Pittsford Central School District, Impartial Hearing Decision

This impartial hearing arose from a due process complaint notice filed on behalf of the parents on November 23, 2020 somewhat unclearly seeking reimbursement of tuition expenses paid by the parents to a nonpublic school approved by the State Education Department for the education of students with disabilities during the 2020-2021 school year (Ex. J-1). Following a prehearing conference conducted on February 1, 2021, an amended due process complaint notice was filed on February 22, 2021 clarifying the relief sought (Ex. J-4). A second prehearing conference was conducted on March 16, 2021 and the hearing was held remotely on March 25, 2021, March 26, 2021, April 7, 2021, April 15, 2021, May 10, 2021, May 12, 2021, and May 14, 2021, with most of the hearing sessions lasting well under a day. After review of the evidence and consideration of arguments of counsel, I must find in favor of the parents on all three prongs of the standard set down in Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993) and Sch. Comm. of Burlington v. Dept. of Educ., 471 U.S. 359 (1985) and order tuition reimbursement.

The student, whose disability classification is Autism, was first diagnosed with REDACTED in a neuropsychologist assessment during the summer between fourth and fifth grades (Ex. J-30, p. 9). At the time, REDACTED was a fairly new diagnosis and the licensed clinical psychologist who conducted the neuropsychological assessment had consulted concerning the student’s presentation via e-mail with one of the authors of the seminal work which set forth the official original diagnostic criteria (Ex. J-30, p. 9). The consulting practitioners also had the benefit of more recent research that had fine-tuned how REDACTED presents in children with REDACTED (Ex. J-30, p. 9), with which the student previously had been diagnosed, with confirmation through REDACTED, years earlier (Exhibit J-30, pp. 2, 10). The neuropsychological assessment report stated that the REDACTED on the student’s REDACTED was most likely the result of a REDACTED (Ex. J-30, p. 10). The neuropsychological assessment report stated, “The area of the REDACTED is relevant to the presentation of [the student]’s symptoms. The REDACTED is mostly responsible for error detection, expressive language, visual spatial functions, cognitive processing, and mood modulation. There have been many studies that show that the REDACTED has been connected to REDACTED roles of the such as (spatial awareness), (language), the (spatial memory), the REDACTED (higher-order visual processing) and the REDACTED (complex reasoning, judgement attention, and working memory – “executive functioning”). Therefore, any REDACTED will have an effect on those functions to some degree. It has also been shown that REDACTED can be connected to atypical autistic behaviors (Ex. J-30, p. 10).” In the student’s case, the neuropsychological assessment report stated, “he has shown patterns of behavioral abnormalities since he was very young as well as issues with the impairment of his executive functioning (planning, set-shifting, abstract reasoning, verbal fluency, working memory), often with perseveration, distractibility or inattention; visual-spatial disorganization and impaired visual-spatial memory; and a blunting of affect with outbursts of inappropriate behavior (which can be followed by remorse) …. These patterns correlate with REDACTED at an early age.” (Ex. J-30, p. 10) REDACTED is so rare a condition that I was able to find only one reported special education case concerning a student with REDACTED, In re: Student with a Disability, REDACTED, and that student did not appear to have a disability classification of Autism.

A licensed clinical social worker who had provided individual counseling to the student since September 2019 testified that during the summer of 2020 the parents had sought his opinion about the possibility of the student returning to public school and that he had advised them that his current nonpublic school setting was the best for him (Tr. 804-805). At the time he testified, the licensed clinical social worker was meeting with the student weekly (Tr. 809). He testified that it would not be reasonable to expect the student to be successful transitioning back to public school (Tr. 798). Apart from the what he thought he could glean from looking at the February 20, 2021 IEP (Tr. 797-799), the licensed clinical social worker did not know how the District would support the student (Tr. 828). Nor, he testified, could he think of anything that the District could do to enable a successful transition (Tr. 829-830). I accord the opinion of the licensed clinical psychologist that returning the student to his home school would necessarily set him up for failure (Tr. 798-799) limited weight because it is entirely based on his encounters with the student in individual counseling (Tr. 791). However, the licensed clinical psychologist’s testimony anecdotally underscores how emotionally fragile the student is. The licensed clinical psychologist testified that the student talks about self-harm quite often (Tr. 792). He gave an example of a seemingly ordinary situation that caused the student to have that kind of a response. The student had made a joke in class, some of the other students laughed, and the teacher commented on the joke. Neither the joke nor the teacher’s comment stuck in the licensed clinical psychologist’s memory, but the student immediately took the teacher’s comment to heart and berated himself and couldn’t move past that (Tr. 793). The licensed clinical psychologist testified that the majority of instances in which the student says that he feels like harming himself and that he doesn’t want to live relate to his self-concept of not being a healthy, good person (Tr. 800).

