NY IHO #535109-20210205: Impartial...

NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.

FINDINGS OF FACT AND DECISION

Case Number: 535109

Student’s Name: [REDACTED]

Date of Birth: August 7, 2010

District: [REDACTED] UFSD

Hearing Requested by: Parent

Dates of Hearing: August 3, 2020,

August 10, 2020, September 2, 2020, September 17, 2020, October 7, 2020, and October 29, 2020,

Actual Record Closed Date: January 20, 2021

Hearing Officer: Gary D. Peters, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

August 3, 2020

[REDACTED] Attorney Parent

[REDACTED] Mother Parent

[REDACTED] Attorney District

[REDACTED] Director of Special Education District

August 10, 2020

[REDACTED] Attorney Parent

[REDACTED] Mother Parent

[REDACTED] Attorney District

[REDACTED] School Psychologist District

September 2, 2020

[REDACTED] Attorney Parent

[REDACTED] Mother Parent

[REDACTED] Psychiatrist Parent

[REDACTED] Director [REDACTED] Child Academy Parent [REDACTED] Attorney District [REDACTED] Attorney District

September 17, 2020

[REDACTED] Attorney Parent

[REDACTED] Mother Parent

[REDACTED] Director [REDACTED] Child Academy Parent [REDACTED] Attorney District [REDACTED] Attorney District

October 7, 2020

[REDACTED] Attorney Parent

[REDACTED] Mother Parent

[REDACTED] Attorney District

October 29, 2020,

[REDACTED] Attorney Parent

[REDACTED] Mother Parent

[REDACTED] Psychologist Parent

[REDACTED] Attorney District

DISTRICT’S EVIDENCE

D-1 August 30, 2019 letter from Parent’s counsel to District’s counsel enclosing 2016-2017 IEP (14 pages)

D-2 2016-2017 IEP, dated March 2, 2017 (13 pages)

D-3 2016-2017 IEP, dated January 11, 2017 (13 pages)

D-4 2016-2017 IEP, dated November 3, 2016 (13 pages)

D-5 2016-2017 IEP, dated August 8, 2016 (10 pages)

D-6 2016-2017 IEP, dated June 16, 2016 (17 pages)

D-7 2015-2016 IEP, dated November 10, 2015 (13 pages)

D-8 2015-2016 IEP, dated October 15, 2015 (13 pages)

D-9 2015-2016 IEP, dated July 27, 2015 (11 pages)

D-10 December 12, 2017 e-mail from [REDACTED], District Coordinator, [REDACTED] Education & Research, to [REDACTED], Director of Special Education (2 pages)

D-11 November 8, 2018 e-mail from [REDACTED], [REDACTED] Children’s Therapy, to [REDACTED], [REDACTED] U.F.S.D. (2 pages)

D-12 November 29, 2018 e-mail from [REDACTED], [REDACTED] U.F.S.D., to District’s counsel, enclosing e-mail from [REDACTED] Education & Research (2 pages)

D-13 Student Progress Reports from [REDACTED] Education and Research, dated January 22, 2018, February 16, 2018 and September 6, 2019 (5 pages)

D-14 January 3, 2019 letter from Parent’s counsel to [REDACTED], Director of Special Education, requesting a CSE meeting (2 pages)

D-15 May 14, 2019 e-mail from [REDACTED], [REDACTED] U.F.S.D., to [REDACTED], Director of Special Education (1 page)

D-16 Incident/Statement, dated May 13, 2019 (2 pages)

D-17 July 29, 2019 e-mail from Parent’s counsel to District’s counsel enclosing Student records from the [REDACTED] Child Academy (18 pages)

D-18 July 31, 2019 e-mail from [REDACTED], School Psychologist, to [REDACTED], Psychologist (3 pages)

D-19 July 31, 2019 letter from Parent’s counsel to District’s counsel (1 page)

D-20 August 22, 2019 e-mail from District’s counsel to Parent’s counsel enclosing parent application for the [REDACTED] School (13 pages)

D-21 September 6, 2019 e-mails between District’s counsel and Parent’s counsel regarding a [REDACTED] [REDACTED] Consent Form to Exchange Information for Purposes of Program Screening

(2 pages)

D-22 Functional Behavior Assessment, dated September 22, 2015 (5 pages)

D-23 Functional Behavioral Assessment and Behavior Intervention Plan, dated November 2015

(12 pages)

D-24 [REDACTED] [REDACTED] Counseling Update, dated December 11, 2015 (2 pages)

D-25 [REDACTED] [REDACTED] Teacher Report, dated December 11, 2015 (5 pages)

D-26 [REDACTED] [REDACTED] Behavior Intervention Plan Evaluation, dated February 12, 2016, April 12, 2016 and June 9, 2016 (3 pages)

D-27 [REDACTED] U.F.S.D. Educational Assessment, dated October 18, 2016 (5 pages)

D-28 [REDACTED] U.F.S.D. Psycho-educational Evaluation, dated October 26, 2016 (13 pages)

D-29 Functional Behavior Assessment and Behavior Intervention Plan, dated January 11, 2017

(10 pages)

D-30 [REDACTED] U.F.S.D. Behavioral Update, dated February 17, 2017 (2 pages)

D-31 Functional Behavior Assessment, dated March 27, 2017 (10 pages)

D-32 May 13, 2019 bus surveillance video – Part I

D-33 May 13, 2019 bus surveillance video – Part II

D-34 Printout from the [REDACTED] Child Academy website, undated (site visited on July 27, 2020) (5 pgs)

D-35 Audio recording from May 13, 2019 bus incident

PARENT’S EVIDENCE

Exhibit Description Number of Pages Date

I. CORRESPONDENCE

A. Notice of Rejection and/

Notice of Unilateral Placement and Intent

09/10/19

B. Impartial Hearing Request

01/24/20

C. Letter to Counsel for District regarding 2019-2020 Placement Recommendation

07/31/19

D. Letter to District Requesting CSE Meeting

01/03/19

E. Letter from [REDACTED] Health Regarding [REDACTED]

03/08/18

F. Parent Notification to District NOT to Share Information with Anyone Without Written Consent

11/05/17

II. EVALUATIONS

Initial Evaluation by [REDACTED] UFSD

10/18/16

Comprehensive Psychological Evaluation Report by [REDACTED], PhD

03/18/19

Supplement to Comprehensive Report Review of Reading Program

01/2019

Supplement to Comprehensive Report Review of Math Program

01/2019

Addendum to Comprehensive Psychological Evaluation from [REDACTED]

08/14/19

District’s Requested Modifications to [REDACTED]’s Evaluation

2 undated

Evaluation Report by [REDACTED]

07/20/19

• IEP DOCUMENTS

Notice of Members Scheduled to Attend 08/16/19 CSE Meeting

08/16/19

Signed Consent to Exchange Information Between [REDACTED] School District and [REDACTED]

07/01/19

Signed Consent to Exchange Information Between [REDACTED] School District and Inter [REDACTED] Screening

07/01/19

07/01/19 CSE Attendance Form

07/01/19

Notice of 07/01/19 CSE Meeting and List of Attendees

06/28/19

Notice of 02/06/19 CSE Meeting and List of Attendees

01/18/19

Draft IEP 01/11/17

01/11/17

2016-2017 IEP Pendency Placement

03/02/17

2017-2018 IEP

09/05/17

• 2018-2019 DOCUMENTS

Class profile 8:1:2 Class 2019-2020 School Year

2019/2020

12:1 Class profile of Pendency Placement For 2019-2020 School Year

2019/2020

• [REDACTED] CHILD ACADEMY DOCUMENTS

[REDACTED] Child April 2019 Progress Report Submitted to CSE

April 2019

[REDACTED] Child Grades, Submitted to CSE

Spring 2019

AA.

[REDACTED] Child Report from Deborah Cuneo Submitted to CSE

Spring 2019

BB.

[REDACTED] Child ELA Progress Report

06/11/19

CC.

from Laurie nor [REDACTED]y, Submitted to CSE [REDACTED] Child Progress Report

06/21/19

DD.

Summary of Progress and Proposed Supports for 2019-2020 School Year, Submitted to CSE

2019/2020

EE.

Supplemental Speech Therapy Report

06/2019

FF.

Speech and Language Goals and Objectives

2 undated

GG.

Math Progress Report

5 undated

HH.

Report Card

Spring 2019/Fall 2019/Spring 2020

2019/2020

• RESOLUTION AGREEMENTS

II.

Resolution Agreement 08/21/17

08/21/17

JJ.

Resolution Agreement 02/07/19

02/07/19

• SUBPOENA DOCUMENTATION

KK.

2019-2020 Enrollment Contract

09/11/19

LL.

[REDACTED] Child Academy Progress Report

06/26/20

MM.

[REDACTED] Child Academy Progress Report

01/24/20

NN.

[REDACTED]’s 2019-2020 Class Schedule

1 undated

OO.

[REDACTED] Behavior Guidelines

4 undated

PP.

[REDACTED] Child Academy Plan for “Learning in this COVID World”

2 undated

QQ.

[REDACTED] Child Academy Information Guide

2020

RR.

Email between Counsel for District and Parent’s Counsel

07/08/19

SS.

Email between Counsel for District and Parent’s Counsel, with Settlement Discussions Deleted

02/11/20

TT.

[REDACTED] School District Calendar

2019/2020

UU.

VIII. EXHIBITS DISCLOSED 08/25/2020

Communication between Parent and [REDACTED]

14 multiple

VV.

[REDACTED] Academy Behavior Intervention Plan

12/11/17

WW.

[REDACTED] Academy

Functional Behavioral Assessment

3 undated

XX.

Text Message from [REDACTED] to Parent

08/16/19

YY.

Email from [REDACTED] to Parent Regarding Questionnaires

12/10/18

IX. EXHIBIT DISCLOSED 09/14/2020

ZZ.

Progress Summary

06/07/19

AAA.

Letter from Parent to [REDACTED]

10/28/15

INTRODUCTION

On the above dates, I conducted hearings, pursuant to the Individuals Disability Education Act (IDEA, 20 U.S.C. section 1415 (f)(3) regarding a special education program, Students with Disability, NYSED Case# 535109 The hearings were conducted “Remotely” via video conference. The student’s parent submitted a request for an impartial hearing dated January 24, 2020. At the hearing, [REDACTED] and [REDACTED] Esqs. represented the [REDACTED] UFSD hereinafter referred to as the “District” and [REDACTED] Esq. represented the parent.

