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THE UNIVERSITY OF THE STATE OF NEW YORK
THE STATE EDUCATION DEPARTMENT
x In the Matter of the Application of {redacted} a Child with a Disability, by his Parents, for a Due Process Impartial Hearing DECISION AND ORDER
Petitioners, Case No. 550304
-against-
[redacted] CENTRAL SCHOOL DISTRICT,
Respondent.
A Hearing Under the Individuals with Disabilities Education Act, 20 U.S.C. § 1415 and New York State Education Law § 4404.
JUDITH SCHNEIDER, ESQ.
Impartial Hearing Officer
243 West 99 Street (6A)
New York, New York 10025 For Respondent
[redacted] For Petitioners
[redacted]
APPEARANCES
April 30, 2021 For Parent:
[redacted], Attorney
[redacted], Esq., Attorney
[redacted], Esq., Observer
Mother For District:
[redacted], Esq., Attorney
[redacted], Director of Special Services
[redacted], School Psychologist, [redacted]
May 4, 2021 For Parent:
[redacted], Esq., Attorney
[redacted], Esq., Attorney
Father For District:
[redacted], Esq., Attorney
[redacted], Director of Special Services
[redacted], Speech Language Pathologist, [redacted]
[redacted], Occupational Therapist, [redacted]
[redacted], Speech Pathologist, [redacted]
May 7, 2021 For Parent:
[redacted], Attorney
[redacted], Esq., Attorney For District:
[redacted], Esq., Attorney
[redacted], Director of Special Services
[redacted], Special Education Teacher, [redacted]
[redacted], Physical Therapist, [redacted]
May 18, 2021 For Parent:
[redacted], Esq., Attorney
[redacted], Esq., Attorney
[redacted], Law Clerk For District:
[redacted], Esq., Attorney
[redacted], Director of Special Services
[redacted], Speech Language Pathologist, [redacted]
[redacted], Special Education Teacher, [redacted]
[redacted], Assistant Principal, [redacted]
May 21, 2021 For Parent:
[redacted], Esq., Attorney
[redacted], Esq., Attorney
[redacted], Law Clerk
Father
[redacted], Pediatric Neuropsychologist
[redacted], Speech Language Pathologist
[redacted], Speech Language Pathologist For District:
[redacted], Esq., Attorney
[redacted], Director of Special Services
September 15, 2021 For Parent:
[redacted], Esq., Attorney
[redacted], Esq., Attorney
[redacted], Law Clerk For District:
[redacted], Esq., Attorney
[redacted], Director of Special Services
[redacted], Occupational Therapist, [redacted] CSD
[redacted], Physical Therapist, [redacted] CSD
[redacted], School Psychologist, [redacted] CSD
October 1, 2021 For Parent:
[redacted], Esq., Attorney
[redacted], Esq., Attorney
[redacted], Law Clerk For District:
[redacted], Esq., Attorney
[redacted], Director of Special Services
[redacted], Speech Language Pathologist, [redacted] CSD
[redacted], Special Education Teacher, [redacted] CSD
October 7, 2021 For Parent:
[redacted], Attorney
[redacted], Esq., Attorney
[redacted], Law Clerk
[redacted], Education Director, Education Coordinator, [redacted]School
[redacted], Education Coordinator, [redacted] School For District:
[redacted], Esq., Attorney
[redacted], Esq., Attorney
[redacted], Director of Special Services
December 1, 2021 For Parent:
[redacted], Esq., Attorney
[redacted], Esq., Attorney
[redacted], Pediatric Neuropsychologist
[redacted], Occupational Therapist, [redacted] School
[redacted], Director of Education, [redacted] School For District:
[redacted], Esq., Attorney
[redacted], Director of Special Services
December 7, 2021 For Parent:
[redacted], Esq., Attorney
[redacted], Esq., Attorney
[redacted], Law Clerk
Father
Sister For District:
[redacted], Esq., Attorney
[redacted], Director of Special Services
[redacted], Physical Therapist, [redacted] School
December 9, 2021 For Parent:
[redacted], Esq., Attorney
[redacted], Esq., Attorney
[redacted], Law Clerk
Mother For District:
[redacted], Esq., Attorney
[redacted], Director of Special Services
[redacted], Assistant Director of Special Services, [redacted] CSD
[redacted], Occupational Therapist, [redacted] CSD
On various dates between April 30, 2021 and December 9, 2021, I conducted an Impartial Hearing (remotely via Google Play and Zoom) for the [redacted] Central School District (“the district”) pursuant to the Individuals with Disabilities Education Improvement Act (“IDEIA”), 20 U.S.C. §1415, and Article 89 of the Education Law of the State of New York, regarding the special education program of [redacted] (“the student”). [1]
PROCEDURAL HISTORY
The proceeding was initiated at the request of the parents by correspondence dated February 10, 2021 which alleged a denial of a FAPE for the 2020-2021 school year (“SY”) and sought district funding for a unilateral placement at -redacted] (IHRS ). (Ex. 36) [2] I was appointed Impartial Hearing Officer on February 12, 2021. A prehearing conference was conducted on March 19, 2021 and hearing dates were scheduled. Hearings commenced on April 30, 2021. [3]