The student is REDACTED. The student’s siblings are typically developing children (Tr. 946). The student’s mother testified that the student struggles to connect and interact with his siblings within his own family and that in many ways that has gotten harder for him as the children have grown older (Tr. 947-948). The mother testified that the student’s abundant environmental challenges affect the entire family to the point that when figuring out major life decisions, the parents have the think about what the student needs to be successful and what they can do to ensure that takes place (Tr. 948). The mother could not think of an overnight trip or a vacation that the family has gone on without an extra set of hands – from extended family members like grandparents, aunts, and uncles (Tr. 950). These excursions are carefully thought out and planned, taking account of the predicated weather and the size of the crowds that can be expected (Tr. 950-951), as are daily activities such as going to the grocery store, going to appointments, and interactions with other families (Tr. 951). For example, if the family is invited to a particular family’s home, the parents consider whether it would be better to invite that family over to their home so that the student could work on navigating the social challenges and feel like he can go to the safe place of his room or take a breather behind the house (Tr. 951). The mother testified that “when there are upsets, when there are setbacks, they are astronomical. They don’t just affect [the student] for an hour. They affect him for days. And they affect our other children for days, too (Tr. 952).” The mother testified, concerning the student’s daily routine in the morning, “You know, getting up on time, being able to move past a worry that - - I mean, from the moment he wakes up he has concerns and questions and worries. And so being able to help him get unstuck and move past, like, literally getting out of bed (Tr. 955).” The mother testified that when there are periods of regression, even though the student has no physical limitations, the student’s social/emotional and cognitive impairments impact his ability to do the physical things he has to do just to get out the door and get on the bus (Tr. 955-956). “So, I mean, his legs work, you know, his arms work; but sometimes he literally is stuck. 20 minutes will have passed. I go down to work with the other kids to, you know - - I’m working, too, to get dressed, to get lunches made, to move on; and, you know, I have to use all my faculties. I don’t hear movement going on there, I don’t hear - - I’ll come back up, and he’s still sitting there rubbing something that soothes him because he is thinking about, you know, what if or that social interaction or what happened, you know, two months ago with a peer in gym class or whatnot (Tr. 956).” The mother’s testimony concerning the difficulty of keeping the student on track while at the same time attending to the needs of three typically developing children in a family setting may be understood in the context of the mother REDACTED, although there are obvious limits to the extent to which the situations are analogous. Almost as if augmenting her testimony about how easily the student could get fixated on something that happened two months earlier, the mother testified that when the student was in seventh grade and had a writing assignment to do, he wrote about recess in fourth grade, apparently still dwelling on unhappy experiences three years earlier (Tr. 993-994). The mother also testified that the student has difficulty filtering out other members of the family talking when he is trying to have an exchange with someone at the family dinner table (Tr. 1053).