THE DISTRICT’S POSITION The District maintained that it offered the Student ([REDACTED]) a FAPE for the 2019-.020 school year and that there is no legal basis to order the District to pay for tuition and expenses incurred as a result of their unilateral decision to place the Student at [REDACTED] Child. Additionally, that the Parent has not satisfied her burden to establish that he unilateral placement at [REDACTED] Child was appropriate or that the equities are in her favor.

THE PARENT’S POSITION

[REDACTED] is a 10-year-old boy was classified as follows: Attention-Deficit/Hyperactivity Disorder (“ADHD”) and with Specific Learning Disorder with impairments in reading (dyslexia), written expression, mathematics, significant deficits in motor planning (dyspraxia), executive functioning, and speech-language development (apraxia). His deficits became apparent in pre-kindergarten and impacted his learning. [REDACTED] received "PROMPT' speech therapy, occupational therapy and physical therapy through Early Intervention Services. [REDACTED] initially attended kindergarten in an inclusion classroom within the [REDACTED] School District, where he and his Parent resided. He exhibited behaviors and was unable to keep up with his peers.

The [REDACTED] School District placed him at [REDACTED] [REDACTED] [REDACTED] Elementary School in an 8:1:1 ratio special class. He was often unable to perform the tasks assigned to him. [REDACTED] received unjust punishment for his perceived non-compliance, which often led to his being placed in padded de-escalation rooms or enclosed in a small mat box. He experienced being dragged to the de-escalation room by his wrist causing him physical pain. The Parent memorialized her concerns about the inappropriateness of such punitive measures at [REDACTED] by letter to [REDACTED], Head of Special Education at the [REDACTED] School District.

Prior to the start of the 2016-2017 (1st grade) school year, the Parent moved to the [REDACTED] School District and [REDACTED] was initially placed in a self-contained 12:1:1 classroom within the District’s [REDACTED] Elementary School. [REDACTED] made minimal, if any, academic progress. He endured persistent negative disciplinary measures for allegedly being non-compliant and for behavioral issues. The staff failed to recognize that he was overwhelmed and struggling to meet academic demands while lacking the basic foundational skills commensurate with his peers.

The District implemented a Behavior Plan, wherein, [REDACTED] was removed for noncompliance which included his “passive” refusal to complete a task or activity or to follow a task “directive”. He was unable to follow multi-step directions presented orally as he has processing issues; he couldn’t express himself due to his language deficits (Tr. 597). This Behavior Plan was unsigned and without the Parent's consent (Tr. 638, Ex. 29).

[REDACTED] was often locked inside a cold and small “de-escalation” room at [REDACTED] Elementary school which was described as more of a closet within a room. He would bang on the doors and window as the confinement was panic provoking, based upon his past experience at [REDACTED] (Tr. 590-592). [REDACTED] was not allowed to leave the de-escalation room to go to the bathroom, which at times resulted in his urinating on himself. Given his sensory issues he would take his wet clothes off. This was characterized by the District as "disrobement" behavior that was deemed as non-compliant (Tr. 602, Ex. 29).

The District failed to develop an IEP for the 2017-2018 school year and agreed to fund his placement at a private school, the [REDACTED] Academy for the 2017-2018 and 2018-2019 school years. At [REDACTED], the staff did not employ appropriate behavioral interventions and repeatedly removed [REDACTED] from the classroom (Tr. 653). By the middle of the 2018-2019 school year, [REDACTED] Academy informed the parent that her son would not be permitted to stay at school for a full day and that a neuropsychological evaluation was necessary with recommendations as to how his needs should be addressed in the school setting. Until then, the Parent was told that she would have to pick up [REDACTED] from [REDACTED] Academy at about 12:00 p.m. each day and that he would not be receiving a full day of educational instruction (Tr. 655).

The District was notified through Parent's attorney that [REDACTED] was not being provided with a full school day of instruction and an immediate CSE meeting was requested; the District failed to convene a CSE meeting. The Parent unilaterally placed the student at the [REDACTED] Child Academy ([REDACTED]) and by Resolution Agreement dated February 7, 2019, the District agreed to fund [REDACTED]’s placement at [REDACTED] for what remained of [REDACTED]’s 2018-2019 school year.

Regarding the school year in dispute, for the 2019-2020 school year the District failed to begin the process of addressing [REDACTED]’s 2019-2020 educational programming until June of 2019 (Tr. 72). The CSE convened on July 1, 2019; however, failed to develop an IEP and only requested that the parent sign a consent to apply to [REDACTED]. (Ex. O). The CSE met again on August 16, 2019; an IEP was still not developed, nor was an interim placement recommended pending the student's acceptance at [REDACTED] or another school. As of the start of the 2019-2020 school year, there was no program recommendation, no IEP and no placement offered for [REDACTED] by the District.

Without an educational placement for [REDACTED] and based upon the District's failure to offer a FAPE, the Parent unilaterally placed the Student at [REDACTED] again for the 2019-2020 school year, as he had made significant progress there during the second half of the 2018-2019 school year. The Parent served the District with a Notice of Rejection and Intent to Unilaterally Place dated September 10, 2019 (Ex. A).

THE PARENT’S CASE

Prong I

As stated above, the District was notified through Parent's attorney that [REDACTED] was not being provided with a full school day of instruction and an immediate CSE meeting was requested. The District failed to convene a CSE meeting to offer the student an appropriate educational program (Ex. D). The Parent unilaterally placed the student at the [REDACTED] Child Academy ([REDACTED]) and by Resolution Agreement dated February 7, 2019, the District agreed to fund [REDACTED]’s placement at [REDACTED] for the balance of the 2018-2019 school year.

The student’s mother, [REDACTED] testified that an IEP was not developed for her son at any time during the 2019-2020 school year; this was corroborated by all the witnesses that testified herein. [REDACTED] agreed that no IEP was developed as a result of the August 16, 2019 CSE meeting and that [REDACTED] began the 2019-2020 school year without a specific class assignment or IEP (Tr. 123, 139-140).

[REDACTED], Director of Special Education for [REDACTED] UFSD conceded that the District failed to discuss [REDACTED]’s goals, or document his present levels of performance, at the July 1, 2019 CSE meeting (Tr. 123, 126). [REDACTED], [REDACTED]’s founder and Head of School attended the July 1, 2019 CSE meeting; she testified that she was not asked about [REDACTED]’s present levels of performance or recommended goals (Tr. 418). As per Parent’s counsel, [REDACTED] insinuated that the CSE did not have sufficient information to prepare a final IEP for [REDACTED] at the July 1, 2019 CSE meeting because the District had purportedly not received progress reporting from [REDACTED] prior to the meeting (Tr. 123, 140). However, [REDACTED] testified, that the information had in fact been received by the District on July 1, 2019 and that the information was available prior to its August 16, 2019 CSE meeting (Tr. 132-134).

[REDACTED] stated that [REDACTED] personnel, including [REDACTED], were present at the July 1, 2019 CSE meeting and provided information regarding [REDACTED]’s progress at that time (Tr. 82-83). [REDACTED] testified that by the August 16, 2019 CSE meeting, [REDACTED] would not have had any educational input to provide concerning [REDACTED] (Tr. 133-134, 145-146). [REDACTED] stated that no one from the District observed [REDACTED]'s classroom performance within during the 2018-2019 school year preceding the July 1,2019 CSE meeting to assess his functioning within the school setting (Tr. 419).

[REDACTED], a board-certified psychiatrist with specialty in child psychiatry who independently examined [REDACTED] in July 2019, testified that D.B was not willfully oppositional (Tr. 330). His behaviors stemmed from emotional, psychological, and learning differences that made it difficult for him to perform within his prior learning environments (Tr. 330); his past non-compliance was triggered by his learning frustrations and his disability (Tr. 277-278), a conclusion shared by licensed psychologist [REDACTED], who also evaluated [REDACTED] independently (Tr. 781-782). [REDACTED] testified that [REDACTED]’s perceived aggression flowed from his academic and emotional difficulties, “which weren’t being addressed” by the district (Tr. 311).

[REDACTED] testified that the District’s functional behavioral assessment (“FBA”) (Exhibit 29), was erroneously based upon the notion that [REDACTED] was a student who willfully engaged in behaviors as opposed to his actual reaction to academic struggles difficulties with which he was confronted (Tr. 794-798). [REDACTED] questioned the effectiveness of the District's Behavior Plan (Tr. 797) and stated that punishment itself was contraindicated in [REDACTED]’s case (Tr. 784). In line with [REDACTED], [REDACTED] testified that the District’s use of restraints with [REDACTED] had been traumatizing for him (Tr. 288).

[REDACTED] testified that [REDACTED] is a very gentle, sweet, caring, and intelligent boy who can actually sit for long periods of time when doing something with which he feels confident or comfortable (Tr. 553). [REDACTED] explained that [REDACTED]’s triggers tend to be difficulties in math or reading-related issues which are connected to academic challenges (Tr. 554). [REDACTED] opined that [REDACTED] was not malicious, that he does not “do things intentionally, and his reactions are rather his own anxiety, fear of not being able to perform”. The stigma of not being able to read and do math at his age is profound and this is what would trigger behaviors (Tr. 411). At [REDACTED], [REDACTED] explained that it took a lot of work to build up his self-confidence. He would become dysregulated if presented with something that he was not comfortable with (Tr. 411 - 412). Further, [REDACTED] testified that [REDACTED] expressed “fear” and “dread” about his perception of school when based upon his previous exposure to cold isolation rooms (Tr. 340-341, 553). Additionally, that when [REDACTED] first came into the school she was told that [REDACTED] was "unteachable" and a "monster" (Tr. 410).

[REDACTED] testified that [REDACTED]’s academic deficits are significant: executive functioning and focus deficits severe written language deficits pronounced reading deficits and performance within the 3rd percentile in math (Tr. 772-775). [REDACTED], [REDACTED] and [REDACTED] opined that [REDACTED]’s behaviors flowed from his underlying learning difficulties and executive functioning deficits describing him as not so much “motivated to exhibit problematic or oppositional behaviors, so much as he’s unable to inhibit the behaviors that he’s demonstrating due to his deficits in executive functioning” (Tr. 778-780).