Subsequently, by correspondence dated July 2, 2021, the parents alleged a denial of a FAPE for the 2021-2022 SY and sought district funding for a unilateral placement at [redacted] for that school year (Case No. 554320). (Ex. 91)
The cases were thereafter consolidated under Case No. 550304. (Ex. I) [4]
The parties moved to extend the compliance date on various occasions in light of settlement discussions, anticipated testimony, the scheduling of witnesses and submission of evidence with regard to the consolidated complaint, consideration of closing statements and issuance of the decision within the permitted time period. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution of this matter. Accordingly, the joint requests for extensions of the compliance dates were granted.
The current compliance date is April 21, 2022. The record closed on March 10, 2022. [5]
POSITIONS OF THE PARTIES
The parents assert that the district failed to provide a FAPE for the 2020-2021 and 2021-2022 SYs by: failing to provide an appropriate program; failing to develop and implement an effective BIP; failing to recommend appropriate related services; failing to provide an appropriate AT device and training; failing to develop attainable, meaningful and measurable goals in all areas of student need; failing to provide transportation in violation of Education Law 4402(4)(d). The parents unilaterally enrolled the student in [redacted] which they claim was appropriate for each school year and for which they seek district funding. The parents claim that equitable considerations do not warrant denial or limitation of that funding. They seek direct payment claiming financial inability to pay the tuition and seek reimbursement. (Ex. II)
The district asserts that it provided a program for each school year which was substantively and procedurally appropriate. The district claims that the parents have not met their burden to establish that [redacted] was appropriate. Further, it claims that equitable considerations support the district and warrant denial of the request for district funding. (Ex. III)
CASES PRESENTED
A list of the documentary evidence submitted by the parties is appended.
The district presented the testimony of
[redacted]: Director of Special Services, Chairperson-student’s IEP meetings;
[redacted]: [redacted] School Psychologist for student’s classes since 2017- 2018 SY;
[redacted]: [redacted] Speech-Language Pathologist, AT evaluator Dec. 2018;
[redacted]: [redacted] Occupational Therapist for student’s 2020-2021 SY (Sept-Feb);
[redacted]: [redacted]Speech-Language Pathologist for student’s 2020-2021 SY (Sept-Feb);
[redacted]: [redacted] Special Education Teacher for student’s 2020- 2021 SY
[redacted]: [redacted] Physical Therapist for student’s 2016-2017, 2017-2018 and 2018-2019 SYs;
[redacted]: [redacted] Speech-Language Pathologist for 2018-2019, 2019-2020 SYs and Summer 2020;
[redacted] [redacted]Special Education Teacher for student’s 2017-2018, 2018-2019 2019-2020 SYs;
[redacted]: [redacted] AP, participant June 2020 CSE review;
[redacted]: District Occupational Therapist-conducted June 2021 OT evaluation;
[redacted]: District Physical Therapist-conducted July 2021 PT evaluation.;
[redacted]; District School Psychologist conducted July2012 Psychoeducational. evaluation;
[redacted]: District Speech-Language Pathologist-conducted July 2021 SLT evaluation;
[redacted]: District Special Education Teacher (retired)-conducted August- September 2021 Educational evaluation;
The parents presented the testimony of:
[redacted]: Neuropsychologist -conducted March 2020 Neuropsychological IEE;
[redacted]: Speech-Language Pathologist- conducted March 2020 AT and SL IEEs;
[redacted]: [redacted]Speech-Language Pathologist for student’s 2021-2022 SY;
[redacted]: [redacted] Education Coordinator, student’s music teacher through August 2021;
[redacted] [redacted] Educational Coordinator;
[redacted]: [redacted]Occupational Therapist for student commencing August 2020, conducted OT evaluation in November 2021:
[redacted]: [redacted] Director of Education;
Student’s Father
Student’s Sister
[redacted]: [redacted] Physical Therapist for student’s 2020-2021 and 2021-2022 SYs;
Student’s Mother
FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. Credibility of Witnesses With regard to the testimony of the witnesses, I find the testimony of each credible in that I conclude that they each testified truthfully in accordance with their recollections and as to the opinions they held.