The father testified that for the past four or five years he has tried to keep up to date with the burgeoning literature on REDACTED and to learn as much as he could about it (Tr. 1126). Inasmuch as the father REDACTED (Tr. 1112), it may reasonably be assumed that he has been able to read this literature with facility. Apart from that good fortune, his knowledge concerning the student’s underlying medical conditions may be understood to be that of an informed layperson and an involved parent. He does not have a background in special education (Tr. 1113) and has no experiences with REDACTED other than his experiences involving his own son (Tr. 1125). Relating what he sees in the student to the student’s REDACTED diagnosis, the father testified, “So we have periods of [the student] - - we call it getting stuck or completely shut down. And this is one of those things where, you know, it goes beyond all reason. As a rational human being, you tend to rationalize things and go, well, if this happens and this happens, well, that should happen. It shouldn’t lead to a complete meltdown. I don’t understand. Things are blown out of proportion to the point where normal rational thought can’t rationalize it, because it’s just so out of proportion to the stimulus. Like, this particular event, this particular thing, should not have caused a meltdown, and it should not have led to - - such a small issue should not have led to such perseveration and high anxiety. It just doesn’t make sense from a normal rational being standpoint. And these are things we’ve always struggled with. Like, what’s going on? And with REDACTED - - like I said, it helps to filter out and balance certain senses and emotions in his physical environment. So, when you have REDACTED loses the ability to balance and filter out things. So, for example, you know, we’re sitting here right now. There might be a fan in the background blowing. If you pay attention to that fan, you’ll hear it. But if you start having a conversation with somebody else, all of a sudden you don’t hear that fan anymore, because your body - - your REDACTED has filtered out that sound so that you focus your energies on what’s in front of you. With [the student] that’s not the case. He can’t do that. He does not have that ability. And if I’m, you know, stressed out, I can do things to compensate for that. I can go for a run. Other kids may have some, you know, rocking back and forth to try to regulate certain things, and they have the ability to regulate and modulate and kind of accommodate for those things. [The student] does not have that ability. So, for example, if you take three aspects, his physical environment, all the things that he has to deal with there; his emotional environment, I suppose to say; and then his academics, you know, he has to perform in school. If you take these three things, you know, let’s put them - - I don’t know how to say this other than let’s say they’re all on circuits, you know. All three of those circuits are connected to one circuit breaker, one fuse. So, if any one of those three get overloaded, the entire thing blows, and everything shuts down. So, if he’s having trouble balancing and modulating his physical environment and he blows a fuse there, he can’t regulate his emotions or perform academically any longer. Everything shuts down. And when he shuts down or gets stuck, it could take him hours or even overnight to the next day for him to recover (Tr. 1128-1130).” “It’s almost like he never forgets anything. He will perseverate on it to no end. And if he gets - - if he gets put in that situation again, it’s done. Like, nothing even has to really happen; but just the thought of something happening, he shuts down (Tr. 1138).” “And you know, he’s come up to me multiple times saying, ‘I don’t know why God made me this way, I don’t want to be this way, I don’t want to be this way.’ Or even if, - - and here’s an example of how he can’t regulate, even if he wants to. For example, you know, he’ll do something very inappropriate or disrespectful in a meltdown at home. And later on, he’s say, ‘Dad, I don’t want to be this way, but I just can’t help it. I don’t know why I can’t stop.’ You know, it’s almost like he knows what’s going on, but he can’t control it (Tr. 1139-1140).” “Let’s just say when it comes to a safe predictable environment, you’re not necessarily just talking about the teachers and what they do, but you’re also talking about their make-up and how many there are and how they affect. For example, when you talk about, you know, consistent and predictable, at [the non-public school], because it’s a small environment, he might see - - I’m going to make this up now - - [fictitious name of another student]. He might see [the same student] every other single day for the majority of the day, in which case the way he interacts with [the same student], you know, becomes much more predictable based on experience and automation. So when he interacts with [the same student], it’s much less variable, and that variable is - - that stressor is kind of taken out of the situation so that he can concentrate and focus his energy on other things like academics and whatnot. In a larger setting, such as [the public school], he might see [fictitious name of a second other student] for an hour on Tuesday and Thursday. He might see [fictitious name of a third other student] for an hour on Monday and Wednesday. You know, so there’s a lot more inconsistencies there’s a lot more variability, there’s a lot less experience and automation when navigating these socials interactions and much more based on - - and he has to balance all these variable situations real time, you know (Tr. 1143-1144).” The professional experience of the district’s CSE coordinator includes several years of teaching English special education to high school students at a Regents level for students with autism in their autism program (Tr. 31-32). In her testimony, she summarized the student’s needs relating to his disability as follows: “[The student] has executive functioning needs, he has some reading needs, he has social language and pragmatic needs, and he also has some sensory regulation [needs].” “[H]is social-emotional needs are really related to the communication needs with anxiety. He has difficulty with social interactions and coping with managing frustrations and stress from his anxiety.” (Tr. 33) The District’s CSE coordinator testified that knowing what the student’s needs were, the CSE approved programs for the student knowing that the programs could meet the student’s needs (Tr. 47). The CSE recommended a 15:2 special class for all academic content areas other than math (Tr. 47). For math, the CSE recommended integrated co-teaching, because “[the student]’s strength is in math, and he feels really confident about math. So we felt like, as an inclusive opportunity for him, that this would be the best place for him, because he would be able to be challenged in the math content, where he really excels, but also have that supported environment from the special education teacher (Tr. 49).” The District’s CSE coordinator testified that the CSE recommended daily resource room with up to five students with one special education teacher to help the student with his executive functioning skills (Tr. 49-50). She testified that “speech and language therapy was recommended to support his social thinking and the pragmatics. He really needs a lot of help with social communication and inferential thinking, so speech and language therapy was to support him (Tr. 50)” and that “counseling was to support his anxiety and coping with those stressful situations. So, they’re really closely aligned, actually, the counseling and the speech (Tr. 50-51).” She testified further that the parents had expressed concerns that “[the student] would struggle with the larger school environment [in high school in the District]” that would be filled with constant unpredictable social and anxiety challenges that would be overwhelming for [the student] and cause a cascade of challenges both socially and emotionally as well as academically (Tr. 51).” She testified, “So obviously we can’t change the size of the building, so we put a number of things in place to support him within the school setting. Some of the things are, obviously, the OT consultation, which helps with that sensory. We provided speech and counseling to support his anxiety around those unpredictable social situations. The speech was to directly teach him the social-thinking skills for those situations that he might find himself in. We also put in a number of accommodations - - environmental accommodations in place to support him, such as breaks throughout the day for sensory needs. We also put - - in the special classes, that provides him that smaller setting that he requires within most of his day when he’s in those classes (Tr. 62).” The District’s CSE coordinator testified that similar accommodations and supports had worked very well for students with similar needs who attended high school in the District (Tr. 62). She testified that if the student came into a classroom “dysregulated,” the District’s special education teachers had the flexibility to meet the student’s needs “in another way until he’s ready to be part of the instruction (Tr. 64).” In addition to the supports and accommodations that the District’s CSE coordinator testified had worked very well for students with similar needs, the IEP developed by the CSE contained certain accommodations that seem more custom tailored to the student’s needs: “Create a transition plan to systematically increase [the student]’s exposure and comfort level to the [named] school building in order to facilitate a positive transition. Items on the transition plan could include a tour of the building, walking his daily schedule, practice with his locker, identifying key locations in the school (i.e. nurse’s office, counseling office, main office, learning resource office, speech office), and connecting the student to a peer mentor for social support;” “Allow [the student] to transition to his next class a few minutes early so that he does not become anxious in crowded hallways, if needed;” “Provide [the student] with a quiet location when needed for activities that involve large groups of students, such as pep rallies, orientations, assemblies, etc. Make sure that [the student] knows he has access to an alternative location if he becomes anxious about such an event.” (Ex. J-14, pp. 13-14) The District’s CSE coordinator testified that these accommodations too are provided to other students with the same needs (Tr. 105). The CSE also recommended testing accommodations and other classroom accommodations (Ex. J-11, Ex. J-14). One of the latter, Use of Modeling, suggested that the student could use “Superhero imagery – (I can defeat Rocket Brain)” to cope with daily all-day frustration (Ex. J-11, p. 10; Ex. J-14, p. 15).

The special education teacher who would have taught the student in ICT math class that the student would have attended in the District testified that the student would have been a good fit for the class academically and that her role in supporting him in that class would have been “To make sure that he was receiving the explicit instruction as that was what, you know, the testing and the IEP said he needed. To make sure that the gen. ed. teacher was aware not to use sarcasm, to make sure that we were communicating home what had to be done to help him with the executive functioning weaknesses (Tr. 462-463).” The District’s director of special education testified that the District’s reopening plan for the 2020-2021 school year ensured that students were receiving their special education programs and services within the reopening plan, that students with IEPs were prioritized for increased instructional time within the hybrid model, and that the District was in communication with parents concerning any temporary adjustments that had to be made in compliance with social distancing requirements (Tr. 530-531).