Additionally, On July 1, 2019, the annual review CSE meeting was held, wherein, the CSE recommended placing the Student in the in-District 12:1 special class while the District sent an inter-[REDACTED] screening packet to [REDACTED] [REDACTED]’ [REDACTED] Elementary (Tr. 84-87). This recommendation doesn’t align with the small class recommendation of [REDACTED] and [REDACTED].

PRONG II

[REDACTED] is a New York State licensed and certified private school currently providing special education and related services to students ranging from the 3rd through 11th grades (Tr. 444, 451). [REDACTED] offers students, a clinically integrated program that includes academic, social/emotional, speech, psychological, and behavioral supports (Tr. 337). [REDACTED]’s teachers are all licensed and certified and carry master’s degrees in the various academic subjects they teach (Tr. 339-340). [REDACTED]’s special education director is a certified special education instructor and its teachers all have background experience in special education prior to hiring (Tr. 340).

[REDACTED] receives individualized instruction in a classroom setting that is quiet and free from distractions (Tr. 399) and is not removed from the academic setting as part of [REDACTED]’s behavior plan (Tr. 380-381). He is provided with a variety of manipulatives to hold or play with in order to mitigate and address his sensory needs throughout the school day (Tr. 399-400). As part of addressing his executive functioning challenges, [REDACTED] provides [REDACTED] with a visual schedule of planned work and activities for every class so that he can be prepared as to the day’s activities and expectations (Tr. 369-370), as recommended by [REDACTED] (Tr. 786). Regarding, [REDACTED]’s sensory processing issues, [REDACTED] creates custom learning materials for him in a format that does not overwhelm him (Tr. 398-399). His reading literacy program includes evidence-based reading instruction, including Orton-Gillingham and Wilson programs to address reading basics, letter identification, sound identification, phonemic awareness, sight word, dictation, reading comprehension, and listening comprehension skills (Tr. 351). [REDACTED] also receives PROMPT speech therapy (Tr. 353), occupational therapy, and counseling services (Tr. 522-524). [REDACTED] benefited from [REDACTED]’s Saturday social skills excursions designed to help [REDACTED] students who felt they did not “have friends” (Tr. 424-425).

[REDACTED]’s goals and objectives are discussed by his instructors and school administrators on a daily basis after school has ended in order to assess his next day’s goals and to adjust his programming as needed (Tr. 362, 554). [REDACTED]’s work is catalogued by [REDACTED] and saved in portfolio binders for progress tracking, which is reported to the Parent (Tr. 540-541).

[REDACTED] testified that [REDACTED]’s program for [REDACTED] aligns with the recommendations of [REDACTED]. [REDACTED] testified that [REDACTED] provides a highly specialized program with an individualized curriculum designed to address [REDACTED]’s needs employing evidence-based executive functioning interventions by a cohesive team of multidisciplinary professionals (Tr. 406). She explained that [REDACTED] comprises a “fundamentally nurturing, supportive environment” that does not use punishment as a disciplinary tool with [REDACTED] (Tr. 407), which is also in-line with [REDACTED]’s opinion that punishment is contraindicated for a student like [REDACTED] (Tr. 784).

[REDACTED] corroborated [REDACTED]’s need for the type of individualized instruction in a small setting offered by [REDACTED] as opposed to the inappropriate programs that he had been attending at [REDACTED] and [REDACTED] based on his profile (Tr. 286-287, 308).

[REDACTED] testified that [REDACTED] develops behavior plans for all of its individual students (Tr. 473, 475-481) in addition to a master behavior plan developed for all students (Tr. 503). [REDACTED]’s formal behavior plan is based upon a holistic, student-centered approach to behavioral intervention that does not include use of punishment, but rather employs a methodology developed by [REDACTED] psychologist [REDACTED] for agreeing on certain preferred behaviors (Tr. 359). [REDACTED]’s instructors utilize positive behavior strategies that include specific behavior praise, ignoring of problem behavior, and use of “first-then” statements to establish expectations and clear up ambiguities (Tr. 371-372). [REDACTED] stated that [REDACTED] does not track negative behaviors but rather emphasizes positive behaviors, measuring plan effectiveness by tracking the student’s ability to attend class with educational purpose (Tr. 501). These approaches align with the recommendations of [REDACTED] who testified regarding [REDACTED]’s need for positive behavioral strategies (Tr. 822) including the type of positive behavior tracking being performed at [REDACTED] (Tr. 834) and the benefits he will derive from guidance centered around what to do rather than what he cannot do (Tr. 783-785).

[REDACTED] stated that [REDACTED] is provided with scheduled and un-scheduled breaks based upon his need to address sensory requirements or simply to “catch his breath” during the school day (Tr. 361). [REDACTED] offers a multi-layered reward system that includes use of a daily visual achievement chart used to encourage him to earn rewards that can include going to a movie or other entertainment venues during after school hours with his instructor and the Parent (Tr. 364), use of a inoperative cellular phone (Tr. 376- 377), and having lunch in [REDACTED]’s office (Id.).

The student’s mother, [REDACTED] asserts that the District made unfounded allegations in response to an incident that occurred on May 13, 2019 as [REDACTED] entered the bus to leave school to attend his aftercare placement. The Parent submits that this was an isolated incident (Tr. 674) and is not probative as to whether [REDACTED] is an appropriate placement. As per Parent’s counsel the incident stood as an example of demonstrating how [REDACTED] and [REDACTED] personnel were able to de-escalate and handle what was a volatile situation outside of the academic setting. [REDACTED] was experiencing stress, worry, fear and discomfort under extreme circumstances.

The May 13, 2019 bus incident occurred as [REDACTED] became soaking wet upon being escorted through “torrential” rain onto the District’s school bus at the end of the school day (Tr. 663). At the time, [REDACTED] had been experiencing life-threatening health problems, including a cancer diagnosis and end- stage liver failure that directly impacted [REDACTED]s overall stress levels (Tr. 663-673). [REDACTED] was aware of the general nature of the Parent’s ailments and struggled with leaving [REDACTED] which he considered a safe place, to not knowing “if [Parent] was still going to be alive when he got home” (Tr. 673).

The Parent stated that her son attended an aftercare program when he left school (Tr. 667). [REDACTED] testified that [REDACTED] did not like leaving [REDACTED] at the end of the day to attend his aftercare program at that time (Tr. 383, 391). The Parent stated that her son experiences sensory issues that include an aversion to being wet or being in wet clothing as he was when he left the school to get on the bus that day (Tr. 663).

As per [REDACTED], the bus incident was the first time she had observed [REDACTED] behave in that manner (Tr. 388). It was one of the two worst behavioral episodes they had experienced with [REDACTED], both within about a week’s time and involving dysregulation prior to having to attend his aftercare program (Tr. 509-510). Despite the extraordinary circumstances involved, [REDACTED] testified that she was able to stay with [REDACTED] until he was calm and safely off the bus to be picked up by Parent (Tr. 391).

[REDACTED] Child is an educational institution utilizing a research-based approach to instruct children with significant disabilities, such as [REDACTED], diagnosed with Autism Spectrum Disorder. The program is extremely individualized for each student, applying a therapeutic, collaborative problem-solving model. The program allows for on-the- spot interventions and applies a social-thinking curriculum, teaching models of social interaction specific to children with autism. They readily utilize therapeutic interventions, social thinking, and small class settings of no more than 8 students allowing for individualized, direct instruction. (Tr. at 759-760, 906, 921, 924-925).

Parent’s counsel maintained that the record demonstrates that since his enrollment at [REDACTED], [REDACTED] has made great strides both academically and emotionally. [REDACTED] testified that upon entering [REDACTED] at eight years old; he could not recite the alphabet, was not reading and could not count past 11 independently (Tr. 344-345). [REDACTED] stated that after 1½ months at [REDACTED], that her son was able to read 15 to 20 sight words, was continuing to work on phonics and phonemic awareness, and was very excited about being able to learn and the prospect that he could be a good student (Tr. 345-346, Tr. 280-281). By the end of the 2018-2019 school year, [REDACTED] was scoring in the average range in letter/sound recognition, phonics, and phonemic awareness as well as showing strong listening comprehension skills (Tr. 348, 400, Ex. Z). [REDACTED] showed progress in the areas of science and math; he made “great improvement in his Number Sequencing,” in his ability to identify, read and write numbers, and in counting to numbers above 100 with assistance (Ex. CC).

[REDACTED] opined that as of January 2020, [REDACTED] had made noticeable improvements across academic domains (Tr. 400-401, Ex. MM) and his teacher noted that his attention span and behavior showed improvement (Tr. 403). [REDACTED] indicated that [REDACTED] was demonstrating that he was in fact "available" for learning for most of the school day at [REDACTED] (Tr. 404) so long as he is provided with instruction and receives positive interventions in a way that meets his educational needs.

The Parent testified that since her son attended [REDACTED], that his attitude regarding learning has improved; he is showing pride in his work and has been very successful in STEM related activities (Tr. 687-689). Additionally, since attending WC, [REDACTED] has demonstrated the ability to identify, count, and add currency, skip-count, blend sounds, and identify certain sight words (Tr. 689). The Parent testified that [REDACTED] now “loves” going to school and does not get upset with doing tasks, showing improvements in his growth and learning mindset as well as in his attitude and abilities (Tr. 690).

[REDACTED] described academic programming, clinical social and emotional supports at [REDACTED], (Tr. 337, 353), including a social thinking curriculum developed by [REDACTED] (Tr. 353). [REDACTED] described how [REDACTED] liked to play with the other kids, had friends at [REDACTED] and described a periodic get-together program at school aimed at fostering play time and friendships (Tr. 424-425).

PRONG III

[REDACTED] stated that the Parent signed a consent form when the CSE met for the purposes of transferring and providing that same information to the District (Tr. 105-106). The Parent corroborated the same in her own testimony (Tr. 588). [REDACTED] testified that the Parent cancelled the CSE annual review meeting originally scheduled for June 18, 2019 (Tr. 72-73); however, the meeting was not cancelled by the Parent, rather it was rescheduled due to a family medical emergency experienced by the Parent’s legal counsel, all upon due notice to the District (Tr. 674-675).

