Summary of Witness Testimony

Redacted has a bachelor's degree in wellness management. She is employed by redacted as a licensed teaching assistant, a position she has held for 8 years. She is familiar with redacted as he was a student in her class from 2016 to March 2019. She described the child as redacted. Although he had a redacted device, he did not typically use it. Although it was a dedicated device used exclusively for redacted, she had not been furnished with any written protocol as to its use. Tr. at [Redacted][Redacted]6. While there had been no formal training on the application, Ms. Redacted testified that the speech teacher and other teachers who had previously utilized the device offered assistance. As the redacted was not used correctly, the witness opined that redacted had little opportunity to capitalize on it. Tr. at [Redacted][Redacted]6-[Redacted][Redacted]7. Finally, she noted that while redacted had limited opportunities to redacted at redacted, he did redacted running around with them on the playground watching their interactions. Tr. at [Redacted][Redacted]8. Educationally, Ms. Redacted described a child with clear academic skills. Redacted was able to do simple addition, count, array numbers sequentially and demonstrate one to one correspondence. Similarly, redacted could order the entire alphabet and write his name legibly without visual models. When given one step directions, the child was able to comply. In sum, the witness opined that redacted would benefit from interacting with typically developing students due to the peer modeling opportunities he would have. Tr. at [Redacted]42. Although she believed redacted would require an adjustment period, she believed he would quickly adapt to the routine. During the school years in which she worked with redacted, she was unaware of the existence of either a behavior plan or a written protocol for redacted use. Tr. at [Redacted]57.

On cross-examination, the witness acknowledged the fact that redacted had had a very difficult 2018-2019 school year. She indicated that the child did not get along with his aide and exhibited many redacted behaviors within the classroom. However, she· acknowledged that even during the 2017-2018 school year, a request for a redacted had been made as personnel were finding it difficult to engage redacted at the work desk.

On cross-examination, Ms. Redacted testified she was unaware that redacted 's redacted indicated that the child was on task, on average, [Redacted][Redacted] minutes a day. Moreover, she indicated that she did not believe redacted engaged in elopement or bolting behaviors, notwithstanding the child's running behavior on the playground. Rather, she described this behavior as "playing." Tr. at [Redacted]45-[Redacted]46. She was not aware of the fact that redacted had an IEP mandate that all staff working with him be equipped with a two-way radio. Finally, she agreed that redacted was a child who easily became over-stimulated. This was particularly problematic for redacted at redacted as there were aggressive, loud and distracting students in his classroom.7 When [Redacted] became dysregulated, personnel would need to remove redacted to a quiet area in the hallway.

During the 2017-2018 school year, Ms. redacted testified that an redacted was developed and a dedicated paraprofessional assigned to redacted This was a result of his redacted behaviors in class. Tr. at [Redacted]60. Beyond this, redacted was removed, along with other students' devices, as the video component was deflecting from the child's use of it as a redacted system. Finally, she noted that redacted did not push into redacted classes during this time although he might have participated in physical education a few times during the year. Redacted is the mother of redacted She provided a brief educational history of her son, noting that he attended an integrated preschool. In kindergarten, her son articulated in the District's K-12 school and was assigned to a self-contained class. By first grade, redacted began classes at redacted where he was assigned to a 12: I: I:[Redacted] classroom. The witness indicated that both first grade and second grade were relatively successful. Nevertheless, redacted 's third grade experience was "tough" and redacted began to resist school. Tr. at [Redacted]72. · At this time, her son had been assigned to a new paraprofessional and she believed her son was no longer comfortable in the classroom. Tr. at [Redacted]76. As redacted’ s behavior became more troublesome, he was eventually asked to leave redacted.

7 In the event of full 12:1: 1[Redacted] enrollment, there would be I 7 individuals in the class. Tr. at [Redacted]52.

After a period of home instruction, redacted then enrolled at redacted, She noted that redacted communicates only by pointing oi· grabbing. Although he can use his redacted device, he refused to do so as he has now discovered the password for its internet and video connections. Tr. at [Redacted]78. She noted that the redacted never came home from redacted and rarely came home once redacted. The Parent indicated that she would like to be trained on the redacted as it would facilitate redacted with her son and minimize his frustration. Tr. at [Redacted]80. While she has never received training, she believed the School would contact her as it had been incorporated into redacted’ s IEP. Tr. at [Redacted]96.

The witness described redacted’ s sensitivities. She noted that loud noises are generally not problematic for him. He has traveled to large theme parks, fairs and derbies without difficulty. Her house is not dimly lit. She opined that redacted’ s behaviors were precipitated by demands placed upon his him. She described a child who wants to interact socially with typically developing children, although his efforts are frequently rebuffed. He is successful with children who know him and have grown up with him. Tr. at [Redacted]82. [Redacted] attempts to model his siblings' behavior and redacted interacting with family and friends. She testified,

“it’s his community. It's his people. This is who he's going to grow up in his life. If he's not involved in the community around him, how is everybody going to know him? How are they going to understand what redacted’ s about, and how are they going to redacted being around him?... Everybody loves him when they meet him, so how are they going to know who he is if he's not involved in ai1ything in the community?" Tr.. at [Redacted]8[Redacted].”

On cross-examination, redacted acknowledged that redacted does not participate in any activities outside of school, including boy scouts or organized sports. She further indicated that her choice to transport redacted to school, daily, both ways, was an individual choice she had made. She has transported redacted for several years, independent of the distances involved. She was aware, however, that bus transportation was available through the District.

Referencing the redacted testified that she had not advised Ms. redacted personnel that it was not being sent home. She did indicate, however, that redacted did not wish to use it at home as a device. Tr. at [Redacted]86. The Parent acknowledged that she has had issues with redacted running away, although thinks it is just a game. Similarly, she observed that his behaviors increase when he is anxious. However, as early as December 2018, she was aware that redacted was struggling in school and, at the request of school personnel, redacted was now being medicated. Tr. at

[Redacted]91. She further noted that in May 2019, her son had begun disrobing in school, but this issue had now resolved.

Redacted, Ph.D. testified last on behalf of the Parents. Dr. reacted is an associate professor at University in the Department of Teaching and Leadership. She has published extensively in the field of special education and has focused on inclusion for students with complex disabilities and redacted challenges. Tr. at 40 I; Exh. B. She is additionally a certified special educator, birth through twelfth grade. She testified, however, that she has never seen the District or its facilities, nor has she ever met redacted other than at her observation of him. Tr. at 4[Redacted]4.

In February 2019, Dr. Redacted was retained by the Parents to perform a private assessment and observation of redacted In conducting her evaluation, Dr. Redacted reviewed all of the exhibits moved into evidence on behalf of the District. This includes a range of psychoeducational evaluations, IEPs, redacted. She, herself, has never tested the child, nor has she ever recommended a redacted program. Tr. at 441.8

On February 11, 2019 the witness observed redacted at his placement for the entire day. The observation occurred across several settings including his 6: I: I self-contained classroom and various individual related services. Dr. Redacted noted that most of redacted’ s time was spent in the rear of the classroom working with his paraprofessional. Personnel indicated that this situation was necessitated by redacted’ s noises and behavior which then created difficulties for other students. Environmentally, the placement of a corner divider to minimize redacted and distractions for redacted created, in her opinion, inappropriate isolation for redacted from his peers. When observed working at a small table with his peers, the child was unable to participate in a social/emotional game which required R skills. Tr. at 408-409. Dr. Redacted inquired as to whether this was a representative day for the student and was assured that it was.