Available to the CSE on August 20, 2020 was an occupational therapy assessment that had been conducted on August 12, 2020 (Ex. J-38). Referencing medical literature, the assessment stated that the student’s diagnosis of REDACTED “describes a constellation of symptoms related to difficulty with executive functions, visual spatial skills and affect regulation (Ex. J-38, p. 2).” One of the tests administered to the student was a test of REDACTED. The assessment stated that “the results indicate a significant degree of difficulty with sustaining static balance postures with control. Given the role of the REDACTED, this is an unsurprising finding. It confirms, however, the impact of REDACTED on functional balance performance. Balance deficits are highly correlated with anxiety, particularly in challenging environments (Ex. J-38, p. 4).” In summary, the assessment stated in part, “Decreasing the combined loads of sensory, social, and cognitive challenges … are essential to his wellbeing. Keeping the [school] community small and uniform in ideology …. creates a safe, predictable environment for [the student], in which he can focus on higher cognitive processing and problem solving, rather than worry about change, sensory bombardment, ambiguous expectations or the potential for social failure (Ex. J-38, p. 15).” The director of special education at the nonpublic school testified that the nonpublic school currently has REDACTED students (Tr. 591-592), that its staff all are certified in their content areas and in special education (Tr. 594), that it has had in-person learning five days, six and a half hours a day since the start of the 2020-2021 school year (Tr. 595), that none of its classes are larger than 12:1 (Tr. 596), that the decoding classes are never more than 3:1 and that the comprehension classes are never more than 5:1 (Tr. 603), that its smallness in size enables it to integrate strategies across the school, across grades, and across content areas (Tr. 596), that the faculty and staff pretty much know all the students, so that there’s a good sense of community (Tr. 596), that it is approved by the State Education Department to work with students who have learning disabilities, other health impairments, speech and language impairments and autism (Tr. 596), that with the autism, it’s for youngsters who are on the upper end of the autism spectrum and doesn’t have significant behavioral or communication needs (Tr. 596), that executive functioning support is built into classroom routines (Tr. 604), that at the end of the day there is a period called advisory, where students can get additional help (Tr. 604) and in which there usually are a teacher and a teaching assistant (Tr. 605), that there are two speech/language pathologists on staff whom the school uses as consultants (Tr. 606), that most of the students have a need for consistency but that the student would be at or near the top of the list (Tr. 611-612), that each grade at the school has lunch in a different location so that there is not the din of a school cafeteria (Tr. 612), that the whole environment of the nonpublic school is what the student needs (Tr. 625), and that just the size of the high school in the District would be overwhelming for him (Tr. 634). The director of special education at the nonpublic school testified that when the student is overwhelmed, “He can break down. He can perseverate. He will, you know, seek adult support. And, you know, he can’t move on until he has some support to problem solve. [The student] gets things fixed in his head, and he just gets stuck (Tr. 634).” The student’s social studies teacher at the nonpublic school during the 2019-2020 school year, who also had the student in homeroom and advisory, testified that the student needs to have predictable routines to successfully navigate his day at the nonpublic school (Tr. 843). He testified that common strategies are important as it relates to [the student] “Because they’re predictable. Because once [the student] is comfortable with a strategy, you know, it’s important that it transfers to other settings as well, because he gets overwhelmed by, you know, asking him to perform different things in isolated settings. So if he were to go into a writing class and be taught one strategy and then go to a social studies class and be taught a different writing strategy or approach to topics, it would be very overwhelming for [the student] and that would cause him to shut down. (Tr. 844).” He testified that “we have a little more flexibility in a small setting to identify when [the student] is becoming overwhelmed by not only academic challenges but also the social world that exists around him. He has, you know, internal distractions that exist. You know, he becomes REDACTED on a lot of things socially that are going on around him. Until that need is satisfied, then he has a hard time focusing on the academic demands. He also has just external, you know, sensory sort of input overwhelms. So as teachers, we can identify that with [the student] and can be proactive versus reactive to him in this setting. Knowing what triggers him, trying to alleviate some of those things prior to becoming overwhelming to him and to the point of no return. You know, sometimes he needs to be taken out and spoken to. But, you know, not in a stern sense, but just a problem-solving sense and try to figure out what is triggering him at the time, and then make the attempt to, you know, get him back on course. That is mostly successful, but there are times when the student is unable to, you know, continue to produce when reentered into the classroom. He is a very black and white sort of thinker, you know (Tr. 847-848).” The student’s counselor at the nonpublic school, who works with the student on strategies that just allow him to get through his school day (Tr. 657), testified that the student understands the idea of perspective taking, but that it is very difficult for him to practice it due to internal triggers (Tr. 659-660). “He can have a conversation with an adult, he can have a conversation with a peer, and come away with a completely different meaning or interpretation. Or he can understand the meaning, not misinterpret, but still have an additional belief about it (Tr. 660).” “He’s not just thinking about the interaction many times. He’s now added what he – his own interpretation is now added, which could be the teacher doesn’t like me; the student doesn’t like me; I’m right, they’re wrong; how am I right and they’re wrong? So, all of this is possible and keeps him, you know, in that perseverative state (Tr. 661).” The student’s counselor testified that even with all supports in place, “still there could be an internal trigger from two months ago when he thought somebody said this or something (Tr. 670).”