[REDACTED] alleged that the Parent was uncooperative when it came to implementing a behavior intervention plan for [REDACTED] and sharing [REDACTED]’s medication regimen with the schools (Tr. 53-55). As per [REDACTED], [REDACTED] neglected to inform that these items were the subject of historic factual and legal disputes by the Parent, which culminated in the District’s May 22, 2017 written agreement to remove mention of any disciplinary actions, FBAs, or BIPs from [REDACTED]’s official file and seal any such information in a separate file, only to be opened if [REDACTED] re-enrolled in the District via legal “pendency” (Ex. II-4). The Parent testified, she had serious concerns about the context and veracity of certain disciplinary actions taken by the District, the specious nature of charges leveled, the lack of a manifestation hearing despite [REDACTED]’s being suspended on more than 10 occasions, and the legality of the school’s use of de-escalation and time-out rooms (Tr. 631-635).

The Parent testified that despite the District agreeing to removal of such notations from [REDACTED]’s IEP (see Ex. II-6), the District failed to do so with regard to [REDACTED]’s medication and FBA/BIP-related information (Tr. 634-635, Ex. D-2). On cross-examination, [REDACTED] conceded that the behavioral information documented in Exhibit L had been shared with Dr. [REDACTED] without notice to the Parent, despite an agreement on its sealing and a prior request from the Parent that such information not be disclosed without prior notice to her (Tr. 122-123). Both [REDACTED] and [REDACTED] testified as to supposed missing information in [REDACTED]’s evaluative report considered during the July 1, 2019 CSE meeting (Tr. 81, 170). Dr. [REDACTED] acknowledged that he was unaware of the agreement the District signed to seal that information. (Tr. 226). The parent testified that the district did not request her consent before providing Dr. [REDACTED] with information that the district had agreed to keep sealed (Tr. 678).

The Parent forwarded [REDACTED]’s evaluative questionnaires to [REDACTED]’s teachers at [REDACTED] as part of [REDACTED]’s evaluation (Tr. 657) so that the District teachers input could be considered as part of her comprehensive evaluation. [REDACTED] testified that as part of that process, [REDACTED], [REDACTED]’s classroom teacher at [REDACTED], completed the Behavior Assessment Scale for Children or BASC-3 rating scale that was ultimately made a part of [REDACTED]’s report (Tr. 815).

[REDACTED] stated that her report contained all necessary background information; however, she agreed to receive additional information from the District concerning [REDACTED] and to compose an addendum to her report (Tr. 790). [REDACTED] testified that information provided to her by the District was consistent with her findings (Tr. 791). [REDACTED] explained that the Parent had been forthcoming and provided her with the “overall picture and progression of” [REDACTED]’s difficulties at the outset during [REDACTED]’s intake process (Tr. 791-792). She submitted an addendum to her report at District request that in no way changed her original recommendations regarding [REDACTED]’s needs (Tr. 792). [REDACTED] testified that having [REDACTED]’s behavioral records would not have changed his recommendations either (Tr. 327-328).

[REDACTED] testified that the Parent had signed a consent on July 1, 2019 for the District to provide [REDACTED] with records for purposes of a screening (Tr. 86-87, 127; See also District witness [REDACTED] at Tr. 233-234 and Parent at Tr. 679 confirming the Parent’s consent) and that the CSE with reports from [REDACTED] and [REDACTED] (consenting to an addendum of the latter [Tr. 691]), and communicated her concerns freely with the schools (Tr. 691-692). As per [REDACTED], despite the fact that the District’s notice was deficient in terms of prior notice and participant accuracy, the Parent still attended the July 1, 2019 CSE meeting (Tr. 119).

The Parent testified that she provided [REDACTED] with a supply of reinforcers for [REDACTED], consented to providers speaking with one another while [REDACTED] attended [REDACTED] (Tr. 692), and acted in good faith in working with the District to find an appropriate placement for D.B’s 2019-2020 school year prior to unilaterally placing him at [REDACTED] (Tr. 693-694). In fact, the Parent testified as to how she began researching schools and alternative placements for [REDACTED] upon his exclusion from [REDACTED] in January 2019 and prior to her placing him at [REDACTED] at the end of that 2018-2019 school year (Tr. 660-662).

[REDACTED] opined that The Parent’s cooperation with the District regarding her son’s educational needs are remarkable considering her pervasive struggles with life-threatening illness. For instance, the Parent ensured that [REDACTED] remained informed as to her own difficulties, including a cancer diagnosis, end-stage liver failure (Tr. 664), two hospitalization procedures, and the impact of such horrific realities upon [REDACTED] (Tr. 711-712). The Parent tried to shield [REDACTED] from her hardships and keep things as normal as possible for him (Tr. 666-667), and she made it a point to attend all CSE meetings held by the District over the past two years despite whatever health issues she was experiencing as otherwise discussed herein.

The Parent maintained that she provided the District with proper and timely notice regarding her unilateral placement of her son at [REDACTED] and intention to seek tuition funding (Ex. A, Tr. 694). The Parent consented to sharing records from [REDACTED] and [REDACTED] with [REDACTED] (Tr. 127). Despite the Parent’s cooperation, [REDACTED] neither contacted her in response to the consent forms nor communicated with her about [REDACTED]’s possible attendance there during the 2019-2020 school year (Tr. 128, 679-680).

The District requested a second informational consent form (Exhibit 2) and asserts that it was unanswered by the Parent (Tr. 89-90). However, Parent maintained that this consent request for an application to the [REDACTED] School was a school that the parent requested that the District apply and to, was made by the district on September 6, 2020, after the school year had already commenced. (See District School Calendar Ex. TT). On cross-examination, [REDACTED] admitted that this request was made two days into the 2019-2020 school year (Tr. 131-132, Ex. TT).

The Parent testified, without rebuttal by the District, that she attended all CSE meetings requested by the District and consented to [REDACTED]’s District evaluations (Tr. 690). [REDACTED] testified, the District did not communicate with the Parent after the District received Parent’s Notice of Rejection / Intent to Unilaterally Place (Tr. 101).

THE DISTRICT’S CASE

Prong I In May 2017, the Parent unilaterally enrolled the Student at the [REDACTED] Academy (“[REDACTED]”) in Huntington, New York. Following discussions regarding the Parent’s disagreement with the Student’s IEP, the Parent and the District entered into a resolution agreement pursuant to which the Student would attend [REDACTED] from May 22, 2017 through the end of first grade and then for the 2017-2018 and 2018-2019 school years (P-II).

In November 2017, a social worker at [REDACTED] conducted an FBA that evaluated the following Student behaviors seen at [REDACTED]: Elopement, Destructive Behavior, Verbal Aggression, and Physical Aggression. [REDACTED] thereafter prepared a BIP, dated December 11, 2017, based upon the FBA (P- VV). The BIP required the following supervision for the Student: “A paraprofessional will be assigned to implement proactive and reactive strategies throughout the day” and “A para-professional will be assigned to monitor the student’s health” (id., p. 1).

While at [REDACTED], [REDACTED] received reading instruction from [REDACTED] Education and Research and Prompt speech/language therapy and physical therapy from [REDACTED] Therapy (see D-10, D-11, D-12, D-13). The service providers advised the District on several occasions from December 2017 through February 2018 that the Student’s behaviors during therapy sessions made it difficult or impossible to provide consistent instruction (see D-10, D-11, D-12, D-13).

The January 2018 reading instruction progress reports from [REDACTED] indicated that the reading instructor was “unable to deliver instruction” since services began in October 2017 because the Student is very distractible and his behavior has not been conducive to receiving instruction (D-13, p. 1). As a result, “no measurable progress” was made in his reading and the Student is often removed from reading sessions due to his behavioral issues (id.). The instructor recommended “a structured plan focusing on [the Student’s] behavior and attention” to allow for his reading support to be delivered” (id.). The February [REDACTED] progress report similarly advised that the Student continued to be removed due to behavior and safety concerns and that reading instruction continued to not be delivered due to the Student’s behaviors (D-13, p. 3).

The following school year, on November 29, 2018, [REDACTED] advised the District by e- mail that “reading services for [the Student] would be seized [sic] due to the frequency, duration and intensity of [the Student’s] current behaviors. These behaviors are impeding on his ability to learn during our sessions.

The Parent’s prohibition made it increasingly difficult for [REDACTED] and [REDACTED] to deliver services to the Student because there was no “team approach” to responding the Student’s interfering behaviors (D-11). The Student continued to attend [REDACTED] for third grade (Tr. 56). The Parent testified that [REDACTED] staff would remove the Student from his classroom when he had interfering behaviors and that she did not agree with that approach (Tr. 653-654).

Beginning in or about the spring of 2018, [REDACTED]’ Senior Director, [REDACTED], engaged in multiple conversations with [REDACTED] regarding the Student’s behaviors and the need for a truncated schedule (Tr. 52-56). [REDACTED] advised [REDACTED] that she was “very concerned about [REDACTED]'s significant behaviors, his elopement was frequently concerning, the intensity of the behaviors, the physicality of the behaviors was a significant concern” and the Parent’s reluctance with [REDACTED]’ behavior intervention plan (Tr. 53). [REDACTED] advised [REDACTED] that the Student would be on a truncated scheduled and would have to submit to a neuropsychological evaluation and that the Parent would need to be more transparent about medication changes and be on board with the student’s BIP (Tr. 54-55).

The Parent testified that towards the end of October 2018, [REDACTED] advised her that the Student would not be permitted to attend school for a full day unless they were provided with the Student’s neuropsychological evaluation report (Tr. 654-658). She testified that [REDACTED] requested a neuropsychological evaluation and that the District, the District agreed to pay for that evaluation (Tr. 655). The Parent retained [REDACTED] to conduct the evaluation -- which was not completed until March 2019 (Tr. 657; P-H).

On December 18, 2018, [REDACTED], a teacher at [REDACTED], advised the Parent by e- mail that her son would be dismissed at 2:00 p.m. that day and that “if he has another successful day tomorrow, he will be extended to 2:30 p.m. on Thursday” (P-UU, p. 10). [REDACTED] explained that, on Thursday, the Student would continue to not be allowed to take the bus and would “still need to be picked up until he reaches that goal of normal dismissal time” (id.).

On December 21, 2018, [REDACTED] advised the Parent by e-mail that [REDACTED] would permit her son to return for a full day schedule on January 2, 2019 “pending the completion of his vacation learning plan” (P-UU, p. 13). Additionally, that if the Parent sent back all of the completed vacation worksheets by January 1, 2019, that her son could return for a full day. However, if they were not sent back by that date, he would return to a truncated schedule and would need to be picked up at 2:00 p.m. on January 2, 2019. In her December 21, 2018 e-mail, [REDACTED] also stated: “we are asking that you please keep [the Student’s] medication management consistent over the break as prescribed by his overseeing neurologist that we’ve been in touch with over the past month. Upon his return, if he has three or more days of unsafe behaviors (i.e. elopement, verbal/physical aggression, urination on people or objects, etc.), he will need to return to a truncated schedule unless additional support can be provided to the program to maintain his safety and well-being (id.).