Although the witness described redacted 's instruction as non-academic and "purposeless," she was unaware that on the day of her visit, the children were transitioning to a different instructional schema, to wit: center-based programming. The children were, therefore, unfamiliar with the new arrangements and its demands. Similarly, she was unaware of data indicating that, as the year progressed, redacted’s on-task behavior had increased to 50% of his day. Nevertheless, Dr. redacted testified that the child's related service instruction, provided individually, was appropriate and meaningful. Having so testified, she believed these services were underutilized by virtue of the fact that they did not appear integrated within the greater classroom curriculum. In essence, Dr. redacted 's objections were more broadly focused upon redacted’ s special education program, specifically his goals and the inappropriate use of reinforcers unrelated to academic demands. Tr. at 445-452. Specifically, she testified that, redacted’ s instruction appeared unrelated to more substantive academic curricula or long-term outcomes. Rather, Dr. redacted testified that "his teaching assistant was literally just grabbing things off shelves to try to keep him quote/unquote, busy awhile until the next reinforcer. There was not any sort of plan for what that was leading towards." Tr. at 456. Finally, Dr. Redacted reported that in the course of the child's day, she observed no instruction in reading or math. Tr. at 45[Redacted]. The witness described a child who could follow through on requests, respond well to technology and transition from reinforcer back to task completion. redacted is a highly verbal learner with clear academic abilities

Specifically, she has never testified legally in support of a redacted program. spelling skills. Tr. at 410. Nevertheless, [Redacted] testified that she observed, "little that I would have considered an academic task Most of the activities he was engaging in seemed quite purposeless, not particularly goal directed or not connected to a sort of larger curricular goal." As a result, she opined that [Redacted] was not benefitting from the placement. She based this opinion upon the fact that [Redacted] was very isolated within the classroom and was not engaging in academic tasks which were goal-driven and meaningful. Tr. at 410-412. When one of [Redacted]'s peers attempted to engage [Redacted], the child was unable to respond due to the lack of a reliable system.

On March 12, 2019, the witness indicated that she presented her report to District personnel, but there were few questions and little interest in accepting her offer of assistance. Reviewing the child's IEP goals and progress, [Redacted] indicated that all of them could be addressed within a general education paradigm. Exhs. 102, 114. For example, she noted a reading goal calling for yes/no discrimination could easily be addressed within natural opportunities for choice making in a general education setting. Tr. at l 16. Similarly, handwriting was an activity that could be addressed each time the child submitted his work, either in class or during related services.

With regard to establishing one-to-one correspondence in math, [Redacted] testified that this could easily be embedded into a general education math or science class. [Redacted] would then be required to demonstrate his command of the material by utilizing manipulatives. Although clearly, one-to-one correspondence is typically not a fourth-grade skill, [Redacted] testified that this basic skill could be connected to many fourth-grade learning standards and, through accommodations, be linked to certain objectives in the context of the larger curriculum. Tr. at 417-418. In furtherance thereof, she testified,

"Some ways that I've worked with teachers to do this is through strategies such as same activity/different materials, where he might be working on the same skill but with small numbers or partial participation where he might do part of the larger academic task that the rest of the class is doing, but he might not do the entire task. So, for example, if the entire class was doing two­ digit-by-two-digit multiplication, he might be working on lining up the numbers for that, utilizing a calculator, checking that, being able to count out counters, So there's lots of ways to take the general education curriculum, his particular need, and figure out where the really logical overlaps are in a way that isn't particularly onerous to the special education person/teacher providing support." Tr. at 418.

The witness indicated that there was nothing on [Redacted]'s IEP that could not be addressed within the general education classrooms through thoughtful planning. This included the use of IEP matrixes in which overlap between general education and individual goals is utilized as a springboard for instruction. While she believed [Redacted] might need to rely on technology and avail himself of more frequent pre-teaching, she did not believe [Redacted] would require a parallel environment within the general education environment, establishing essentially a class within a class. Tr. at 420.

Nevertheless, [Redacted] affirmed that [Redacted] would require the support of a special education teacher, either as a direct or integrated service. However, the witness opined that [Redacted] did not require a full-time special education instructor. Rather, [Redacted]'s instructional support could be provided through a paraprofessional. The child would additionally require related services directed at supporting the child's access to the V curriculum. This would require co-planning and collaboration between all parties.

Finally, the student would require redacted supports along with "stay-put" supports.' Tr. at 421. She opined that thoughtful attention to seating, room layout, decreasing output with tennis balls on chair bottoms, wall decor and grouping arrangements would facilitate [Redacted]'s integration into the general education class and easily address the needs created by the child's profile. As for [Redacted] disrupting the class, [Redacted] indicated that when [Redacted] was actively engaged in meaningful academic tasks, he posed "far less of a distraction, and therefore, with the correct supports," she did not believe [Redacted] would pose a disturbance to the rest of the class. Tr. at 424. Ultimately, the witness opined that a classroom would be less stimulating to [Redacted] than a small class comprised on children with special needs, behaviors and communicative differences. Tr. at 42[Redacted]. Moreover, she believed [Redacted] would benefit from the opportunity to socialize with peers in terms of enriching his social network, modeling appropriate behavior and developing the "soft social skills" associated with typically developing individuals. Tr. at 427.

The witness testified that [Redacted]'s challenging behaviors were frequently related to his inability communicate effectively. Moreover, she did not believe his behaviors were so significant that they required the support of a self-contained class. Consequently, with competent use of an augmented speech device, [Redacted] believed many of [Redacted]'s issues would decrease. To this end, the witness opined that [Redacted] was an ideal candidate for support as he enjoys technology and has no other meaningful form at this time. Tr. at 427. Although she was aware that the child did, she noted that the device, absent an integrated and meaningful approach with consistent training and a specific protocol, is ineffective. Thus, she opined that the absence of an assistive technology evaluation and a protocol for its consistent use was inappropriate. Although she understood [Redacted]'s resistance to using his device, the witness testified that the need to communicate is critical. As such, there were strategies which could re-introduce the device’s use as a device in a comfortable and positive manner.

[Redacted] indicated that all these special education modifications could be developed and have been developed within the classrooms with even more impaired children than [Redacted], while not to their typically developing peers. However, because District staff have limited experience with this situation, she understood that integrating a disabled child to a class could seem over-whelming. In sum, [Redacted] testified that the placement was inconsistent with [Redacted]'s needs and that education with appropriate supports and services should be the first option considered. Tr. at 461.

The School District's Position The School District maintains that the District's placements afforded [Redacted] a FAPE and that the IEPs of March 12, 2018 and August 9, 2019 are valid and consistent with its mandate pursuant to both Educ. Law §4402(2)(a) and 8N.Y.C.R.R. §200.6 §(a)(1). Exhs. 24, 102. Specifically, the District asserts that the student was duly furnished with FAPE during the 2018-2019 and 2019-2020 school years. Inherent within this position, the School District asserts that the IDEA simply requires the School District to provide a free and appropriate public education (hereinafter referred to as a "FAPE") and is not compelled to maximize or optimize the child's educational benefits. Thus, compliance with its IDEA mandate is predicated upon the development of an educational program, which accurately reflects the results of evaluations designed to identify the child's needs, and develops strategies and interventions directed at remediating these educational deficits. Its duty is fulfilled by the implementation of a plan "reasonably calculated to confer an educational benefit upon the child" beyond "mere trivial advancement" (Application of the XXX Central School District, Appeal No. 08-005, citing Cerra v. Pauling Cent. Sch. Dist, 427 F.[Redacted]d 186, 192 [2d Cir.2005]) and in "light of that child's circumstances." Endrew F. v. Douglas Cty Sch. Dist. Re- I, 1[Redacted]7 S. Ct. 988

(2017).

As such, the District maintains that [Redacted] did not require an assistive technology assessment as the child had alternative forms of communication. Moreover, it maintains that the placement comports with its obligation to furnish [Redacted] with a placement in the least restrictive environment.

The Parents' Position The Parents assert that the School District stands in abrogation of its duty to provide [Redacted] with a free and appropriate public education for the 2018-2019 and 2019-2020 school years in violation of the IDEA See 20 U.S.C. § 1412 (a)(1)(1997); 20 U.S.C. § 1401 ( 11)(1997). In particular and with respect to the 2019-2020 school years, the Parents assert that the August 9, 2019 IEP failed to appropriately address [Redacted]'s R needs as well as his right to placement within the least restrictive environment. Exh. 102. As such, counsel maintains that the IEPs generated during these years cumulatively reflect a number of substantive and procedural errors which, in aggregate and alone, compel nullification of the document. Exhs. 102.