I think it is reasonably clear from the testimony of the school counselor who gave the parents their tour of the District’s high school building that the extra time afforded the student for transitions between classes would resulted in the student missing possibly crucial class time at the end of the class he was leaving and would not have enabled the student to avoid interactions with other students on his way to his next class, unless the student somehow was able to use the extra time to navigate outside their proximity (Tr. 524-526).

I conclude from all of this that the District has failed to meet its burden of showing that its recommended placement for the student was appropriate. The student’s needs are so severe that they are managed with great difficulty even in the smaller environment of the nonpublic school and even in the still smaller circle of his immediate family. I agree with the parents and their witnesses that the larger environment of the District’s high school would be overwhelming for the student. A smaller environment for the student cannot be consistently carved out within the larger environment as several of the accommodations recommended by the CSE seem to purpose. And what the staff of the District’s high school could do concerning the overwhelmingness of the larger environment necessarily would be more reactive than proactive.

It is well known adage that a picture is worth a thousand words. I think this image that I found on the internet corresponds to the probable outcome of the student trying to follow the CSE’s recommendation to use “Superhero imagery – (I can defeat Rocket Brain)” to cope with daily all-day frustration, which dubiously assumes that the student would have the ability to attempt that. (It matters not that this recommendation originally appeared on the IESP developed by the district of location [Ex. J-24, p. 11]).

The IDEA “requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances.” Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S. Ct. 988 (2017). What the District has shown is not quite that, but rather that the IEP was calculated with the intention of enabling the student to make progress appropriate in light of the student’s circumstances. This falls short of meeting the standard. An IEP that cannot be implemented is an inappropriate IEP. Application of a Child with a Disability, Appeal No. 99-58. Intention is not enough.

I have carefully reviewed the recordings of and transcripts of the June 25, 2020 and August 20, 2020 CSE meetings (as well as the recordings and transcripts of the later CSE meetings that are in evidence) and I do not share the perspective that the District members of the CSE really didn’t value the parents’ contributions and just made a show of understanding the parents’ concerns, which is what the parents expressed in their testimony. Nor do I share the parents’ view that the District members had irrevocably made up their minds in advance about the appropriateness of the placement recommended by the CSE. Rather, the parents and the nonpublic school staff were given ample opportunity to explain why the student’s needs that they had articulated could not be met in District. Having had the benefit of reviewing the totality of the evidence, including both the documentary and testimonial evidence, I understand and agree with the parents’ and the nonpublic school staff’s explanations. However, it is my impression that the “case” made out by the parents and the nonpublic school staff before the CSE was not as strongly made out as the case made out by the parents at this impartial hearing. Given that impression, I find it hard to fault the District members of the CSE for wanting to be optimistic regarding the student’s prospects for success in District.

I also conclude from the foregoing that the parents have met their burden of showing that their unilateral private placement was appropriate for the student. The District proposes a number of reasons why this is not so. The first is that the nonpublic school is overly and unnecessarily restrictive for the student because it is “a segregated private school that does not provide any opportunities for mainstreaming (Ex. IHO-XXV, p. 27).” While there is a "strong statutory preference in favor of 'mainstreaming,'" Phillips v. Board of Educ., 949 F.Supp. 1108, 1114 (S.D.N.Y. 1997), "the presumption in favor of mainstreaming must be weighed against the importance of providing an appropriate education to handicapped students" Briggs v. Board of Educ., 882 F.2d 688, 693 (2d Cir. 1989). The District also argues that the parents failed to demonstrate that the nonpublic school provided an appropriate program for the student because the provision to the student of supplementary services by the school district of location pursuant to an IESP alone shows that “[the nonpublic school] does not provide all of the special education support [the student] requires (emphasis supplied) (Ex IHO-XXV, p. 26).” This argument of the District relies upon an overly broad reading of Application of the Bd. of Ed. of the Lake George Cent. Sch. Dist., Appeal No. 10-049, in which the State Review Officer, after extensive consideration of a student’s program at a nonpublic school, concluded that the only thing that addressed that student’s special education needs was a supplementary service provided pursuant to that district of location’s IESP, Id. at 34. The District further argues that the parents’ contention that the student has made meaningful progress at the nonpublic school is unsupported by “objective data (Ex, IHO-XXV, p. 25).” However, it is undisputed that the student completed 8th grade during the 2019-2020 school year at the nonpublic school during the 2019-2020 school year (Ex. J-8, p. 1), that he achieved grades far higher than passing during the 2019-2020 school year (Ex. J-L, p. 1-2), that he advanced to 9th grade in the 2020-2021 school year (Ex. J-14, p. 1), and that he was achieving grades far higher than passing during the 2020-2021 school year (Ex. P-K). Achieving passing marks and advancing from grade to grade is the sine qua non of educational benefit as defined in Board of Education of the Hendrick Hudson Central School District, Westchester County v. Rowley, 458 U.S. 176 (1982) and Endrew F. v. Douglas County School District Re-1, 137 S.Ct. 988 (2017).