On January 3, 2019, [REDACTED] advised the Parent by email that the Student “becomes very hyperactive” in the afternoons (P-UU, p. 8). He indicated that he would keep track of the Student’s behaviors in the afternoons and let the Parent know how he is doing (id.).

As stated in Parent’s case, by letter dated January 3, 2019 to the District, the Parent’s counsel requested an emergency CSE meeting (D-1). The letter also states that [REDACTED] informed the Parent that her son was being placed on a ‘truncated’ schedule, in which he was required to leave school at 12:00 pm” (id.); [REDACTED] will not provide a guarantee that the student can attend school on a full time basis, as this is dependent upon his behaviors, his safety, and the safety of others” (D-1, p.2). Additionally, that [REDACTED] stated that if the Student is “unresponsive to verbal redirection and engages in aggressive behavior towards themselves or others, Non-violent Crisis Intervention will be used as a last resort” (id., p. 3).

The District and the Parent reached an agreement to settle the Parent’s disagreement with the CSE’s recommendations for the whereby the Student would attend [REDACTED] Child for the remainder of the 2018-2019 school year (from February 2019 through June 2019) and that the District would pay for tuition only through June 2019. The District agreed to do so in an attempt to work with and support the Parent as she expressed that it was a hardship for her to have to pick the Student up early every day at [REDACTED], and that she arranged for her son to be accepted into [REDACTED] Child immediately (Tr. 57-59).

The agreement also provided that [REDACTED] Child would not be deemed the Student’s pendency placement, but that the Student’s last educational placement within the District would continue to serve as the pendency placement (P-JJ, p. 3). The agreement also required the District to pay for [REDACTED]’s neuropsychological evaluation in an amount not to exceed $2,900 (id., p. 5).

On March 18, 2019, one month into the Student’s attendance at [REDACTED] Child, [REDACTED] issued her Comprehensive Psychological Evaluation Report (P-H).

Regarding the “school bus incident”, [REDACTED], testified that she “was very concerned about the student’s safety” and observed that [REDACTED] did not utilize a therapeutic approach to support the Student through this crisis (Tr. 64-70). [REDACTED] asked Dr. [REDACTED], a District School Psychologist, to review the video because she was “significantly concerned about the episode on the bus both with the treatment of the student and with the student’s behaviors (Tr.71-72). Dr. [REDACTED] testified that, upon his review of the video that [REDACTED] Child did not utilize appropriate behavioral supports or therapeutic approaches to dysregulate the Student on the bus (Tr. 209-215, 244).

The District’s counsel asserts that it provided the Parent and her attorney with a meaningful opportunity to participate at each step of the CSE’s deliberations with respect to developing a plan for the Student’s 2019-2020 school year. As per [REDACTED], the Parent and her attorney participated and had their questions and concerns addressed by the CSE during the July 1, 2019 annual CSE meeting (Tr. 76-93) and during the follow-up August 16, 2019 meeting (Tr. 93-101).

During the July 1, 2019 meeting, [REDACTED] reviewed her psychological evaluation report P-H), [REDACTED] Child and the other attendees discussed the May 13, 2019 bus incident and [REDACTED] Child reviewed the Student’s progress during the 2018-2019 school year (Tr. 76, 80-84). The witness testified that although [REDACTED] Child stated during the meeting that the Student made progress, they could not provide any specifics regarding the data, if any, they utilized in order to make that determination (Tr. 82).

[REDACTED] stated that the CSE discussed the District 8:1:2 special class, but the Parent and her attorney rejected it because they believed that the program wasn’t appropriate for the Student (Tr. 84-85).The CSE recommended that [REDACTED] be screened for [REDACTED] [REDACTED] because they believed that was the most appropriate setting for the Student (Tr. 84-87). The Parent was told that she would need to sign a consent form for the District to send a screening packet to [REDACTED] and that, once they reviewed the packet, [REDACTED] would contact the Parent to set up a screening (Tr. 86). The CSE described that the Parent would be able to attend the screening along with a district representative. (id.). Once the screening was complete and if [REDACTED] agreed to accept [REDACTED], the CSE would hold another meeting to finalize the placement recommendations and draft the Student’s IEP (id.).

While the CSE waited for the [REDACTED] screening process to take place, they recommended that the Student enroll in his pendency placement, the District’s 12:1 special class, as an interim placement (Tr. 84-87).

At the conclusion of the July 1, 2019 CSE meeting, the participants agreed to convene another meeting to establish the specifics for the Student’s program in the 12:1 special class if the parties did not reach an agreement with respect to a different placement (Tr. 92-93). That meeting was scheduled for August 16, 2019 (id.).

As [REDACTED] Child had not educated the Student after the July 1, 2019 CSE meeting, the District did not believe that they would add anything new for the CSE or that their presence was required at the follow-up CSE meeting on August 16, 2019 (Tr. 93)

Prong II

On July 1, 2019, the annual review CSE meeting was held. During the meeting, [REDACTED] reviewed her report, [REDACTED] Child and the other attendees discussed the May 13, 2019 bus incident and [REDACTED] Child staff reviewed the Student’s progress during the 2018-2019 school year (Tr. 76, 80-84). Ultimately, the CSE recommended placing the Student in the in-District 12:1 special class while the District sent an inter-[REDACTED] screening packet to [REDACTED] [REDACTED]’ [REDACTED] Elementary (Tr. 84-87). At the conclusion of the July 1, 2019 CSE meeting, the participants agreed to convene another meeting on August 16, 2019 to establish the specifics for the Student’s program in the 12:1 special class if the parties failed to reach an agreement with respect to a different placement (Tr. 92-93).

[REDACTED] believed that as [REDACTED] Child had not educated the Student after the July 1, 2019 CSE meeting and had no new information to provide to the CSE, the District did not believe that their presence was required at the follow-up CSE meeting on August 16, 2019 (Tr. 93). However, the District staff inadvertently invited [REDACTED] Child to the meeting; thereafter, they contacted [REDACTED] Child to advise them that they were not invited to attend the meeting (Tr. 93). The Parent and her attorney refused to continue the CSE meeting without [REDACTED] Child (id.). [REDACTED] met informally with the Parent, the Parent’s attorney and the District’s attorney that same day to discuss the Student’s placement options (id.).

The Parent requested that the CSE recommend [REDACTED] Child and [REDACTED] explained that the CSE could not recommend [REDACTED] Child because it is not a State-approved special education school (Tr. 97). [REDACTED] explained to the Parent that “the district could not, in good conscience, pay for a student to go to a facility [[REDACTED] Child] where we felt that he was not being -- that his behaviors were not being managed appropriately and that he was unsafe” (Tr. 97). [REDACTED] stated that the Parent signed and returned the initial consent form authorizing the District to send a screening packet to [REDACTED] [REDACTED] but refused to sign and return a follow up consent form from [REDACTED] required for the screening (Tr. 87-89, 91-92; D-21). [REDACTED] stated that the parties, through their attorneys, continued to engage in settlement discussions regarding the Student’s 2019-2020 school year throughout the summer and into September 2019 (Tr. 97-101; D-1). These discussions ended, however, when the District received the Parent’s September 10, 2019 correspondence notifying the District that the Parent would be unilaterally placing the Student at [REDACTED] Child for the 2019-2020 school year and would then seek tuition reimbursement through a due process hearing (A-1).

The Student attended [REDACTED] Child during the 2019-2020 school year for fourth grade.

Districts’ counsel argued that [REDACTED] School doesn’t provide a safe environment and fails to implement a therapeutic approach during periods of severe dysregulation; for example, on May 13, 2019 at approximately 2:30 p.m., there was an incident of the school bus.

[REDACTED] testified that the strategy used at [REDACTED] Child does not include threats of expulsion or suspension from school (Tr. 389). She testified that she did not threaten to the Student that he couldn’t come to school, but that the Student initiated the discussion by asking if he would be allowed to return to school (Tr. 389-390). Counsel asserts that is not what happened. [REDACTED] first raised the topic on the bus by telling the Student that she would call his mother and that his mother would not bring him back to school “ever again” (D-35). A few minutes later, she calls the Parent and leaves a voice mail describing the Student’s conduct, asking the Parent to call her and stating that the Student will “quite obviously” not be returning to school the next day (D-35).

As they departed the bus, [REDACTED] told the Student “when you get off the bus, you’re walking calmly into the school? If you don’t, I’m telling you, you will not come back to ever see us again. Alright?” (D-33; D-35). She also previously told the Student that he cannot watch certain movies or play certain games unless he was dressed (D-35).

[REDACTED] testified that following her review of the conduct of [REDACTED] Child’s staff during this bus incident, she “was very concerned about the student’s safety” and observed that [REDACTED] did not utilize a therapeutic approach to support the Student through this crisis (Tr. 64-70). [REDACTED] asked Dr. [REDACTED], a District School Psychologist, to review the video because she was “significantly concerned about the episode on the bus both with the treatment of the student and with the student’s behaviors” (Tr. 71-72).

Dr. [REDACTED] similarly testified that, upon his review of the video, he concluded that it was inappropriate to threaten to call the police and that he did not see any evidence of appropriate behavioral supports or therapeutic approaches to dysregulate the Student on the bus (Tr. 209- 215, 244).

During the July 1, 2019 CSE meeting, Dr. [REDACTED] asked the [REDACTED] Child staff in attendance if they had a behavior intervention plan in place for the Student because [REDACTED] had stated to the Parent on the phone during the bus incident that the Student was displaying behaviors similar to what he displayed often in school, particularly in the afternoons (Tr. 215- 217). In response, [REDACTED] Child described that they did not have an individualized behavior intervention plan in place for the Student because of “the overall philosophy or approach that [REDACTED] Child takes” and the fact that they have a 1:1 teaching model (id.). Dr. [REDACTED] also testified that at the time of the July 1, 2019 CSE meeting, he would not have been comfortable recommending the Student’s continued attendance at [REDACTED] Child because he was “concerned about [the Student]” and the continuation of his pattern of behavior and that, based upon [REDACTED] Child’s presentation of their school at the CSE meeting, “they didn't appear to have the behavioral supports that would be sufficient to meet [the Student’s] needs” and that he was concerned for the Student’s safety if the proper supports were not in place (Tr. 217-218).