B. Initial Factual Findings [6] The evidence in this matter shows:
The student is currently about [redacted]years old. (Ex. 1) He is classified as a student with a disability (Multiple Disabilities) and is diagnosed with [redacted] a form of [redacted] in which there is simultaneously increased muscle tone and muscle weakness. He has also been diagnosed with an Intellectual Disability and ADHD-Combined Presentation. (Exs. 1, 28 80, T387-388, 692, 1407) He performs with “severe” delays in all areas of language functioning. (Ex. 20) Glasses and orthotics have been prescribed and provided but the student’s use of them is intermittent. His eligibility as a student with a disability is not in dispute.
The parents’ native language is [redacted] although they speak English and are understood by school staff. The student’s sisters speak English and have communicated with district staff and/or participated in CSE reviews. The student communicates in English. (Ex. 20)
The student received services through Early Intervention (“EI”) from the age of four months. (Ex. 22). Upon entering Kindergarten, he was classified as a student with Multiple Disabilities and received special education services. (Ex. 22)
The student was enrolled in the [redacted] Central School District (“[redacted]”) through the mid 2016-2017 SY (Ex.1, 78, T75). He had been placed by the [redacted] CSE in the [redacted] in an 8:1:2 social communication special class and in the 2016-2017 SY had received speech language therapy (“SLT”) (individual 2x30 minutes per week and small group (3:1) 1x30 minutes per week), occupational therapy (“OT”) (2x30 minutes per week individual) and physical therapy (“PT”) (1x30 minutes per week individual) He also received extended school year (“ESY”) services. (Ex. 1)
He transferred from [redacted] to the district in February 2017. (Ex. 78) His [redacted] placement and program was continued by the district but for an SLT change in that school year to one individual session and 2 small group sessions. (Ex, 1, 2, 78) Commencing for the 2018-2019 SY the CSE increased individual SLT to 2 sessions per week and removed group SLT. (Exs. 78, 3, 9) He remained at [redacted] through February 2021 when he was unilaterally placed by the parents at [redacted]. (Ex. Y)
[redacted] is a center-based program, run by and located within a [redacted] campus. (T74, 535, 978) It is a therapeutic program which serves students with cognitive impairments, developmental disabilities and medical fragility, ages 5 to 21. Enrollees include students with autism and students with physical needs including [redacted]. (T382) All students at [redacted] are alternately assessed and do not participate in a Regents program. (T154, 977) [redacted] houses several special programs in addition to the social communications program in which the student was enrolled. (T153, 155, 979) The facility includes a swimming pool for student use. (T983)
The 8:1:2 social communications program emphasizes working on self-regulation so as to create opportunities to socialize with peer groups while promoting independence. (T155, 165) That program serves students with autism as well as other classifications such as learning disability and multiple disabilities. (T980) Students have access to iPads with various assistive communication technologies, including Proloquo2Go. (T349) Instruction is provided in small groups (2-3) as well as individually. (T155, 980)
[redacted] incorporates ABA and TEACCH methodologies, utilizing structured teaching, direct instruction, the use of visual schedules and a highly organized environment. (T155, 980) It also utilizes across programs Positive Behavioral Intervention Supports (“PBIS”), social-emotional learning behavior intervention strategies and Zones of Regulation methodology. (T99, 158, 168, 980-971) School staff trained to address behavioral issues includes a building administrator, several school psychologists, some teachers, multiple Board Certified Behavior Analysts (“BCBA”) and multiple registered behavior technicians. (“RBTs”). (T1009-1110)
[redacted] staff, including classroom teachers and staff working 1:1 with student, are trained in the use of assistive technology (“AT”), particularly the use of communication devices. (T290, 292-293)
The student’s assigned school psychologist from the 2017-2018 SY through his departure from [redacted], had significant experience and training in ABA (T150-151, 165) and provided training to staff on utilizing reinforcement methodology, administering behavior plans and implementing strategies to promote appropriate classroom behavior. (T157) Staff development took place 1-2x/month (T158). She was also familiar with the FBA process. (T160-163) [redacted] conducts FBAs when necessary because a student has engaged in behaviors at a high rate or frequency or at an intensity that would interfere with the student’s ability to learn on a daily basis. (T163) In such circumstances classroom TAs under the supervision of the psychologist are utilized to assist in gathering FBA data. (T164) However, classroom level strategies to manage behaviors can enable management of behaviors without the need for an FBA. (T164)) The school psychologist routinely assisted the student’s teachers with behavior management, conducted the social skills group (1-2xweek) and informally observed the student’s class daily. (T166, 170)