Finally, I find that the equities favor tuition reimbursement. The parents were candid with the CSE regarding their concerns and intentions, provided the CSE with information, facilitated the participation in the CSE process of the staff of the nonpublic school, and toured the District’s high school and asked pertinent questions (Tr. 503, 1023-1029, 1120-1123). The District argues that because the parents accepted IESP services from the school district of location, which were then billed back to the District, it would be inequitable for the parents to receive tuition reimbursement, relying upon Application of a Student with a Disability, Appeal No. 11-020, in which the State Review Officer “agree[d] with the district that the impartial hearing officer correctly determined that the district was not obligated to provide the student a FAPE for the 2010-11 school year because, according to the facts of the case and consistent with the Office of Special Education guidance memorandum dated September 2007, the district ‘”need not make FAPE available”’ to a student who has been parentally placed in a private school in the district of location and who has been evaluated and provided with an IESP by the district of location (footnotes omitted).” Id. at 18. The facts underlying the determinations of the State Review Officer and the impartial hearing officer that the district needn’t have made FAPE available to the student in Application of a Student with a Disability, Appeal No. 11-020 are inapposite to the corresponding facts of this case which is presently before me. In Application of a Student with a Disability, Appeal No. 11-020, one of the parents participated in a CSE subcommittee meeting held in the district of location, as a result of which an IESP was developed. At the time of the June CSE subcommittee meeting held in the district of location, the parent indicated that the student would be attending the nonpublic school for the upcoming school year and that she understood that the district of location would provide her son's related services upon his enrollment there. The State Review Officer credited the testimony of the sub-CSE chairperson at the district of location that the parent had already decided to send the student to the nonpublic school in June 2010 before the CSE in the district of residence even convened. During a subsequent CSE meeting convened in the district of residence, the parents rejected the IEP at the meeting, advised the CSE of the district of residence that they had opted to place the student at the private school, and gave a copy of the IESP to the CSE. “Thus,” wrote the State Review Officer, “it appears that the parent first sought to parentally enroll the student under the State law dual enrollment statute to obtain public school services recommended by the CSE from one district − the district of location − without challenging the IESP as inappropriate and, thereafter, the parents again sought to obtain services again through the CSE of the other public school in this case − the district of residence.” Id. at 19. The September 2007 Office of Special Education guidance memorandum referenced by the State Review Officer stated, in relevant part, “if the parents make clear their intention to keep their child enrolled in the nonpublic... school, the district of residence need not develop or annually review an IEP for the student.” Application of a Student with a Disability, Appeal No. 11-020, pp. 18-19 (“Chapter 378 of the Laws of 2007 - Guidance on Parentally Placed Nonpublic Elementary and Secondary School Students with Disabilities Pursuant to the [IDEA] 2004 and New York State Education Law Section 3602-c”). The reason why, according to the cited Office of Special Education guidance memorandum, a school district need not develop or annually review an IEP if a parent has made clear their intention for their child not to attend a public school in the school in the district has nothing at to do with the issues in this case which is presently before me. Very obviously, it is simply that with so many things that it has to do, a CSE shouldn’t be required to so something that, from the viewpoint of the guidance memorandum, there is no reason for it to do. In the case which is presently before me, the CSE “start[ed] with the IESP from [the nonpublic school]” in the development of the IEPs on June 25, 2020 and on August 20, 2020, according to the testimony of the District’s CSE coordinator (Tr. 45-46), the June 25, 2020 and August 20, 2020 IEPs recommended that special education programs and services and related services and consultation services be provided in the District (Exhibit J-11, pp. 9, 11; Exhibit J-14, pp. 12, 15), and the parents requested that the District place the student at the nonpublic school through the CSE process and notified the District that they would be seeking tuition reimbursement if the District chose not to place the student at the private school on August 10, 2020 (Exhibit XX, pp. 80-81). This sequence of events is straightforward. It is plain that utilizing an IESP that had been developed by the district of location, the District developed an IEP for the student that included related services that had been recommended in the IESP, that the parents did not make clear their intention to reenroll the student in the non-public school until after the District developed the IEP, and that the related services in question, speech language therapy in a small group and psychological counseling services in a small group, thenceforth could not have been provided by the District without the noninvolvement of other students who attended the same nonpublic school that the student attended and without the removal of the student from the nonpublic school, and that the consultation services in question, occupational therapy consultation, could not have been provided on behalf of the student to staff elsewhere than the nonpublic school. (I note the testimony of the District’s CSE coordinator that the only one of the aforementioned services actually being provided to the student by the district of location and actually being billed back to the District is the occupational therapy consultation [Tr. 40-41]. Speech and language therapy is provided to the student by a speech language pathologist in the employ of the nonpublic school [Tr. 739]. An employee of the nonpublic school provides the student with counseling services [Tr. 886].) Payment by the District for the IESP services provided by the district of location entirely accorded with the provisions of Education Law §3602-c and the interpretation of those provisions by the New York Court of Appeals in Bd. of Educ. of Bay Shore Union Free Sch. Dist. v. Thomas K., 14 N.Y.3d 289 (2010) and Bd. of Educ. of