The District’s counsel asserts that [REDACTED] provided confused and inconsistent testimony regarding the documents that she produced in response to the District’s subpoena, including the Student’s critical behavior plan, and the various progress reports and report cards prepared by [REDACTED] Child, many of which were undated (Tr. 473-507; 527-540, 560).

Counsel further stated that [REDACTED] recommended in her psychological evaluation report that the Student “requires assignment of a 1:1 aide to accompany him throughout each school day” for the purposes set forth at page 22 of her report (P-H, p. 22; Tr. 823). She states that “it is absolutely critical that the selected aide has an established background in successfully supporting all facets necessary to growth for students with neurodiverse learning profiles” (id.).

[REDACTED], the psychologist who provided the Student with counseling services at [REDACTED] Child from February through June 2019, similarly recommended the following in her June 2019 counseling progress report: “Given the unsafe nature of his behaviors at times, it is necessary for [the Student] to have the support of a paraprofessional or behavioral aide throughout his day to help maintain his safety and to help him maintain emotional regulation and engage in appropriate coping strategies throughout his day so that he will fully benefit from his educational program” (P-CC, p. 8)

When asked about [REDACTED] recommendation for a 1:1 paraprofessional or behavioral aide, [REDACTED] testified that [REDACTED] Child never provided this service for the Student because the District did not offer to pay for it and that they “did not hire a distinct person dedicated to [the Student] because it is not part of our, you know -- supported by the tuition. So, instead, we have all of the staff members participate in working with him” (Tr. 530-538).

Counsel maintained that this decision is in direct conflict with the “Summary of Progress and Proposed Supports for 2019-2020” signed by [REDACTED] and [REDACTED] (DD-1). In this document, [REDACTED] and [REDACTED] write: “A dedicated 1:1 could help [the Student] navigate throughout the day, every day, respond consistently in implementing behavioral rewards, help [the Student] utilize self-regulation skills appropriately, and accompany [the Student] at dismissal time and help him navigate the after-school transition. We strongly recommend and request such a 1:1 support person to be approved for this year” ([REDACTED] also testified: “We're a very small school and our budgets are based on the tuitions that we bring in and our staffing goes accordingly, so we typically don’t take many students that have extreme behaviors. We have a threshold of who we accept. [The Student] is a little bit more than what we expected -- not much more... we assumed or believed that a one-on-one would come along in the package” (Tr. 559).

Additionally, when the 2019-2020 school year began on September 11, 2019, the Parent’s counsel had already ceased settlement discussions with the District and advised that the Parent would enroll the Student at [REDACTED] Child and then seek reimbursement from the District (P-A). At that time, the Parent was aware that there was no “package” from the District and that the Student would only receive a 1:1 aide if [REDACTED] Child hired that individual. Moreover, the District’s resolution agreement for February through June 2019, which provided tuition for the Student’s first experience in a 1:1 teaching environment, did not include reimbursement for a 1:1 aide (P-II).

Counsel stated that the Student’s IEPs have consistently required the use of a BIP and have provided strategies and supports to address these behaviors in order to assist the Student with accessing his education safely and effectively (D-2). Therefore, the program at [REDACTED] Child did not reasonably serve the Student’s needs and was not reasonably calculated to enable the child to receive educational benefits because it failed to develop an appropriate behavior plan to address the Student’s behavior needs as recommended by the Parent’s own private neuropsychologist (P-H, pp. 16-17).

In her June 7, 2019 “Progress Summary,” clinical psychologist [REDACTED] notes that the Student’s difficult behaviors referred to in the “bus incident” also seem to occur most frequently after lunch and towards the end of the day (id.), similar to the Student’s behavior when he was at [REDACTED] (P-UU, p.10).

[REDACTED] also states in her report that in planning for the Student’s 2019-2020 school year, “new behavioral goals will be developed with the entire clinical and educational team in order to target difficult behaviors including dysregulation, task refusal and elopement” (P-ZZ, p. 2, 6). This, however, was never done. The Fall 2019 semester counseling progress report does not include any behavior goals and the Spring 2020 semester counseling progress report lists two “emerging goals,” neither of which address or target the Student’s difficult behaviors of “dysregulation” or “elopement” (P-MM, pp. 6-7; P- LL, pp. 6-8). There is no evidence that any of the long-term goals or short term objectives set forth in [REDACTED] Progress Summary were implemented or measured during the 2019-2020 school year. These goals and objectives were not, for example, included in the 2019-2020 Counseling Progress Reports prepared by psychologist [REDACTED], who replaced [REDACTED] as the Student’s counselor that year (P-LL, pp. 6-7; P-MM, pp. 6-7; P-ZZ, p. 7). [REDACTED] June 2019 Progress Summary do not include measurable goals to reduce or eliminate the Student’s aggressive and unsafe behaviors and are, therefore, inefficient to meet the Student’s individual’s needs (P-ZZ, pp. 4-7).

[REDACTED] testified that [REDACTED] served as the only psychologist for [REDACTED] Child during the 2018-2019 school year and that around November 2019, she left the school and was replaced by [REDACTED] who works for the school part-time and also has a private practice (Tr. 464, 473, 494). She testified that the school does not employ social workers, psychiatrists or any other mental health care providers (Tr. 540).

Finally, [REDACTED] Progress Summary states that the “next scheduled comprehensive treatment plan review” will occur in “September 2019,” but there is no evidence in the record that any plan review took place. The Student’s behavior “plan” and “progress summary” in P-OO and P-ZZ were drafted during the 2019-2020 school year and were never updated, revised or rewritten for any reason, including in accordance with [REDACTED] report or in response to the Student’s changing behaviors during the 2019-2020 school year (Tr. 493-541).

The District maintains that [REDACTED] concludes that the Student’s behaviors include episodes of “extreme impulsivity and dysregulation” that make it “difficult for [the Student] to calm down or return to task” (P-ZZ, p. 2), she fails to conduct or even suggest an FBA and also fails to update the Student’s behavior plan to include a process to individually assess, monitor and measure these behaviors to ensure that they are being managed effectively and reduced over time across all natural environments. Furthermore, she is fully aware of the Student’s behavior history and behaviors at [REDACTED] Child, [REDACTED] testified that [REDACTED] Child does not conduct FBAs because “they’re responded to in a very formal kind of way with a behavior therapist who uses methodologies that are not exactly what we do. We don't do ABA therapy. We don't follow that kind of a model at all” (Tr. 357-358).

[REDACTED]’s lack of knowledge about and refusal to provide an FBA to a Student who has consistently been identified as having significant behavioral needs that impede his ability to learn and for whom a neuropsychologist has recommended an FBA, denied the Student access to a safe and effective learning environment.

In addition, [REDACTED] Child does not take data on the Student’s targeted behaviors of dysregulation, task refusal or elopement; that without this objective data, the Parent cannot establish that the Student’s behaviors have actually improved while at [REDACTED] Child. [REDACTED] Child’s narrative only approach to behavior data (Tr. 349-350, 475)

According to [REDACTED], “a cohesive team of multidisciplinary professionals is needed in order to address the combination of challenges that [REDACTED] presents” (P-H, p. 16). The District maintained that the evidence does not establish that this type of support is provided or available to the Student. In a January 2020 Progress Report, [REDACTED], the student’s counselor, provided: “while we are seeing growth…, we recognize that [the Student] still has difficulty with emotional behavioral regulation. However, with prompting, he is beginning to use his self-regulation skills to make appropriate choices when responding to teacher requests” (P-MM, p. 6). DOE’s counsel stated that the fact that the school psychologist was not aware of the Student’s behaviors in Art, where there was an abrupt shut down, tends to show that there was no team approach to the Student’s behavior needs.

The District’s School Psychologist, Dr. [REDACTED], testified that based upon his review of the Student’s special education records, he concluded that the Psychological Evaluation Report issued by [REDACTED] in March 2019 was missing critical information regarding the Student’s behaviors and educational placements since kindergarten (Tr. 169-199;). This included functional behavior assessments, behavior intervention plans and behavioral data, including the Student’s marked decrease in targeted behaviors while he attended [REDACTED]’ [REDACTED] in Kindergarten as a result of his BIP that year (Tr. 169-207; D-18; D-26).

Dr. [REDACTED] described these omissions to [REDACTED] and the other attendees of the Student’s July 1, 2019 CSE meeting (Tr. 199-200). Dr. [REDACTED] testified that “when we conduct psychological evaluations, you need to put your findings into proper context and looking at patterns of behavior” (Tr. 204). In Dr. [REDACTED]’s opinion, this missing information could have impacted [REDACTED]’s overall conclusions (id.), including her recommendation of a setting similar to [REDACTED] Child.

The District maintained that [REDACTED] agreed with [REDACTED]’s report with respect to the Student’s history, his conclusions may also have been impacted by this missing information (P-M). That, [REDACTED]’s self-serving testimony that he would not have changed his conclusions if he were provided with this information (Tr. 288-328).

Counsel also argued that [REDACTED]’s position on the Board of Directors creates, at a minimum, the appearance of a conflict of interest with respect to her ability to provide a neutral educational placement recommendation for the Student (Tr. 207-208). Even if she did not mention [REDACTED] Child by name in her report, [REDACTED] testified that “our school is very aligned with the way she's outlined [the Student’s] needs, interestingly” (Tr. 404-416).

[REDACTED] testified that she is not involved in the day-to-day operations of the [REDACTED] Child but, as a member of the board of directors and a fiduciary for the school, she does review and vote on issues related to the school’s finances and budget (Tr. 464; 792-794). This role further supports the appearance of a conflict of interest with respect to her ability to provide a neutral evaluation and placement recommendation for a current [REDACTED] Child student.

[REDACTED] recommended that the Student continue occupational therapy in individual and small group formats “given the range of his intervention needs in the motor/fine motor domain” and that the service provider should establish appropriate goals and service parameters (P-H, p. 21). The Student’s IEPs have included occupational therapy every year from Kindergarten through the third grade (D-2, D-3, D-4, D-5, D-6, D-7, D-8, D-9).[REDACTED] Child does not offer occupational therapy services from a certified occupational therapist and did not provide the Student with any occupational therapy service sessions during the 2019-2020 school year (Tr. 523-524; NN-1). [REDACTED] testified that “we do occupational therapy in our way” and that it is offered as a component of the regular gym class taught by the school’s gym instructor (Tr. 524). The Parent did not provide any evidence that [REDACTED] Child developed occupational therapy goals or service parameters for the Student, as recommended by [REDACTED] (P-H, p. 21). [REDACTED] Child also does not provide any physical therapy related services (Tr. 523-524).