Discussion

It is clear that the legislative intent of 20 US Code § 1412 of the Individuals with Disabilities Education Act is to provide a free and appropriate public education to all children with disabilities so that these individuals may ultimately lead productive, independent lives as adults, to the maximum extent possible (20 U.S.C.Sx.1400 [d][l][A]; see Ms. W, v. Tirozzi, 8[Redacted]2 F.2d 748,750 [2nd Cir. 1987]). A FAPE consists of specialized education and related services embodied in an IEP. See [Redacted]4 C.F.R. [Redacted]00.1[Redacted]. An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals and short-term instructional objectives related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability. Appeal No. 01-105; Application of a Child Suspected of Having a Disability, Appeal No. 9[Redacted]-9). The IEP is the "modus operandi" of the IDEA (Burlington Sch. Comm. v. Dep't of Educ., 471 U.S. [Redacted]59, [Redacted]68 [1985]). Under both state and federal law, an IEP is specifically defined as a "written statement" that addresses the educational needs of a child with a disability (20 U.S.C. 1401(11); [Redacted]4 C.F.R. [Redacted]00.[Redacted]40[a]; 8 N.Y.C.R.R. 200.l[y]). The IDEA and its corresponding regulations mandate that at the beginning of each school year, a school district must have an IEP in place for each child with a disability that resides within its jurisdiction. 20 U.S.C. 1414(d)(2)(A); [Redacted]4 C.F.R. [Redacted]00.[Redacted]42[a].

In furtherance thereof, a board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed through the IDEA's procedures is reasonably calculated to enable the child to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206-207 [1982]). The recommended program must also be provided in the least restrictive environment ([Redacted]4 C.F.R. § [Redacted]00.550[b]; 8 N.Y.C.R.R. 200.6[a][I]).

In determining the "reasonably calculated" standard, the IDEA does not require the best placement for a student, but rather one at which the student may make educational progress. Most recently, the Courts have reiterated the standards upon which the "reasonably calculated" standard of FAPE must be determined. "The requirement that each child be afforded a FAPE does not guarantee that the district provide everything that might be thought desirable by loving parents" ( B.B. and A.P. o/b/o D.P. vs. the NYC Dept. of Ed. l l-CV-2141 (WFK) (MOO) (Jan. 6, 2012), citing, Tucker v. Bay Shore Union Free Sch. Dist., 87[Redacted] F.2d at 567; D.B. ex rel. K.B. v. New York City Dep't of Educ., No. 10-cv-618[Redacted], 2011 WL 49164[Redacted]5 [S.D.N.Y. Oct. 12,201 l][Sweet, J], quoting Walczak, 142 F.[Redacted]d at 1[Redacted]2. Nor must the IEP furnish "every special service necessary to maximize each handicapped child's potential." Rowley, supra at I 99.

Rather, the IEP must provide a "basic floor of oppo11unity consisting of services that are individually designed to provide educational benefit to a child with a disability" (Grim v. Rhinebeck Cent. Sch. Dist., [Redacted]46 F.[Redacted]d [Redacted]77,[Redacted]79 (2d Cir. 200[Redacted]); see also Carlisle Area Sch. v. Scott P., 62 F.[Redacted]d 520, 5[Redacted][Redacted]-[Redacted]4). Indeed, a school district "fulfills its substantive obligations under the IDEA if it provides an IEP that is likely to produce progress, not regression, and if the IEP affords the student with an opportunity greater than mere trivial advancement" (A.H. ex rel. JH v. New York City Dep't of Educ., [Redacted]94 Fed. Appx. 718,721 [2d Cir. 2010]).

Courts have held, furthermore, that the inquiry into whether a particular IEP is "reasonably calculated" to confer a meaningful educational benefit on a particular student must be made prospectively. See D.F. ex rel. N.F. v. Ramapo Cent. Sch. Dist., 4[Redacted]0 F.[Redacted]d 595, 598-99 (2d Cir. 2005) (declining to rule whether it is error to consider retrospective evidence, but noting that the First, Third, and Ninth Circuits, as well as district courts within the Second Circuit, had so held); J.G. ex rel. N.G. v. Kiryas Joel Union Free Sch. Dist., 777 F. Supp. 2d 606, 6[Redacted]6 n.26 (S.D.N.Y. 2011) (discussing lack of Second Circuit precedent requiring only retros preview, but ultimately conducting review limited· to information known at time IEP was crafted to reach "the most equitable result"); J.R. ex rel. S.R. v. Bd. of Educ. of City of Rye Sch. Dist., [Redacted]45 F. Supp. 2d [Redacted]86,[Redacted]95 (S.D.N.Y. 2004) (courts must "consider the propriety of the IEP with respect to the likelihood that it would benefit [the child] at the time it was devised"). Additionally, the IDEA provides that a school district must include and involve the parents of the disabled child in the development of that child's "educational placement." 20 U.S.C. § l414(e). Parents, however, may only have input in the process; they do not wield "veto" power over a CSE's school choice. See T.Y. ex rel. T.Y. v. N.Y.C. Dep't of Educ., 584 F.[Redacted]d 412, 420 [2d Cir. 2009]).

Finally, while both the Supreme Court and Congress place great importance on the procedural provisions of the IDEA (Rowley, 458 U.S. at 205 ["the importance Congress attached to these procedural safeguards cannot be gainsaid"]), nevertheless, adequate compliance with the procedures prescribed [by the IDEA] would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP" (Rowley, 458 U.S. at 206; [Redacted] v. Bd. of Educ. of the City of Yonkers, 2[Redacted]1 F.[Redacted]d at 102). Still, the initial procedural inquiry is no mere formality (Walczak v. Florida Union Free Sch. Dist., 142 F.[Redacted]d 119, 129 [2d Cir. 1998]). These detailed procedural provisions "lie at the heart" of the statute (Evans v. Bd. of Educ. of the Rhinebeck Cent. Sch. Dist., 9[Redacted]0 F. Supp. 8[Redacted], 9[Redacted] [S.D.N.Y. 1996]). They are not mere procedural hoops through which Congress intended state and local educational agencies to jump, rather the procedures are themselves a safeguard against arbitrary or erroneous decision making (Daniel R.R. v. State Bd. of Educ., 874 F.2d 10[Redacted]6, 1041 [5th Cir. 1989]; Engwiller v. Pine Plains Cent. Sch. Dist., 110 F. Supp. 2d 2[Redacted]6,247 [S.D.N.Y. 2000]; Evans, 9[Redacted]0 F. Supp. at 9[Redacted]).

Having said this, procedural flaws alone do not automatically translate into a denial of FAPE. A violation of FAPE may only be determined when these procedural inadequacies, individually or cumulatively, result in the loss of educational opportunity, or seriously infringe on a parent's participation in the creation or formulation of the IEP (Shapiro v. Paradise Valley Unified Sch. Dist., [Redacted]17 F.[Redacted]d 1072, 1079 [9th Cir. 200[Redacted]]; Knable v. Bexley City Sch. Dist., 2[Redacted]8 F.[Redacted]d 755, 766 [6th Cir. 2001], cert._denied 5[Redacted][Redacted] US 950 [2001]; Heather S. v. State of Wisconsin, 125 F.[Redacted]d 1045, 1059 [7th Cir. 1997]; W.G. v. Bd. of Trustees of Target Range Sch. Dist. No. 2[Redacted],960 F.2d 1479, 1484 [9th

Cir. 1992]; Burke Co. Bd. of Educ. v. Denton, 895 F.2d 97[Redacted],982 [4th Cir. 1990]; W.A. v. Pascarella, 15[Redacted] F.Supp. 2d 144, 15[Redacted] [D.Conn. 2001]; see Arlington Cent. Sch. Dist. v D.K., 2002 WL [Redacted]1521158 [S.D.N.Y Nov. 14, 2002]; see also J.D. v. Pawlet Sch. Dist., 224 F.[Redacted]d 60, 69-70 [2d Cir. 2000] [relief is warranted only if the procedural violation affected the student's right to a FAPE]).

Point I: Consistent with Burlington v. Department of (Education of (Massachusetts, 471 U.S. [Redacted]59 (1985), was the March /2, 2018 IEP reasonably calculated to confer an educational benefit upon [Redacted] during the 2018-2019 school year?

The parties have already stipulated to the fact that the District stands in violation of its obligation to provide FAPE during the 2018-2019 school year. In furtherance thereof, there is an agreement on behalf of the District to provide compensatory education. Tr. at 46[Redacted]. A claim regarding the failure of the District to provide a device has apparently been excepted from their agreement. As I am not in possession of the parties' agreement and am unfamiliar with its terms, 1 will not address a second claim for compensatory education involving the same school year and placements as I believe this claim is both duplicative and moot.

Point II: Consistent with [Redacted]4 CFR [Redacted]00.[Redacted]24(a)(2)(v) and 8 NYCRR 200.4(d)([Redacted])(v). did the District fail to meet Redacted needs through the absence of (an assistive technology assessment along with supports to ensure its appropriate use?