In 2018 the student was re-evaluated at [redacted]. (Ex. 4-8). His psychological re-evaluation, conducted on February 6, 2018, revealed delays in nonverbal (SS 47), verbal (SS 44) and full-scale cognitive functioning (SS 43), all falling below the 0.1%ile and in the moderately delayed range – the lowest range on the assessment. On the Vineland-3, designed to measure adaptive behavior, the student’s age-equivalent scores ranged between 3 and 5. The student was in the Low range of adaptive functioning, scoring at less than 0.1 %ile (Ex.4, T194-196, 199-201, 1093-1094, 1899-1900) Due to his low cognitive functioning and the need for repetition and reinforcement, goals may need to be re-addressed in subsequent years. (T135)
As a consequence of his medical condition, the student has trouble with motor planning, affecting his ability to properly move muscles in his oral area to produce sounds (Ex. 8, T815). He is capable of verbal utterances and can be understandable to familiar listeners, but not to someone unfamiliar with him. (T355-356, 816-817, 851-852, 991, 1189). However, even to familiar listeners, including his parents and sister, the student sometimes cannot be understood. (T2085-2086, 2128) Nevertheless, he is customarily described as being very communicative and social despite being non-verbal. (T991) His April 18, 2018 Speech Language Evaluation noted that the student had a “large receptive vocabulary” in contrast to his expressive vocabulary and that although in the below average range receptive language was a relative strength. The student at that time during SL therapy had access to an iPad with Proloquo2Go and Speak4Yourself and was reported to “navigate with ease.” It was noted that he needed access to a communication system to help him express himself. (Ex. 8)
An assistive technology evaluation was conducted on October 26, 2018 and December 13, 2018 (“the 2018 AT evaluation”). (Ex. 10) [7] Evaluator [redacted] noted that the student had had access previously to the classroom iPad with the communication Proloquo2Go application and his teacher had observed that when the message he was trying to express was not programmed into the iPad it could lead to frustration and behavior issues. Several communication systems were evaluated including Proloquo2Go and a version of TouchChat HD. [redacted] recommended LAMP Words for Life (“LAMP”) noting that the student demonstrated ability to use it without difficulty including finding vocabulary, formulating sentences and expressing wants. To ensure the best programming for the student’s needs, training for parents and staff was noted to be needed. (Ex. 10) That AAC was not immediately provided, and the record indicates that on March 4, 2019 it was still not available. (Ex. 13)
The CSE convened on April 3, 2019 and continued the student’s prior program but added an augmentative alternative communication (“AAC”) device for use during the school day as well as a speech-language consultation during the summer for continued device programming and a weekly speech-language consultation during the 10 month school year also to address programming issues. (Exs. 14, 78) The student received an iPad with LAMP Words for Life software installed and continued to have access to the classroom iPads. (T845, 962)
The student had exhibited inappropriate behaviors at various times at [redacted]. Different strategies to curb those had been employed as the student advanced through the program (T221, 239) During the 2018-2019 SY, although able to be deescalated and redirected, the student exhibited some behavioral issues and concerns were noted in his April 3, 2019 IEP (for the 2019-2020 SY). (Ex. 14, T133-134, 213, 215, 945-946) During the 2019-2020 SY various in-class behavioral strategies were employed and there were no behavioral issues-significant maladaptive behaviors- during that school year. (T89, 172, 223, 241) The student remained in the social communications program for the 2019-2020 school year. (T898) The 2019-2020 teacher worked on getting students to interact on a daily basis, on social stories, and on turn taking/sharing, and she described 2019-2020 as a “really great year” for the student. (T893-894, 898) In that school year the student attempted to read by producing sounds vocally as well as by use his AAC device. (T909) Related service providers collaborated with the 2019-2020 teacher on a daily basis via the push-in model. [8] (T894, 997).