Monroe-Woodbury Cent. Sch. Dist. v. Wieder. 72 N.Y.2d 174 (1988). Education Law §3602-c speaks of special education services being provided to students who attend nonpublic schools on an equitable basis with students who attend public schools, but neither the State Review Officer or the impartial hearing officer understood the scenario recounted in Appeal No. 11-020 in as having to do with the issue of whether or not the equities favored tuition reimbursement. With respect to the latter issue, the focus of the parties was on the more familiar ground of whether or not the parents had cooperated with the CSE in securing an appropriate placement for the student. Application of a Student with a Disability, Appeal No. 11-020 at 14, 15. Entirely in conformity with Education Law §3602-c, the District’s CSE coordinator testified that the reason that the student had an IESP from the District of location is that the student was parentally placed at the nonpublic school, and that had the student been placed by the District at the same nonpublic school, the District would have provided the student with the same special education services pursuant to the District’s IEP, and that it would not have been necessary for the student to have an IESP developed by the CSE of the district of location (Tr. 35-38). This testimony by the District’s CSE coordinator underscores that provision of special education services to the student by the district of location and the billing back for those services to the District is exactly what §3602-c speaks of: the student, who was parentally placed at a nonpublic school is being provided special education services on an equitable basis with a student who attends a public school. The District’s CSE coordinator testified that the District develops IEPs for all of its students who attend nonpublic schools because “We want to keep track of them and make sure we have a program for them should they return. (Tr. 35)” That practice of the District may be farsighted or even prescient, though it exceeds the District’s obligations from the viewpoint of the cited policy memorandum, but it is irrelevant, as are the IEPs for the student which the CSE apparently developed for that purpose during the 2020-2021 school year after the student had begun the 2020-2021 school year in attendance at the nonpublic school.

In the amended due process complaint notice, the parents also alleged that the District’s failures violated Section 504 of the Rehabilitation Act of 1973. Section 504 provides relief from discrimination, whereas the IDEA provides relief from inappropriate educational placement decisions, regardless of discrimination. Brantley v. Independent Sch. Dist., 936 F.Supp. 649, 656 (D. Minn. 1996). "The language of [Section 504] is instructive. It prohibits exclusion, denial of benefits, and discrimination 'solely by reason of'... [disability]." Monahan v. Nebraska, 687 F.2d 1164, 1170 (8th Cir. 1982). "That a court may... come to the conclusion that … a different placement must be required under [the IDEA], is not necessarily the same thing as a holding that a [disabled] child has been discriminated against solely by reason of his or her [disability]." Id. at 1170-71. Therefore, something more than a mere violation of the IDEA is necessary in order to show a violation of Section 504 in the context of educating children with disabilities, i.e., a plaintiff must demonstrate that a school district acted with bad faith or gross misjudgment. See Brantley, 936 F.Supp. at 657 (citing Monahan, 687 F.2d at 1170-71). The parents have not provided evidence that the District acted with bad faith or gross misjudgment with respect to the CSE’s placement recommendation. Rather, the record demonstrates that the CSE did not recognize the severity and delicacy of the student’s condition and that the inappropriateness of the CSE’s placement recommendation was an error in professional judgment. Cf., Brantley, 936 F.Supp. at 657. Accordingly, the parents’ Section 504 claim is not upheld. I also find in favor of the District with respect to other claims raised in the amended due process complaint notice. There is no evidence in the record that the student requires specially designed instruction in physical education. The student only receives specially designed instruction in physical education at the nonpublic school because all students at the nonpublic school receive specially designed instruction in physical education (Tr. 145-148, 694-696). Nor is there any evidence in the record that the student requires specialized transportation. The student is transported to the nonpublic school in a small bus for the practical reason that REDACTED (Tr. 244-245, 287). Nor is there any evidence in the record that the student requires parent counseling and training. If anything, the record demonstrates that the District might benefit from counseling and training from the parents.

Based on the foregoing, it is hereby

ORDERED that the District shall reimburse the parents for tuition at the nonpublic school for the 2020-2021 school year upon presentation of proof of payment.

Dated: July 13, 2021

________________________________________

AARON TURETSKY

Impartial Hearing Officer

PLEASE TAKE NOTICE

The parent and the board of education are hereby advised of the right of any party involved in the hearing to obtain a review of this decision by the State Review Officer (SRO) in accordance with subdivision k of section 200.5 of the Regulations of the Commissioner of Education, 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.

EXHIBITS ENTERED INTO RECORD MARCH 25, 2021^[1]

P-A CSE meeting recording and transcript 6/25/21 15 pp.

P-B School Re-Opening hybrid model plan undated 3 pp.

P-C Requested review packet 8/20/20 21 pp.

P-D CSE meeting recording and transcript 8/20/20 20 pp.

P-E Consent form for reevaluation 8/25/20 1 p.

P-F Counseling report 11/3/20 1 p.

P-G Reevaluation review packet 11/12/20 23 pp.

P-H CSE meeting recording and transcript 11/12/20 28 pp.

P-I Speech-language progress report 1/22/21 2 pp.

P-J CSE meeting recording and transcript 2/4/21 17 pp.

P-K 2020-2021 Q2 report card undated 2 pp.

P-O IESP reevaluation review 1/25/19 21 pp.

P-WW Nonpublic school brochure undated 4 pp.

P-XX E-mails, pp. 013-016, 020-028, 037-039, various 23 pp.

089-095.

D-1 Minutes for program review meeting 2/4/21 4 pp.

D-3 2020-2021 class profile undated 10 pp.

D-4 E-mails 9/21/18 2 pp.

D-5 E-mail 4/13/17 3 pp.

J-1 Due process complaint notice 11/23/20 8 pp.

J-2 Initial appearance letter and procedural 11/24/20 2 pp. safeguards notice

J-3 Response to due process complaint 12/3/20 8 pp.

J-4 Amended due process complaint notice 2/22/21 9 pp.

J-5 Response to amended due process 3/4/21 10 pp. complaint notice.

J-6 10-day notice of unilateral placement 8/10/20 2 pp.

J-7 Response to 10-day notice of unilateral 8/11/20 1 p. placement.

J-8 2019-2020 IEP 6/27/19 13 pp.

J-9 Prior written notice 7/10/19 2 pp.

J-10 Minutes for annual review meeting 6/27/19 2 pp.