The Parents allege that the District stands in violation of its mandate to provide [Redacted] with FAPE during the 2019-2020 school year by virtue of its failure to provide the child with an appropriate system along with the interventions necessary to implement the system meaningfully. They additionally assert that [Redacted]'s programming did not comport with the District's obligation to provide [Redacted] with services in the least restrictive environment. Both issues pivot upon the nature and scope of evaluations conducted for [Redacted] as they reflect his ability to benefit from the continuum of educational services. Unfortunately, for the reasons set forth below, I find that the evaluations and assessments conducted for [Redacted] were inadequate.

Federal regulation requires that an IEP include a statement of the student's present levels of educational performance, including a description of how the student's disability affects his or her progress in the general curriculum ([Redacted]4 C.F.R.

§ [Redacted]00.[Redacted]47[a][l]; see also 8 NYCRR 200.4[d][2][i]). School districts may use a variety of assessment techniques such as criterion-referenced tests, standard achievement tests, diagnostic tests, other tests, or any combination thereof to determine the student's present levels of performance and areas of need ([Redacted]4 C.F.R. Part [Redacted]00, Appendix A, Section 1, Question I).

In developing the recommendations for a student's IEP, the CSE must consider the results of the initial or most recent evaluation; the student's strengths; the concerns of the parents for enhancing the education of their child; the academic, developmental, and functional needs of the student, including, as appropriate, the student's performance on any general State or district-wide assessments as well as any special factors as set forth in federal and State regulations ([Redacted]4 CFR [Redacted]00.[Redacted]24[a]; 8 NYCRR 200.4[d][2]). It is well settled that a CSE must consider privately­ obtained evaluations, provided that such evaluations meet the district's criteria, in any decision made with respect to the provision of a FAPE to a student ([Redacted]4 CFR [Redacted]00.502[c]; 8 NYCRR 200.5[g][l][vi]). However, "consideration" does not require substantive discussion, that every member of the CSE read the document, or that the CSE accord the private evaluation any particular weight (T.S. v. Bd. of Educ. of the Town of Ridgefield, 10 F.[Redacted]d 87, 89-90 [2d Cir. 199[Redacted]]; G.D. v. Westmoreland Sch. Dist., 9[Redacted]0 F.2d 942, 947 [1st Cir. 1991]; but see A.M. v. New York City Dep't of Educ., 845 F.[Redacted]d 52[Redacted], 544-45 [2d Cir. 2017] [finding that recommendations included in private evaluation created a consensus as to what the student required where the district did not conduct any evaluations of its own to call into question the opinions and recommendations contained in the private evaluations]).

The IEP for the 2019-2020 school year references multiple evaluations and assessments. It includes, at a minimum, standardized measures on the Rating Scale- Third Edition (GARS-[Redacted]), I System -[Redacted] (1-[Redacted]) and a Psychoeducational Evaluation dated January 18, 2018. Additional. progress summaries for speech/language therapy, occupational therapy and physical therapy were additionally included. Exh. 102, passim. Both a special education teacher and psychologist participated in the proceedings as did both Parents. Attorneys for both the Parents and District were present.

As a reflection of the student's present levels of performance, both strengths and weaknesses, the assessments attempted a global view of redacted’ s ability to function within the classroom. Nevertheless, testing was limited by redacted’ s ability to communicate and consequently, measures of [Redacted]'s cognitive abilities could not be assessed. By virtue of [Redacted]'s lack of functional language, it is likely that the child appeared more disabled than he is.

A review of Dr. Redacted report indicates that [Redacted] is a redacted child with emergent academic skills. When compliant, [Redacted] is capable of touch point math, matching colors and writing his name. He can anticipate work demands and will rush through them correctly when motivated by strong reinforcers. [Redacted] knows both the alphabet and his numbers, exhibiting ordering skills and one-to-one correspondence. He is additionally able to write his name and spell some words. Personnel have described the child as curious, very clever and "incredibly social." Tr. at I 05. He is further described as a child who enjoys books and having them read to him. Exh. 17 at [Redacted]. Reports indicate that while [Redacted] does not initiate social interactions, with prompting and structure, he is capable of reciprocal interactions and enjoys them. Exh. 102 at 4,5. [Redacted] additionally enjoys observing other children and, at home, interacting with siblings and neighbors.

Although standardized scores indicate extremely low levels of Rand functional academics, the Parents reported that, at home, [Redacted] was far more independent at self-care and home living skills. Clearly, the child engages in elopement and bolting behaviors. [Redacted] struggles with transitions and may tantrum when frustrated, throwing himself to the floor or engaging in self-stimulatory behaviors. Exh. 17, passim. As a result, the child requires ongoing adult supervision to ensure his safety and that of others. Nevertheless, [Redacted], the child's teacher, indicated that [Redacted] frustration tolerance and work refusals have been improving steadily. [Redacted] is now able to transition between activities more easily and can remain on task for greater periods of time. Tr. at 56. Similarly, the Parent testified that [Redacted] has attended 5 fairs, derbies and theme parks without incident. While transitions and aversive redacted input remain troublesome issues for the child, [Redacted]'s on-task behaviors have increased dramatically in the short span in which a behavior plan was implemented.

Additional assessments were substantively consistent with [Redacted] report, describing a sweet child on the autistic spectrum who engaged in repeated and interfering behaviors. Significantly, all evaluations described a child who would benefit from various accommodations and modifications due to his interfering behaviors, including a redacted. Nevertheless, the District's evaluations do not include an assistive technology assessment, an intervention repeatedly recommended. Indeed, the failure to perform an assistive technology assessment, in part, deprived [Redacted] of FAPE, as this very bright child was persistently relegated to primitive augmentative systems although he was quite versed in the use of his [Redacted].

In the matter, sub Judice, personnel repeatedly recommended the need for an assistive technology evaluation. In fact, as early as October I, 2015, an AT evaluation was recommended by [Redacted] kindergarten teacher. In her notes for the CSE convene, teacher stated,

"With redacted being such a large barrier for [Redacted], he needs as many other modes of communication as he can utilize right now." Exh. C at 1.

Months later, the development of a redacted was again recommended as the child was limited to a skeletal form of sign language and picture displays as his main form of expression. Exh. 117.

Although the CSE recommended access to an augmentative communication device, no assistive technology evaluation was initiated. On April 25, 20 I 7, the child's IEP again mandated access to an augmentative communication device throughout the day. Exh. 7 at 8. Access alone, however, does not translate into the meaningful use of [Redacted] 's device. Although the child may have possessed a device, he did not use it for functional communication. Rather, its use was largely limited to the therapeutic environments of speech therapy, absent any generalization. Indeed, classroom teaching assistant testified that she had received minimal training on the use of the device and that [Redacted] "never had the opportunity to capitalize" on it. Tr. At [Redacted][Redacted]7. As a result, she opined that [Redacted] communication deficits had obscured his actual cognitive abilities. Tr. at [Redacted]64.

On March 12, 2018; September 5, 2018; October 17, 2018; November 26, 2018; May 21, 2019 and August 9, 2019, the need for a device was reiterated. Exhs. 24 at 6; [Redacted] at 6; 41 at 6; 75 at 6; 87 at 7; 102 at 7. Finally, in October [Redacted], 2019, 6 personnel again noted that [Redacted] was redacted and did not have a redacted. Exh. I 09 at I. Although 6 personnel were preparing an redacted to address non-compliant behavior, [Redacted] primary difficulties were grounded in his lack of R and his resistance to the use of his device. Yet, this very specific behavior was not targeted among the various non-compliant behaviors addressed. In fact, Ms. Redacted testified that,

"... I think we need to move to [Redacted] as a total communicator. We've got to honor that he wants to use a variety of ways but not leave out the device because it offers him volumes of information that our little stuff just doesn't." Tr. at 15[Redacted]-154. She added,"... that the device was "the way to go." Tr. at 155.

Similarly, Ms. Redacted indicated that although proficient in its use, [Redacted] was not utilizing his device functionally to communicate with adults in the room Tr. at 122. She opined that, as a result, it was difficult for personnel to ascertain the child's needs and to preempt challenging and/or behaviors, an opinion shared by [Redacted]'s teaching assistant at 15. Tr. at [Redacted][Redacted]6- [Redacted][Redacted]7.