The CSE convened on October 2, 2019 and continued the student’s program. At the review the parent requested outside testing based upon a belief that the district’s testing was not a fair representation of his abilities and the CSE agreed to reconvene once additional information was provided by the parent. (Ex. E)
On November 21, 2019, the parents filed an impartial hearing request seeking independent educational evaluations (“IEEs”), alleging failure to provide FAPE in the 2017-2018, 2019-2019 and 2019-2020 SYs, and seeking, among other things, compensatory education services and consideration of a non-public school program if warranted by evaluations. (Ex.15) The district agreed to the parents’ request for IEEs. [9]
On January 17, 2020, [redacted], the student’s [redacted] PT since the 2016-2017 SY, recommended that the student “graduate” from PT because she had concluded that he ambulated safely in the school and performed all functions independently and safely and was not limited in his access to any educationally based activities. (Ex. 17) There was, she believed, nothing more that was needed from a PT to access his education. (T694) This was a recommendation for consideration by the CSE. Services continued until the end of the 2019-2020 SY. (T695)
An independent PT evaluation was conducted by [redacted] on February 27, 2020. (Ex. 21) She had been informed by the parent, inaccurately, that PT services had already been discontinued. She was also informed that the student had been diagnosed with ASD at an early age.[10] There is no indication in her report that she was aware of the [redacted] diagnosis. The evaluator relied upon clinical observations, solely the up/down subtest of the Active Performance section of the School Function Assessment (SFA) and the Timed Up and Go (TUG).[11] It was reported, among other things, that the student relied upon the handrail for balance, support and safety as he descends/ascends stairs, that he needed an external support to assist in balance (uses his hand) when pushing off a chair and that he had “poor postural stability” and gait pattern which increased risk of falling/ tripping and poor sitting posture as well as delays in gross motor skills. She recommended individual PT 2x30 and compensatory PT services 1x30 per week for 2 years. (Ex. 21)
An independent neuropsychological evaluation was conducted on March 6, 7 and 21, 2020 by Dr. [redacted] (“the Neuropsychological”) (Ex.22; T1049) Testing included various subtests from the NEPSY-II, the Peabody Picture Vocabulary Test-Fifth Edition (NNVT-5), the Expressive Vocabulary Test- Third Edition (EVT-3), the Kaufman Test of Educational Achievement-Third Edition/Brief (KTEA-3) and the Beery Developmental Test of Visual Motor Integration-Fifth Edition (VMI). Cognitive testing was scheduled but not conducted due to the pandemic. The parents completed a BASC-3. Although a Vineland-3 was completed by the family and considered, Dr. [redacted] did not receive and therefore did not consider any Vineland or BASC assessments from school staff. [12] He did not conduct a school observation and did not communicate with school or district staff. He had no knowledge of the student’s in-school behaviors but for information contained in prior IEPs/reports. (T1908) Dr. [redacted] noted the student’s severe impairments in expressive language and articulation and as well as “relatively strong” receptive language skills and concluded that a diagnosis of Intellectual Disability-Mild was warranted instead of the more severe Intellectual Disability-Moderate. He also diagnosed ADHD-Combined Presentation in addition to [redacted]. He concluded that the student did not meet the profile of a student with Autism Spectrum Disorder (ASD) noting, among other things, his good eye contact and desire for social attention, his affability and sensitivity to moods and family facial expressions, that he did not engage in repetitive or self-stimulatory behavior and that he presented as pleasant, affectionate and gregarious. Dr.[redacted] concluded that the student’s [redacted] placement was not appropriate and made numerous recommendations with regard to placement, program and goals and AT as well as for compensatory services including PCAT and he concluded that a BIP was required. (Ex. 22) [13]