The Student’s math instructor provided the following in her 2019-2020 semester two progress report, dated June 26, 2020: “After our school transitioned to online learning, work was consistently emailed, texted and/or sent home and some assignments were completed. It has been difficult to evaluate any continued progress since there has been no access, socially distanced or through the use of a Zoom-type platform” (P-LL, pp. 4-5). Both [REDACTED] and the Parent were unable to provide to consistent testimony regarding how much instruction or services the Student received during this time period (Tr. 542-546; 730- 739). Contrary to the math instructor’s progress report, [REDACTED] and the Parent testified that the math instructor went to the Student’s home and provided instruction outside (id.).

Furthermore, the Parent requests reimbursement and/or payment “for Prompt Therapy services 2x/weekly, and retroactive make-up service from the beginning of the 2019-2020 school year” and reimbursement and/or payment “for specialized reading services 2x/weekly and retroactive make-up service from the beginning of the 2019-2020 school year” (P-B, p. 15). The District asserts that the Parent has failed, however, to produce any evidence that these services were provided to the Student outside of the tuition charged by [REDACTED] Child on a biweekly basis for the 2019-2020 school year. To the contrary, these services were provided at [REDACTED] Child as a part of the Student’s program and there is no basis in the record to believe that the Student also received or required these services outside of what is provided to the Student within the school’s tuition costs.

[REDACTED] testified that the Student’s speech-language services at [REDACTED] Child included PROMPT therapy (Tr. 524) and the Student’s 2019-2020 Semester Two Report Card provides that the Student received PROMPT therapy as a part of his speech-language therapy sessions (P- LL, pp. 5-6) (the Parent did not submit a 2019-2020 Semester One Report Card for speech). The Student’s schedule for the 2019-2020 school year included a “Reading” course five days a week, in addition to his “ELA” course (P-NN). Thus, these requests should be denied.

PRONG III

The CSE recommended that the Student be screened for [REDACTED] [REDACTED] because they believed that was the most appropriate setting for the Student (Tr. 84-87). While the CSE waited for the [REDACTED] screening process to take place, they advised the Parent that they recommended that the Student enroll in the District’s 12:1 special placement (Tr. 84-87). The Parent signed and provided the District with the initial consent form authorizing the District to send a screening packet for [REDACTED].

Counsel for the District and the Parent later discussed, however, that [REDACTED] required an additional consent form authorizing the District to provide a “social history” and “physical” to [REDACTED] (D-21). The District’s counsel explained to the Parent’s counsel in an e-mail on September 6, 2019 that the consent form “supplements the consent provided at the meeting” in August (D-21). The Parent did not sign or return that consent form, however, preventing [REDACTED] from completing its screening process in order to determine if it had an appropriate and available placement for the Student (Tr. 87-89, 91-92; D-21).

The parties discussed the [REDACTED] School, a State-approved special education school during their August 16, 2019 informal meeting (Tr. 99). On July 8, 2019, as a part of the parties’ settlement discussions, the Parent’s attorney advised the District that the Parent would like to request that the District send a screening packet to the [REDACTED] School (P-RR). In response, the District’s counsel provided the Parent’s counsel with the parent application required by [REDACTED] in order to schedule a screening, but the Parent never signed and returned that application (Tr. 99; D-20).

On August 30, 2019, the Parent’s counsel advised the District’s counsel that: “As you know, the parties have been trying to work out an agreement for the student to begin at a private school as of the first day of the 2019-2020 school year. Unless the parties are able to reach an acceptable agreement, my client will assert their right for the student to attend the pendency placement and receive all services in the attached IEP as of the first day of school at the [REDACTED] Union Free School District, which commences on September 4, 2019” (D-1).

Counsel maintained that it is disingenuous for the Parent to allege in the Complaint that she was not contacted by any school since the August 16, 2019 meeting for a potential placement because: (a) her counsel was advised on July 8, 2019 and September 6, 2019 that [REDACTED] and [REDACTED] needed documentation completed in order to proceed with the Student’s screenings, both of which she failed to provide; and (b) she was aware that counsel for both parties were discussing a potential settlement pursuant to which the Student would attend a private school for 2019-2020 (P-A, D-1, p. 1; Tr. 97-101).

The Parent has made her intentions clear that she only wants the Student to attend [REDACTED] Child and was unwilling to explore any other option presented by the District, which supports a finding of the equities in the District’s favor. As late as August 30, 2019, the parties were negotiating an agreement to place the Student at a private school and, on that date, the Parent’s counsel advised the District’s counsel that the Parent would assert her right to implement the Student’s 2016-2017 IEP if an agreement was not reached (D-1). Less than two weeks later, the Parent ceased all negotiations and advised the District that she will place the Student at [REDACTED] Child and pursue a due process hearing for tuition reimbursement.

For these reasons, the District asserts that the Parent has failed to satisfy her burden of establishing that the equities are in her favor and, therefore, the request for tuition reimbursement must be denied.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The purpose behind the Individuals with Disabilities Education Act (IDEA) is to (20 U.S.C. section 1400-1482) ensure that students with disabilities have available to them a FAPE; see Schaffer v. Weast, 126 S. Ct. 528, 531 [2005]; Bd. Of Education v. Rowley 458 S. CT. 176, 179-81 [1982]; Frank G. v. Bd. Of Edu. 459 F. 3d 356 371 92d Cir 2006). A FAPE includes special education and related services designed to meet the student’s unique need provided in conformity with a comprehensive written IEP (20 U.S.C. section 1401 [9] [D] 34 C.F.R. section 300.13 see 210 U.S.C. section 1414 ‘d’; 34 CFR Section 200-347_; The student’s recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. section 1412 [a][5][A]; CFR section 300.13 [a][2][i], 200.1.116 [a][2]; 8 NYCRR 200.6 [a][1]; see Walczak v. Fla Union Free School Dist. 142 F. 3d 119, 132 [2d cir. 1998].

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

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

A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. See, T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 (2d Cir. 2014). The Supreme Court has indicated that “[t]he IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement”. Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. __, 137 S. Ct. 988, 999 (2017). A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction”. Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176 (1982). “The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created.” Endrew F., 137 S. Ct. at 1001). The IEP must be “reasonably calculated to provide some meaningful benefit”. Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see, Endrew F., 137 S. Ct. at 1001 (holding that the IDEA requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances). A school district provides FAPE through an IEP. 20 U.S.C. §1401(14). “The IEP ‘sets out the child’s present educational performance, establishes annual and short-term objectives for improvements in that performance, and describes the specially designed instruction and services that will enable the child to meet those objectives.’” L.O. v. N.Y.C. Dep’t of Educ., 822 F.3d 95, 102-3 (2d Cir. 2016) (quoting R.E. v. N.Y.C. Dep’t of Educ., 694 F.3d 167, 175 (2d Cir. 2012)). An IEP must be “appropriately ambitious” in light of the child’s circumstances. Endrew F. v Douglas County Sch. Dist. RE-1, 137 S Ct 988, 1000 (2017).

The IEP is a comprehensive plan prepared by a child’s “IEP Team,” and must be drafted in compliance with a detailed set of procedures that emphasize collaboration among parents and educators and require careful consideration of the child’s individual circumstances. Endrew F. v Douglas County Sch. Dist. RE-1, 137 S Ct 988, 994 (2017). The IEP is the means by which special education and related services are “tailored to the unique needs” of a particular child. Id. (citing Rowley, 458 U. S., at 181, 102 S. Ct. 3034, 73 L. Ed. 2d 690). As such, the IEP is “the centerpiece of the [IDEA]’s education delivery system for disabled children.” Endrew F. at 994 (citing Honig v. Doe, 484 U. S. 305, 311, 108 S. Ct. 592, 98 L. Ed. 2d 686 (1988)). As noted by the Second Circuit in Reyes v. DOE, “The IDEA further requires that each child’s IEP be reviewed "periodically, but not less frequently than annually," 20 U.S.C. § 1414(d)(4)(A)(i) and be "in effect" "[a]t the beginning of each school year," id. § 1414 (d)(2)(A); see also N.Y. Comp. Codes R. & Regs. tit. 8 § 200.4(f) (requiring that IEP's be "reviewed and, if appropriate, revised, periodically but not less than annually").” Reyes v NY City Dept. of Educ., 760 F3d 211, 220-221 (2d Cir 2014).

Each student’s IEP “shall be reviewed and, if appropriate, revised, periodically but not less than annually to determine if the annual goals for the student are being achieved.” 8 N.Y.C.R.R. § 200.4(f). If appropriate the IEP must be revised, as necessary, to address lack of expected progress, results of any reevaluation, the student’s anticipated needs, or other matters. 8 N.Y.C.R.R. § 200.4(f)(2). Moreover, 8N.Y.C.R.R. § 200.4(e) requires that school districts ensure that each student with a disability has an IEP in effect at the beginning of each school year (emphasis added). The District has the burden of proving whether an IEP is appropriate and provides a FAPE to the student with a disability. N.Y. Educ. Law §4404(1)(C).

PRONG I

As per Parent’s counsel, I find that an IEP was not developed at the beginning or at any time during the 2019-2020 school year. The [REDACTED] on behalf of the District conceded that no IEP was developed as a result of the August 16, 2019 CSE meeting and that [REDACTED] began the 2019-2020 school year without a specific class assignment or IEP. Additionally, [REDACTED] testified that no one from the District observed [REDACTED]'s classroom performance within during the 2018-2019 school year preceding the July 1,2019 CSE meeting to assess his functioning within the school setting. Additionally, [REDACTED], stated that the District failed to discuss [REDACTED]’s goals, or document his present levels of performance, at the July 1, 2019 CSE meeting.

[REDACTED], attended the July 1, 2019 CSE meeting, testified that she was not asked about [REDACTED]’s present levels of performance or recommended goals at that meeting. I also agree that the District’s approach in managing [REDACTED]’s behaviors drastically affected his ability to attend and make progress. I find that the root of the [REDCATED]’s. behaviors as per [REDACTED], a board-certified psychiatrist with specialty in child psychiatry, who evaluated [REDACTED] that he was not willfully oppositional; rather that his behaviors are a result of emotional, psychological, and learning differences that made it difficult for him to perform within his prior learning environments and that his past non-compliance was triggered by his learning frustrations and his disability. This opinion was shared by licensed psychologist [REDACTED], who also evaluated [REDACTED] independently.