In furtherance thereof, Ms. Redacted indicated that the absence of a meaningful communication system compromised [Redacted]'s ability to access educational materials and to socialize with peers. Tr. at 122-12[Redacted]. As the use of [Redacted] 's specific augmentative communication device had become so aversive to [Redacted], teachers testified that they refrained from any insistence that [Redacted] utilize it, knowing their demands would be met with loud and redacted opposition.

Special educator staff reiterated the teacher’s observations. She testified that [Redacted] generally kept his device in his knapsack and became upset if it was visible on the shelf. As the Parents had indicated that [Redacted] would not utilize his device at home for the purpose of communication, the device was sent home inconsistently. Tr. at 62. Beyond this, if [Redacted] became upset that the device was going home, [Redacted] 's teacher would not "force the issue," weighing the possibility of a major tantrum if she had persisted. Tr. at 68-69. Similarly, other teachers opined unambiguously that [Redacted]'s lack of a functional communication interfered with his ability to engage productively with both personnel and peers. As a result, there was no way to facilitate consistent social interactions with the child's peers. Tr. at 411-412. Finally, while one of the school administrator’s indicated that [Redacted] did have [Redacted] on his device and was quite adept at navigating its screens, she acknowledged that the child chose not to engage with it as he preferred to use the entertainment features the device offered, rather than the communication aspects.

As part of the IEP development process, [Redacted]4 CFR [Redacted]00.[Redacted]24 (a)(2)(v) the IEP team "must consider whether the child needs assistive devices and services." See also 8 NYCRR 200.4 (d)([Redacted])(v). If participants on the student's IEP team determine that the student requires such a device in order to access an education, an assistive technology assessment must be performed. Letter to Anonymous, 24 IDELR 854 (OSEP 1996); Letter to Fisher, 2[Redacted] IDELR 565 (OSEP 1995); Letter to Naon, 22 IDELR 888 (OSEP 1995); Letter to Seiler, 20 IDELR 1216 (OSEP 199[Redacted]); and Letter to Anonymous, I 8 IDELR 627 (OSEP 1991). The statute mandates that each public agency must ensure that... in accordance with the evaluation requirements of [Redacted]4 CFR [Redacted]00.5[Redacted]2, the student’s functional capabilities and whether they may be increased, maintained, or improved through the use of[AT] devices or services... The evaluation should provide sufficient information to permit the IEP team to determine whether the student requires [AT] devices or services in order to receive FAPE. This includes "consideration as to whether the student requires assistive technology to be used in the student's home or in other settings in order for the student to receive a free appropriate public education. Districts, moreover, are required to provide assistive technology (hereinafter referenced as "AT") at no cost to the parents of a child with a disability (Letter to Cohen, 19 IDELR 278 [OSERS 1992)).

Indeed, the Comis have made it clear that the failure to evaluate a student's need for AT devices or services can amount to a denial of FAPE. See N01ih Hills Sch. Dist. v. M.B., 65 IDELR 150 (Pa. Commw. Ct. 2015). In that matter, a district's knowledge of a first grader's successful use of a tablet to ·communicate with adults outside of the school setting, rendered it responsible to determine why the child resorted to moaning and crying in the classroom to make his needs known). Conversely, the fact that a district offers AT and services to a classified student will not necessarily insulate it from a denial of FAPE claim. See Houston 5 Sch. Dist., 67 IDELR 1[Redacted][Redacted] (SEA GA 2015)( finding that although the district provided a voice-output device, the device's static display and [Redacted]2 buttons limited his R vocabulary and impeded his ability to make "measurable or adequate gains in the school setting"). Ultimately, if an AT evaluation shows that AT would not benefit a student in addressing his particular needs, a district need not provide it.

Under these circumstances, I find that the evaluations do not comply with the mandates set out in 8 NYCRR 200.4(b)(4). Although the child did, in fact, possess 1[Redacted], the D's use as a R device was virtually nil. The undisputed evidence indicates that the device was rarely sent home and the Parents' training, if any, was marginal. Tr. at 160. Ms. 11 testified that she did not have time to provide training and did not do so. Tr. at 160. Ms. 17 "did not know what the plan was for the D" as classroom personnel had not flagged this as an issue. Tr. at 126. Even Ms. 9 acknowledged the fact that 6 personnel did not have sufficient training or knowledge of AT to implement its use correctly and, for this reason, she had requested an outside AT assessment. Tr. at 25.

If a child is not utilizing a communication device, it is beyond cavil that the device is not functional for that individual. Although the child eventually had a redacted, it did not include any specific goals for the device's use as a communication device. Rather, its use was subsumed under the general category of "non-compliant behaviors." In reality, however, demands for [Redacted] to utilize his device were rarely, if ever, made as personnel were aware that this was an aversive request for the child. The failure to specifically target [Redacted]'s use of the device, however, was erroneous as it is likely [Redacted]'s lack of expressive communication was a predicate for much of his negative conduct. [Redacted] was clearly capable of fluidly scrolling between several screens on his device. He should not have been relegated to "minor" signing, pointing and pictures where a much more sophisticated and useful option was available with training. Tr. at [Redacted]0.

Clearly, it is not enough to provide a child with a augmentative communication device absent the professional development necessary to enable that device to function effectively. Likewise, if the Parents' training leaves them unable to generalize the device's use to the home environment, the value of such a device is compromised dramatically. Finally, [Redacted]'s resistance to his [Redacted] should have been incorporated into the non-compliant behavior warranting intervention as this was both a personnel and Parent concern of primary importance. Clearly, witnesses testified that [Redacted]'s lack of functional communication was a source of frustration, underpinning many of his behaviors while preventing him from socially engaging and accessing an education. Under these circumstances, the failure to perform an AT assessment or to complete an assessment addressing this most critical aspect of [Redacted]'s education does not comply with the mandates set out in 8 NYCRR 200.4(b)(4). Although the child did, in fact, possess [Redacted], its value was marginalized.

Point III: Consistent with [Redacted]4 CFR [Redacted]00.114(a)'s mandate, was [Redacted] placement consistent with the District's obligation to furnish services within the least restrictive environment?

The LRE mandate demands that students be educated in regular classroom settings to the maximum extent appropriate ([Redacted]4 CFR [Redacted]00.114 (a); and OSEP Memorandum 95-9, 21 IDELR 1152 (OSEP 1994). Specifically, to the extent possible, children with disabilities, including children in public or private institutions, must be educated with children who are nondisabled. As a corollary, special classes, separate schooling, or other removals of children with disabilities from the regular educational environment may occur only if the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily [emphasis added] [Redacted]4 CFR [Redacted]00.114 (a). Conversely, if a child's placement does not confer a "meaningful benefit" to the student and a more restrictive program is likely to provide such benefit, the child is entitled to be placed in that more restrictive program. P. v. Newington Bd. of Educ., 546 F.[Redacted]''. 111 (2"' Cir. 2008); Hartmann v. Loudoun 5 Bd. of Educ., 118 F. [Redacted]d. 996 (4th Cir. 1997), cert. denied, 118 S. Ct. 688 (1998), 522

U.S. 1046 (1998).

In fact, the IDEA creates a "strong presumption that children with disabilities will be educated in regular classes with appropriate aids and services. However, the IDEA does not mandate full inclusion in regular classes. 71 Fed. Reg. 46,585 (2006). See St. Louis Dev. Disabilities Treatment Ctr. Parents' Ass'n v. Mallory, 591 F. Supp, 1416 (W.D. Mo. 1984); ajfd, 557 IDELR 104 (8th Cir. 1985); and Lachman v. Illinois State Bd. of Educ., 852 F. 2"' 290 (7th Cir. 1988), cert. denied, 488 U.S. 92, (I 988). 118 F. [Redacted]'" 996 (4th Cir. 1997), cert. denied, 118 S. Ct. 688 (1998).

The term "inclusion" is commonly understood to mean that a student with disabilities receives at least portions (emphasis added) of his education in the regular education classroom (Board of Educ. of the City Sch. Dist. of the City of Rochester, 26 IDELR 82[Redacted] (SEA NY 1997); and Quitman Sch. Dist.,58 IDELR 2[Redacted]6 (SEA MS 2012). "Full inclusion" is the placement of the student in the redacted for the entire school day with all activities delivered in the redacted (New Haven Bd. of Educ., 110 LRP 4[Redacted]1[Redacted] (SEA CT 10/[Redacted]0/09).