J-11 2020-2021 IEP 6/25/20 13 pp.

J-12 Prior written notice 7/6/20 2 pp.

J-13 Minutes for annual review meeting 6/25/20 8 pp.

J-14 2020-2021 IEP 8/20/20 18 pp.

J-15 Prior written notice 8/20/20 3 pp.

J-16 Minutes for requested review meeting 8/20/20 8 pp.

J-17 2020-2021 IEP 11/12/20 20 pp.

J-18 Prior written notice 11/23/20 3 pp.

J-19 Minutes for requested review meeting 11/12/20 3 pp.

J-20 2020-2021 IEP 11/12/20 21 pp.

J-21 Prior written notice 2/10/21 2 pp.

J-22 IESP from district of location 3/29/19 12 pp.

J-24 IESP from district of location 5/8/20 14 pp.

J-25 Social history update 12/10/15 1 p.

J-26 Speech language evaluation 1/2016 5 pp.

J-27 Psychological evaluation 1/26/16 8 pp.

J-28 Educational evaluation 1/29/16 7 pp.

J-29 Occupational therapy evaluation 2/2/16 3 pp.

J-30 Neuropsychological assessment report 8/13/16 16 pp.

J-31 WRMT-III reading test 5/10/17 5 pp.

J-32 WRMT-III reading test 3/13/18 5 pp.

J-33 Speech language evaluation 12/10/18 7 pp.

J-34 Occupational therapy re-evaluation 1/14/19 3 pp.

J-35 WRMT-III reading test 5/3/19 5 pp.

J-36 2019-2020 speech language progress report 2/7/20 2 pp.

J-37 2019-2020 counseling report 4/17/20 1 p.

J-38 Occupational therapy assessment 8/12/20 15 pp.

J-39 Speech language evaluation 9/14/20 5 pp.

J-40 WRMT-III reading test 9/15/20 6 pp.

J-41 Educational re-evaluation 9/16/20 2 pp.

J-42 Psychological evaluation 9/21/20 14 pp.

J-43 Occupational therapy reaction statement 10/18/20 3 pp.

J-44 Neuropsychological assessment 11/15/20 17 pp.

J-45 PWN and consent for reevaluation 9/28/18 3 pp.

J-46 Nonpublic school placement consent form 7/7/20 1 p.

J-47 PST meeting minutes 10/19/20 2 pp.

EXHIBIT ENTERED INTO RECORD MARCH 26, 2021

P-XX E-mails, pp. 055-219 various 165 pp.

EXHIBITS ENTERED INTO RECORD APRIL 7, 2021

D-1 Minutes for program review meeting 2/4/12 4 pp.

D-2 Psycho-social evaluation 1/10/18 2 pp.

D-6 E-mails various 5 pp.

EXHIBITS ENTERED INTO RECORD APRIL 15, 2021

P-L 2019-2020 reports various 8 pp.

EXHIBITS ENTERED INTO RECORD POST HEARING

IHO-I Letter from parents’ attorney 12/8/20 1 p.

IHO-II E-mails from District’s attorney, parents’ 12/10-11/20 4 pp. attorney, and IHO

IHO-III Letter from IHO 12/11/20 1 p.

IHO-IV Letter from IHO 12/24/20 2 pp.

IHO-V E-mails from parents’ attorney, District’s 1/4/21 5 pp. attorney, and IHO with proposed subpoena

IHO-VI Letter from District’s attorney 1/7/21 3 pp.

IHO-VII E-mails from parents’ attorney and District’s 1/8,12/21 4 pp. attorney

IHO-VIII Letter from IHO 1/12/21 1 p.

IHO-IX E-mails from IHO, parents’ attorney, and 1/18,20/21 5 pp.

District’s attorney with revised proposed subpoena

IHO-X Letter from District’s attorney 1/21/21 2 pp.

IHO-XI Letter from IHO with signed subpoena 1/22/21 3 pp.

IHO-XII Letter from IHO 2/2/21 1 p.

IHO-XIII E-mails from parents’ attorney and 2/22-23/21 2 pp.

District’s attorney

IHO-XIV Letter from IHO 2/28/21 1 p.

IHO-XV E-mails from parents’ attorney, District’s 3/1-2/21 4 pp. attorney, and IHO

IHO-XVI E-mails from parents’ attorney, IHO, and 3/9-10/21 4 pp.

District’s attorney

IHO-XVII Letter from IHO 3/10/21 2 pp.

IHO-XVIII E-mails from District’s attorney and parents’ 3/10/21 3 pp. attorney

IHO-XIX Letter from IHO 3/10/21 1 p.

IHO-XX E-mails from District’s attorney and parents’ 3/11/21 3 pp. attorney

IHO-XXI Letter from IHO 3/12/21 1 p.

IHO-XXII Letter from IHO 3/16/21 2 pp.

IHO-XXIII Letter from IHO 3/30/21 2 pp.

IHO-XXIV Letter from IHO 5/14//21 1 p.

IHO-XXV District’s Post-Hearing Brief 6/25/21^[2] 33 pp.

IHO-XXVI Parents’ Post-Hearing Brief 6/29/21 28 pp.

Footnotes

[1] District exhibits are prefaced by “D,” parent exhibits are prefaced by “P,” joint exhibits are prefaced by “J,” and impartial hearing officer exhibits are prefaced by “IHO.”

[2] June 25, 2021 was the date on which the parties’ memoranda of law were received electronically by the impartial hearing officer and was the actual record close date.