[REDACTED] testimony appeared to indicate that the CSE did not have sufficient information to prepare a final IEP for [REDACTED] at the July 1, 2019 CSE meeting because the District had not received progress reporting from [REDACTED] prior to the meeting. However, he also stated that information had in fact been received by the District on July 1, 2019 and that the information was available to the District prior to its August 16, 2019 CSE meeting during which it also failed to develop an IEP.

I agree that [REDACTED] conceded that [REDACTED] personnel, including [REDACTED], were present at the July 1, 2019 CSE meeting and provided information regarding [REDACTED]’s progress at that time. Regardless, [REDACTED] testified that by the August 16, 2019 CSE meeting, [REDACTED] would not have had any educational input to provide concerning [REDACTED] I also agree that [REDACTED] failed to explain why the information “that was so critical for developing an IEP” on July 1, 2019, the [REDACTED] progress reporting, was not sufficient to develop one on August 16, 2019 or why the [REDACTED] input on progress that was so critical for the CSE to develop an IEP on July 1, 2019 was deemed to be so unimportant by August 16, 2019 when the District did not wish to proceed with the CSE meeting so long as [REDACTED] personnel were in attendance.

Once again, I agree with Parent’s counsel and find that [REDACTED]’s reason as to why the District failed to develop an IEP for [REDACTED]’s 2019-2020 school year is without merit and not or credible.

PRONG II

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

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

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

I find that [REDACTED]’s placement at the [REDACTED] Child School during the 2019-2020 school years was in all respects appropriate. Upon admission to [REDACTED] Child, the staff noted J[REDACTED] to be obsessive, perseverative, and shut down. (Tr. at 772-775).

Parent argues that [REDACTED] Child is an educational institution utilizing a research-based approach to instruct children with significant disabilities, such as [REDACTED], diagnosed with Autism Spectrum Disorder. The program is extremely individualized for each student, applying a therapeutic, collaborative problem-solving model. The program allows for on-the-spot interventions and applies a social-thinking curriculum, teaching models of social interaction specific to children with autism. They readily utilize therapeutic interventions, social thinking, and small class settings of no more than 8 students allowing for individualized, direct instruction. (Tr. at 759-760, 906, 921, 924-925).

In any event, it would be noteworthy and ironic for the District to argue that [REDACTED] is not the least restrictive environment for the student, given its own repeated acknowledgments that [REDACTED] requires a more specialized alternative school for students with disabilities, as it did when it requested permission to place him at [REDACTED] facilities on several occasions.

Looking to [REDACTED]’s progress at [REDACTED] Child, although a finding of progress is not required for a determination that a student's unilateral placement is adequate (Scarsdale Union Free Sch. Dist. v. R.C., 2013 WL 563377, at *9-*10 (S.D.N.Y. Feb. 4, 2013), it is nevertheless a factor to consider. Gagliardo, 489 F.3d at 115. To that end, as more amply set forth above, by the close of the 2019-20 school year [REDACTED] had made progress.

Taken together, given [REDACTED]’s above-described needs, the description provided in the hearing record of the [REDACTED] [REDACTED] program and its various supports and his progress while in attendance; I find that the record supports a finding that [REDACTED] Child provided [REDACTED] with specially designed instruction to address his identified needs and thus represents an appropriate placement for the child. Furthermore, for the District to argue that [REDACTED] is not the least restrictive environment for the student, given its own recommendations is not credible.

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

Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.

PRONG III

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

“[E]quitable considerations are relevant in fashioning relief, and the court enjoys broad discretion in so doing. Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required.” Carter, 510 U.S. at 16, 114 S.Ct. 361 (citation omitted); see also A.C., 553 F.3d at 171 (“In fashioning relief, equitable considerations relating to the reasonableness of the action taken by the parents are relevant.” (citation omitted)). Statutory language in the IDEA specifically contemplates that a reimbursement award may be reduced or denied if the parents, inter alia, fail to timely notify the school district of their intent to enroll their child in a private school at public expense; fail to make their child available for an evaluation; or otherwise act unreasonably. See 20 U.S.C. § 1412(a)(10)(C)(iii) A.D., 690 F. Supp. 2d at 215.

Private school tuition may be denied where parents have failed to cooperate with a school district or otherwise frustrated a district’s attempt to offer a FAPE. C.L. v. Scarsdale Union Free School District, 744 F.3d 826, at840 (2d Cir. 2014) (citing Warren G., 190 F.3d 85, 85-86 (3d Cir. 1999)), Forest Grove School Dist. v. T.A., 557 U.S. 230, 247 (2009)). Notably, parents who do not obstruct their school district’s placement process will not be precluded from receiving reimbursement for equitable reasons (see, C.L., 744 F.3d at 840 (equities weighed in favor of the Parents, as they attempted to find an appropriate placement within the school district, attempted to make contact with the recommended placement site and did not enroll the child in the private school until after they were unsuccessful at the CSE meeting); R.B. v. NYC Dept. of Education, 713 F.Supp.2d 235, 248-249 (S.D.N.Y. 2010); N.R. v. NYC Dept. of Education, 2009 WL 874061, *7; (S.D.N.Y. March 31, 2009) see also A.R. v. NYC Dept. of Education, 2013 WL 5312537, *10 (S.D.N.Y. Sept. 23, 2013) (“there was no evidence that Plaintiff ever failed to cooperate with the DOE, declined to visit any proposed placement, or notify the DOE of her dissatisfaction with its proposal. Therefore, the court [found] that a preponderance of the evidence demonstrate[d] Plaintiff’s cooperation with the DOE’s placement process and that equitable considerations weigh[ed] in favor of granting her relief”)). Where the parents “cooperate with the District in its efforts to meet its obligations under the IDEA…their pursuit of private placement [is] not a basis for denying their tuition reimbursement….” (C.L., 744 F.3d at 840).

Even in certain limited circumstances, courts have held that an award directing a district to prospectively pay for the costs of a student's placement in an appropriate but non approved nonpublic school may be proper (see Connors v. Mills, 34 F. Supp. 2d 795, 802, 805-06 [N.D.N.Y. 1998]). However, the court held that the prospective funding at issue constituted the only available remedy that could have provided the student with an appropriate education, as "both the school and the parent agree[d] that the child's unique needs require[d] placement in a private non-approved school and that there [we]re no approved schools that would be appropriate" (id. at 799, 804).

Here, equitable considerations support an order of direct payment to [REDACTED] for the full amount of [REDACTED]’s tuition at [REDACTED] for the 2019-2020 school year.

I agree with [REDACTED]’s psychiatrist and psychologist and find that it is critical to understand that the optimal approach for treating the student is to try and understand where the student's behaviors came from and what was sustaining them. I agree that the nature, frequency and seriousness of the student's aggressive maladaptive behaviors made it appear most likely that they represented his over-learned and habitual responses to relatively innocuous environmental stressors. Despite the questions raised by the evaluations and observations regarding the student's mental health status and the cause of his behavior, the CSE team formulated the student's IEP without the appropriate consideration and in failing to rely on the results of the psychiatric evaluation of the student and failed to further assess the student's psychiatric needs prior to reaching a conclusion regarding the student needs and placement.

I find that it is important to try and understand where the student's behaviors come from and what is sustaining them. I also note that the two occasions described herein clearly established the seriousness of [REDACTED]’s disability. In light of the forgoing, I agree with the parent that the CSE did not have sufficient evaluative data to conclude that BOCE’s was an appropriate placement for the student. The evaluative data and any attendant recommendations of the [REDACTED] Child School were essential to provide the CSE with information for developing an appropriate IEP, FBA and BIP for the student and reaching a decision regarding his educational placement.

I find that the student's social/emotional needs were reported as an area of significant concern in his most recent psychological and neuropsychological evaluations and that the district's recommended placement at BOCE’s is not appropriate. Additionally, that the student's District IEP does not contain sufficient support to address the student's social or emotional issues that may be triggered by such a significant and substantial change in placement. The hearing record established that the student's significant psychiatric, social/emotional issues would be supported at [REDACTED] Child. The testimony of the Parent’s witnesses address [REDACTED]’s identified needs and I find that [REDACTED] has had a “meaningful education for the 2019-2020 school year.

In this case, the [REDACTED] enrollment contract for 2019-2020 stipulates a $94,500.00 tuition amount (Tr. 421), which Parent submits is reasonable as [REDACTED] provides [REDACTED] with a full-time program and related services tailored to his individual needs as detailed, supra. [REDACTED] continued providing services to [REDACTED] even during the COVID-19-related school closures and despite Parent’s serious illnesses and difficulties (Tr. 544-545, 731, 733-737).The Parent testified that she is a single parent who works as a teacher but does not receive outside financial assistance, rents an apartment and does not own a home, and has significant credit card debt, including debt related to her medical illnesses and bills. (Tr. 684-685). The Parent further testified that she has not paid any tuition but knows that she is obligated to pay the full amount owed no matter the outcome here (Tr. 684, 686-687).

Thus, because the testimony and evidence presented satisfies the three-prong Burlington test, the Parent is entitled to full payment of the cost of [REDACTED]’s [REDACTED] tuition by the District.

The District unequivocally failed to satisfy its burden that [REDACTED] was offered a Free Appropriate Public Education as required by Federal and State law. The record provides credible testimony and documentary evidence demonstrating that [REDACTED] is an appropriate program that provides academic, social/emotional, and behavioral supports to [REDACTED], and is uniquely tailored to meet his educational needs. Finally, equitable considerations fully support the Parent’s claims and request for relief.

It is hereby ordered that the DOE make direct payment to [REDACTED] Child Academy pursuant to the Parent's legal entitlement for prospective funding under Connors for the cost of the student's unilateral placement, at the [REDACTED] Child Academy for the 2019-2020 school year in the sum of $94,500.00. This payment shall be made within 30 days of receipt of an invoice in a form satisfactory to the District.

Dated: February 5, 2021

Gary D. Peters, Esq.

GARY D. PETERS

IMPARTIAL HEARING OFFICER

NOTICE OF RIGHT TO APPEAL

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

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

An appealing party's request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for 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.

Impartial Hearing Decision

INTRODUCTION