In making a placement determination, priority must be given to placement in the regular classroom with any necessary supplemental aids and services to make that placement successful. Only after that placement is considered should districts move to more restrictive placement options. However, a child with a disability need not fail in the regular education environment before a local educational agency can consider or implement a placement in a more restrictive setting. Letter to Cohen,_25 IDELR 516(OSEP 1996); and OSEP Memorandum 95-9,_ll_lDELR 1152 (OSEP 1994).

In P. v. Newington Board of Education, supra, the Second Circuit adopted a two-pronged approach used by several other Circuit Courts, perhaps most notably the Third Circuit in Oberti v. Board of Educ.. When determining whether a student's proposed placement meets the least restrictive environment requirement, the Court analyzed (I) whether education in the general classroom, with the use of supplemental aids and services, can be achieved satisfactorily for a given student, and, if not, (2) whether the school has the student to the maximum extent appropriate.

In considering the first question, the inquiry requires additional consideration of (1) whether the school district has made reasonable efforts to accommodate the child in a regular classroom; (2) the educational benefits available to the child in a regular class, with appropriate supplementary aids and services, as compared to the benefits provided in a special education class; and ([Redacted]) the possible negative effects of the inclusion of the child on the education of the other students in the class. Id. [Redacted]4 8 N.Y.C.R.R. §§ 200.l(m), 200.6(d). Oberti v. Bd. of Educ., 995 F.2d 1204 (Cir. 199[Redacted]); P. v. Newington Bd. of Educ., 546 F.[Redacted]d 111, 120 (2d Cir. 2008).

Given this mandate, the District shoulders a heavy burden to educate students in regular classroom settings to the maximum extent appropriate. The IDEA's preference for inclusion is the default position. As numerous courts have recognized, 20 U.S.C. 1412(5)(8) sets forth a "strong congressional preference" for integrating children with disabilities in regular classrooms. See, e.g., Devries v. Fairfax 5 School Bd., 882 F.2d 876, 878 (4th Cir. 1989). Clearly, the District must first demonstrate that it duly considered general education with special education supports and services. It must then weight the benefits of the general education placement against the benefits of redacted, considering both educational and social benefits.

I find at the outset that the District did not make reasonable efforts to consider general education with supports and services. While multiple CSE convenes were held, there was never any consideration as to whether [Redacted] could remain within District with appropriate supports. The child has never participated in a redacted class and has been assigned to small self-contained classes since kindergarten. Exhs. 117, 7, 24, 71, 102.

Indeed, it appears that there was little more than a perfunctory discussion, if any, regarding [Redacted]'s participation in general education. For example, in response to queries about opportunities in the child's April 25, 2017 IEP, the document states, ""Need an explanation in the future" and "Not applicable" Exh. 7 at 9. On March 12, 2018; November 26, 2018; September 5, 2018; April 24, 2019 and August 9, 2019, the IEPS simply reiterate the same explanation regarding [Redacted]'s inappropriateness for redacted. The lEPs simply indicate that, "[Redacted] is a child with redacted spectrum disorder, he can be extremely redacted and is unable to effectively participate in any regular class activities. He is an elopement risk and needs one-to-one adult supervision. He refuses to sit in a chair and often rolls around on the floor and yells." Compare Exh. 24 at 10, Exh. [Redacted]5 at IO; Exh. 41 at 10; and Exh. 71 at IO; Exh. 102 at 11. Significantly, this opinion was offered by [Redacted]'s teacher at redacted, the child's then current placement during the 2018-2019 school year. In fact, it was this placement in which [Redacted] 's behavior had spun out of control, a placement later deemed a violation of FAPE for [Redacted] Although the child did have a one-to-one paraprofessional, teacher assistant redacted testified that the child and the aide "did not really get along" and [Redacted] "had more behaviors." Tr. at [Redacted]4[Redacted]. Personnel were clearly so frustrated with [Redacted] that, on February 5, 2019, a building administrator informed the teacher of the student that the student would be discharged from this location within three weeks, barely enough time for redacted to identify and staff a new placement for [Redacted]. Exh. 5[Redacted].

While the child's deficits are underscored in [Redacted]'s IEPs, it should be noted that the CSE failed to consider ameliorating interventions. Although a 1:1 paraprofessional was eventually assigned to [Redacted], the child had neither an redacted at this time. Indeed, an redacted was not conducted until December 2018 and no redacted developed at all until November 22, 2019. Exhs. [Redacted]8, 10[Redacted]. To date, there has never been a redacted which specifically addressed [Redacted]'s use of his device. Ultimately, the lack of support facilitated behaviors which had an impact upon the restrictiveness of the CSE team's placement recommendation. Under these circumstances, the District's claim that [Redacted] would be better served in redacted "is due no deference because school officials failed to consider what benefits she [the child] would receive from education in a regular classroom with appropriate supplemental aids and services.11 Greer vs. Rome City Sch. 950 F.2"d 698; See Daniel R.R. v. State Bd of Educ., 874 F.2"' 10[Redacted]6 (5'h Cir. 1989).

The second consideration denominated in Newington mandates consideration of the educational benefits available to the child in a regular class. 10 Indeed, it is the District's legal burden to demonstrate that the value of a restrictive setting comports with the Act's strong presumption in favor of redacted. Simply, it is the District's burden to justify a decision to exclude the child from the regular classroom. It is not the Parents' burden "to prove that their child was of being included" Oberti v. Bd. of Educ., 995 F.2d 1204, 1219 ([Redacted]"1 Cir. 199[Redacted]); Mavis vs. Sobol 8[Redacted]9 F Supp 968. As stated in Obe11i, "the IDEA 's strong presumption in favor of redacted would be turned on its head if parents had to prove that their child was redacted of being included, rather than the school district having to justify a decision to exclude the child from the regular classroom. By denying redacted, the District must show that the benefits of redacted exceed the benefits of redacted education.

10 With appropriate special education supports and services

Clearly, the District's perfunctory dismissal of redacted education is aligned with their view that redacted was simply not an appropriate paradigm for [Redacted] To support its position, the child's self-isolating, self-stimulatory and behaviors are cited throughout the record. Exhs. 17, 24, [Redacted]5, 41, 71 and 102, passim. The District, however, offered no interventions to address these behaviors and psychologist's recommendation that the District obtain an outside consultation was ignored. When a redacted was finally prepared in December 2018, there was no ensuing redacted. In the absence of a behavioral support plan, it is not surprising that [Redacted] behaviors persisted. However, even at his current placement, the teacher testified that, "if we were able to get him to be comfortable and happy, he was able to complete an insane amount of work the same amount of work as the other students in the classroom, if not more." Tr. at [Redacted]44. Indeed, even the school administrator testified that [Redacted] would benefit from having access to his typical developing peers. Tr. at [Redacted].

On August 9, 2019, a new redacted was prepared by 6 personnel. It is unclear what redacted was predicated upon. Redacted conducted 8 months earlier for a different educational setting is the only earlier redacted in the record. Exh. [Redacted]. Although there does not appear to be a predicate evaluation performed in the new placement, the failure to conduct an redacted does not rise to the level of an IDEA violation as long as the IEP identifies the student's behavioral problems and implements strategies to address them (C. F. v. the New York City Dep't of Educ., 746 F. [Redacted]'' 68, U.S. Court of Appeals, 2"' Cir., 11-500[Redacted]- cv). In the matter, sub Judice, the redacted references broad behaviors, common to many special education children. Nevertheless, four months later, even these rudimentary redacted yielded dramatic improvements in the child's non-compliant behaviors and his teacher reported [Redacted] was now on task 50% of the time. Exh. I 08 at I. In fact, a new behavior plan was prepared by October [Redacted], 2019, presumably aligned with the plan subsequently prepared on November 22, 2019. Exhs. 109, 112. Nevertheless, once again, the behavior plan excluded one of the child's primary issues, to wit: the functional use of his communication device.

The record indicates that [Redacted], the individual who worked most intimately with [Redacted] at his placement, opined that the child could make meaningful progress toward his IEP goals with supports and services in general education. Tr.. at 70. She testified that [Redacted]'s frustration tolerance and work refusals have been improving steadily. [Redacted] is now able to transition between activities more easily and can remain on task for greater periods of time. Tr. at 56. Moreover, with the use of a plan to facilitate [Redacted] ability to express his feelings and frustrations, it is likely that behavioral issues could be defused preemptively. Tr. at 122-12[Redacted]. Unfortunately, the school placement recommendation was largely based upon an unsuccessful redacted placement and 1:1 home instruction, absent the input of a redacted. Exh. I 02. The facts at bar are analogous to Oberti, supra.

Beyond this, the redacted program offers no opportunities for mainstreaming. Lunch, music, art and physical education occur exclusively within a special education paradigm. There are no general education students in the building. This provides no opportunity for [Redacted] to model appropriate peer behaviors or to interact with his non-disabled peers. While the IEPs reiterate classic asocial behaviors exhibited by the disabled children, several witnesses described a child who had limited, but real interest, in social interactions. Indeed, even the August 9, 2019 IEP references one of his teacher’s attempts to socialize. Exh. 102 at redacted placement. [Redacted] testified that [Redacted] will sit next to peers if they are engaging with an item of interest or observe peers on the computer. Tr. at 59-60. The child is additionally able to imitate others and engage in brief "song play" with corresponding motions. Exh. I 02 at 5.

Clearly, even with primitive opportunities, the child is attempting social overtures. In furtherance thereof, both [Redacted] and his teacher testified that peer interactions would be significantly enriched by the presence of a redacted. Tr. at 65, 12[Redacted],409,

412. In fact, his teacher described [Redacted] as a child who was "incredibly social, very interested, very, very curious," and who demonstrated "great eye contact." Tr. at 105. She observed that he is well liked by his classmates and that [Redacted] will seek out other students, watch what they are doing and participate in board games. Tr. at 118.

In speech, his therapist testified that [Redacted] was able to participate with his verbal classmates by utilizing concrete visuals on the smartboard. Tr. at I 50-151. Additional speech skills addressed during this time include conversational reciprocity, remaining on target and listening to others, all of which are independent of expressive verbal ability. Tr. at 149. She noted that [Redacted] "has a vast knowledge base and he uses this information." Tr. at 147. Moreover, in a structured setting, [Redacted] interacts reciprocally by facilitating the distribution of snacks (e.g., by engaging and responding to item requests from his peers). Tr. at 150-151. The witness added that [Redacted] enjoys watching and listening to others and will join a large group setting to do so. Tr. at 144. She, too, testified that the child would benefit from access to his typically developing peers. Tr. at 162. Even within the limited one-day observation, [Redacted] noted [Redacted]'s interest in social engagement and the limitations he experienced by virtue of his inability to communicate. Tr. at 412.

Lastly, teaching assistant observed that [Redacted] would benefit from interactions with typical peers as the student is a fast learner and would quickly understand classroom management expectations in terms of appropriate behaviors. Tr. At [Redacted]41. In fact, even at redacted, she noted that [Redacted] enjoys recess, running around with children and laughing at their antics. The student’s teacher testified that, "other than loud noise in the cafeteria, he was typically pretty fine." Tr. at [Redacted][Redacted]7. It is obvious that many of the benefits associated with mainstreamed education can only be offered by typical children. Beyond the educational benefits garnered from educating [Redacted] with typically developing peers, the social and behavioral benefits must be considered. In Daniel R.R., supra, the Court noted that, "Mainstreaming may have benefits in and of itself. For example, the language and behavior models available from nonhandicapped children may be essential or helpful to the handicapped child's development. In other words, although a handicapped child may not be able to absorb all of the regular education curriculum, he may benefit from nonacademic experiences in the regular education environment" (Daniel R.R. v. State Bd. of Educ., 874 F.2d 10[Redacted]6, 1041 [5th Cir. 1989].

On a cognitive level, [Redacted] has foundational skills in reading and math. He can identify letters, exhibit one-to-one correspondence in math and spell various words. Tr. at 4[Redacted]1. Nevertheless, many of his IEP goals have been largely repeated from year to year. Compare Exhs. 102 and 114; Tr. at 415. In other cases, the goals were met early and easily. Permutations of a handwriting goal have appeared since November 26, 2018. Exh. 41. Indeed, the child had a spelling goal as of March 12, 2018, yet his teaching assistant did not know he had this skill. Tr. at 410-411; Exhs. 24 at 6; [Redacted]5 at 6. While one of his therapist’s testified that [Redacted] had made progress with his [Redacted], its use was never generalized to other personnel or the Parents, dramatically circumscribing its value. The child is described as bright, smart and "clever." Tr. at 85, 1[Redacted]8. When asked to perform a non-preferred task, witnesses testified that [Redacted] could complete it rapidly and correctly, if motivated. His teacher testified that [Redacted] is a rapid visual learner who can "take his knowledge and

... apply it in various settings as (sic) he wants to get what he wants... " Tr. at 1[Redacted]8. As a child who responds well to technology, [Redacted]'s visual learning aptitude was quickly demonstrated when he learned the password to his Parents' computer.

As for the appropriateness of the placement involves a nearly three hour daily round trip (in ideal weather) to redacted. Taking judicial notice, I note that the District is located in a redacted in which steep and winding roads ice up during the winter. At these times, it is likely the trip would take longer. Again, Oberti reiterates that "there is a presumption in favor of placing the child, if possible, in the neighborhood... " Oberti at 1224, supra. The

Parent expressed it best. She testified,"... it's his community. It's his people. This is who he's going to grow up with in his life. If he's not involved in the community around him, how is everybody going to know him." Tr. at [Redacted]8[Redacted].

More substantively, the classroom profile is silent regarding the redacted needs of the class. It is additionally difficult to ascertain the skill levels of the students as the basis for determining reading and math scores is not articulated. Exh. 11[Redacted]. Indeed, [Redacted] could not be tested on standardized measures and it is unclear whether his teacher’s Composite scores align with those offered in the profile. Exh. 17. While there is only one other child who is redacted, it is unclear if [Redacted] has been placed with verbal or nonverbal peers. Although the child's current communication appears partially effective, he remains without a functional communication system and the depth of his skills remains untapped.

State regulations require that in special classes, students must be suitably grouped for instructional purposes with other students having similar individual needs (8 NYCRR 200.1[ww][[Redacted]][ii]; 200.6(a][[Redacted]], [h][[Redacted]]). Both the size and composition of a special class must be based on the similarity of the individual needs of the students according to: levels of academic or educational achievement and learning characteristics; levels of social development; levels of physical development; and the management needs of the students in the classroom. Given the paucity of information in the record, one cannot conclude that [Redacted] has been placed appropriately.

Moreover, while [Redacted] acknowledged that [Redacted] was well served during his related service sessions, she opined that the child's special education instruction was largely "non-academic and purposeless," and seemingly unconnected to a larger curricular goal. Tr. at 410-411. In furtherance thereof, it was her belief that [Redacted] was not benefiting from the current placement as [Redacted] was isolated within the classroom and not engaging in academic tasks which were goal-driven and meaningful. Tr. at 408, 412. At no time during her observation did [Redacted] observe any reading or math instruction although she was present for the entire day. Tr. at 45[Redacted]. Given this description of [Redacted] academic day, this is another reason to support the mainstreaming option as "a child may be able to absorb only a minimal amount of the regular education program, but may benefit enormously from the language models that his nonhandicapped peers provide"); See Daniel R.R., supra at 1049. Given all of the circumstances stated above, it is clear that the benefits to [Redacted] of mainstreaming would eclipse those of his self-contained classroom, a classroom which is additionally sited in an exclusively special education building.

Having determined that redacted education would be beneficial for [Redacted], one must then consider the possible negative effects of the child's inclusion on the education of the other students in the class. There is no question that the District would have to modify the curriculum. This, however, is "not a legitimate basis upon which to justify excluding a child" from the regular classroom unless the education of other students is significantly impaired. Obetti 11,801 F.Supp. at 140[Redacted]; see also [Redacted]4 C.F.R. Part [Redacted]00, App.C Question 48 (school must set fmth in the IEP any modifications of the regular education program necessary to accommodate a disabled child).

Clearly, [Redacted] cannot participate within a regular education class as do his typically developing peers. However, expert witness testified regarding several strategies which would facilitate [Redacted]'s ability to function within the nondisabled classroom. For example, she indicated that related services could be integrated into the child's class and that the child's IEP goals could easily be embedded into a general education curriculum. She additionally referenced the use of IEP matrixes in which overlap between general education and special education goals is utilized as a springboard for instruction. In some situations, a fourth-grade math curriculum could be modified to reflect smaller numbers or less demanding tasks. In some settings, technology might be utilized to accommodate the child's deficits. Although [Redacted] would require enhanced pre-teaching to facilitate his classroom participation, she believed this modification could easily be implemented.

[Redacted] further described strategies in which [Redacted] and his class would participate in the same academic activity, but with different materials or criteria. Although she did not believe [Redacted] would require a full-time special education instructor, she did opine that the child would need the support of a one-to-one paraprofessional to work collaboratively with the general educator and a full-time paraprofessional to modify instruction and make it more accessible to [Redacted] Tr. at 421. With the use of a behavior plan, behavioral supports, [Redacted] believed the child would be able to access an education within the mainstreamed environment. Although she acknowledged that integrating a disabled child into a nondisabled class would seem daunting, especially for those with limited experience in this field, she had seen this done successfully many times, and in some situations, with children who were even more impaired than [Redacted] With regard to [Redacted]'s redacted needs, [Redacted] opined that redacted could be minimized through thoughtful planning. Tr. at 42[Redacted]. She additionally referenced the use of various redacted techniques to minimize the incidence of redacted behaviors such as maximizing student engagement, use of breaks, movement opportunities and various "stay-put" techniques. Tr. at 420-421. In furtherance thereof, she opined that a behavior plan and communication device would additionally facilitate the child's transition to District and likely reduce the negative impact upon classmates. Finally, [Redacted] opined that a self-contained class comprised of children with multiple disabilities, deficits and needs, along with the enhanced pupil: personnel ratio would be more distracting that redacted education. Tr. at 422-42[Redacted]. In sum, [Redacted] believed that with the correct programming, a "planful" approach and special education supports, [Redacted] "would not pose a disturbance to the rest of the class." Tr. at 424.

As stated in Oberti, supra, "We recognize that some handicapped children may not be able to master as much of the regular education curriculum as their nonhandicapped classmates. This does not mean, however, that those handicapped children are not receiving any benefit from regular education. Nor does it mean that they are not receiving all of the benefit that their handicapping condition will permit. If the child's individual needs make Ying appropriate, we cannot deny the child access to regular education simply because his educational achievement lags behind that of his classmates." Oberti at 1217.

Mainstreamed education for [Redacted] has never been tried. Although the child clearly demonstrates redacted behaviors, the magnitude, duration and persistence of these behaviors cannot be predicted as he has yet to be provided with a behavioral plan with related parent/personnel training. Similarly, he has still not been provided with a redacted which would address the use of [Redacted]'s device as a redacted rather than entertainment device. Likewise, a functional communication assessment has still not been performed despite his teacher’s/therapist’s recommendation in 2018. Indeed, the child's special education teacher, the individual with the greatest instructional knowledge of [Redacted], testified that [Redacted] would benefit from mainstreamed education, an opinion shared by other personnel. Coupled with [Redacted]'s opinion that a modified curriculum and classroom environment along with behavioral supports would enable the child to substantively function in a mainstreamed class, the law requires that [Redacted] must be given the chance to succeed. Having said this, [Redacted] does not have the right to persistently interfere and disrupt the education of others in his classroom and, ultimately, successful mainstreaming will involve the intense cooperation of all.

Point IV: ls [Redacted] entitled to compensatory education for the 2019-2020 school year?

Addressing the issue of compensatory education, Application of a Child with a Disability No. 05-022 furnishes an excellent overview of compensatory education, and its discussion is recited herein. The IDEIA applies to children aged [Redacted] through 21 inclusive (20 U.S.C. § 1412[a][I][A)), subject to the limitation that it does not apply to children aged 18 through 21 where it is inconsistent with state law or practice on the provision of a public education (20 U.S.C. § 1412[a][l)[BJ[i]; see St. Johnsbu1y Academy v. D.H., 240 F.[Redacted]d 16[Redacted], 169 [2d Cir. 2001)).

New York Education Law specifically provides IDEIA eligibility to children through the end of the school year in which they turn 21 (N.Y. Educ. Law § 4402[5][b]; see 8 NYCRR 100.9[e]; see also Application of a Child with a Disability. Appeal No. 02-016; Application of a Child with a Disability, Appeal No. 00-024). Generally, under the IDEIA, "a [child with a disability] does not have a right to demand a public education beyond the age of twenty-one" (Mrs. C. v. Wheaton, 916 F.2d 69, 75 [2d Cir. 1990) [internal citation omitted)). Once a student ages out of the IDEA, he or she is "no longer entitled to the protections and benefits of the [IDEA)" (Honig v. Doe, 484 U.S. [Redacted]05, [Redacted]18 [1988); see Cosgrove v. Bd. of Educ., 175 F. Supp.2d [Redacted]75 [N.D.N.Y. 2001)).

In fact, the purpose of a compensatory education award is not to provide "extra" educational services to a student, but rather to redress "a school district's failure to provide that which it was obligated to provide earlier." Application of the Board of Education of the Millbrook Cent. Sch. Dist., App. No. 02-0[Redacted][Redacted], citing Bernardsville Bd. of Educ. v. J.H., 42 F.[Redacted]d 149, 158 [[Redacted]d Cir. 1994). Thus while "ordinary IEPs need only provide 'some benefit,' compensatory awards must do more-they must compensate." Reid v. Dist. of Columbia, 4401 F.[Redacted]d 516,525 (D.C. Cir. 2005). In pmt, the rationale for deferring an award of compensatory education is additionally based upon the notion that a School District must be given the opportunity to remedy its failings during the traditional course of the child's education.

[Redacted]'s aversion to the use of his augmentative device was never addressed, neither through training, an AT assessment nor the implementation of a redacted addressing this highly significant problem. Likewise, his education at redacted stands in violation of the District's obligation to service its disabled students in the least restrictive environment. For many of the reasons set forth earlier, I find that the child is entitled to compensatory education. However, the child's experience at redacted was not entirely a waste of time, as even [Redacted] testified that his related services were rendered meaningfully. Similarly, I note that by October [Redacted], 2019, the child's on-task behavior had increased to 50% of the time, following the implementation of a redacted. Exh.108 at I. Nevertheless, despite on-task performance, [Redacted] testified that many of the child's activities were purposeless and not particularly goal directed. Moreover, within the course of a day, she had not observed any math or reading instruction. The one reading goals simply requires a receptive yes/no discrimination. Given that the child can spell, this "reading" goal is questionable. Finally, while the Parents argue that the District did not offer redacted education to their child, I am disappointed by the Parent's testimony that she did not enroll [Redacted] in redacted community activities (e.g. boy scouts etc.) as "I've never gotten any offers from the school district... so I don't know how to contact anybody about it." Tr. at [Redacted]84.

Wherefore, it is hereby ordered that:

The child shall be entitled to ten months of compensatory education.

Dated: June 18, 2020

Lynn Botwinik Almeleh, Esq.

New York State Certified Impartial Hearing Officer

Persons in attendance on April 22, 2020 For the Parent:

REDACTED, Esq.

REDACTED, Parent

For the District:

REDACTED, Esq.

REDACTED, CSE Chairperson

REDACTED, Assistant Principal, 4 6

REDACTED, Special Education Teacher B!6, Occupational Therapist

REDACTED, Social Worker

REDACTED, Speech and Language Pathologist

Persons in attendance on April 2[Redacted], 2020 For the Parent:

REDACTED, Esq.

REDACTED, Parent

For the District:

REDACTED, Esq.

REDACTED, CSE Chairperson

REDACTED, School Psychologist

Persons in attendance on April 24, 2020 For the Parent

REDACTED, Esq.

REDACTE, Parent

REDACTED, Teaching Assistant

REDACTED, Ph.D., Program Coordinator, Department of Teaching and Leadership, Inclusive Education, 22 University

For the District:

REDACTED, Esq.

REDACTED, CSE Chairperson

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 appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.

2 Data points go from October 28, 2019 through November 7, 2019.

6 CROP is an acronym for Creating Rural Opportunities Partnership, a consortium of rural upstate school districts which offers summer and after-school programming.

9 Techniques for maximizing on-task behaviors such as using fidget toys, walking breaks, doodling and alternating seat choices