An independent occupational therapy evaluation was conducted on March 20, 2020. (Ex. 18) The evaluator noted that during the testing session the student’s attention was observed to be Excellent, his fluidity of movement was Poor, his effort was Excellent, and his understanding of the activities was Good. The Bruininks-Oseretsky Test of Motor Proficiency (BOT-2) was administered, and the student was Well Below Average (less than 1 % ile) in all composites and for 13 of the 15 areas tested (age equivalents below 4 to 7.2). In the Test of Visual Perceptual Skills 3rd Edition (TVPS-3) his overall standard score was at the 1%ile level (age-equivalent less than 5) with percentiles in all but one subtest ranging from less than 1 to 2%ile. The student was not wearing glasses and the parents reported that he frequently lost or broke them. Sensory functioning was evaluated principally using information from the 2019-2020 teacher. Frequent slouching, slumping and sprawling was reported by the teacher as was being fidgety or disruptive when next to others. With regard to behavior the teacher reported that the student could be described as over-reactive or dramatic, sometimes inflexible, stubborn or uncooperative and occasionally perseverated. The evaluator noted that classroom strategies were utilized and should be continued. The evaluator’s recommendations included 3 OT sessions per week (an increase of 1 session),184 hours of compensatory OT services to enable him to “catch up,” a sensory diet including “heavy work” tasks and cross-body exercises and numerous specific goals. (Ex. 18) [14]
An independent AT evaluation was conducted by [redacted] on March 10, 2020. (Ex. 19) The evaluator stated that contact with [redacted] staff had been attempted but was unsuccessful and therefore document review was substituted for teacher interviews. She noted that the student’s speech production was mostly unintelligible frequently even to his mother. The evaluator had been informed that the student had an iPad with a Proloquo2Go application at home, but he rarely used it and would erase the application. She noted that student was “recently” approved for his own iPad loaded with the LAMP application for in school only. [15] Ms. [redacted] concluded that the student’s receptive language exceeded his expressive language capabilities and observed an incident demonstrating that communication difficulties could result in frustration and behaviors including a temper tantrum. The student was presented with several applications including LAMP, TouchChat108 (“TouchChat”) and Proloquo2Go. The student “seemed to prefer” the TouchChat application and when presented with LAMP and TouchChat consistently chose TouchChat.[16] He was also able to “seamlessly” navigate TouchChat108 which system, the evaluator reported, provided expanded language and speech opportunities for school and home use. Her recommendations included theTouchChat108 application as well as student, parent and staff training to facilitate the student’s access to the recommended devices and applications and to enable Partner Augmented Input (PAI) in which communication partners use the device as often as the student does to support the transfer of target skills. (Ex. 19)
Ms. [redacted] also conducted a Speech and Language evaluation on March 10, 2020. (Ex. 20) She noted that she had had no contact with [redacted] staff. Ms. [redacted] cautioned that results of standardized tests should be interpreted with caution as the student used an AAC to produce most answers and standardized tests are often not normed with a non-verbal population. She reported, however, that standardized testing showed severe deficits in all domains of language functioning and that the student had gross language deficits in all areas.[17] However, based upon, among other things, his ability to program his device, which she characterized as “impressive” she concluded that the student had a higher level of linguistic ability and cognitive functioning than the scores indicated. Her recommendations included 4x weekly 30 minutes SLT sessions, specialized reading instruction, consistent and appropriate use of an AAC system in all customary environments, a bank of 184 hours of compensatory services, and numerous goals. (Ex. 20)
On or about March 13, 2020, in response to the COVID 19 pandemic, in-person instruction across the State was effectively shut down for the balance of the 2019-2020 SY pursuant to the Governor’s Executive Order. See, Executive Order 202.1 et. seq. Initially paperwork packets created by teachers were sent home to students. (T989) Remote instruction commenced on March 23, 2020, ten days after in-person instruction ceased (Ex.24; T.132, 930, 937, 956) Requests for parental consent to remote instruction were repeatedly made including with a consent form in [redacted]. The parents did not provide consent until the end of April 2020 (Exs. 23, 24, 25, 26; T819, 932-933) [18] The student did not begin participating in remote instruction until May 8, 2020. (T936, 957-958) There was therefore an approximately 6 week gap in student instruction. The last day of school was June 17, 2020.
2020-2021 SY
The district’s CSE convened on June 1 and 11, 2020 to review the IEEs and to hold the annual review for the 2020-2021 SY. (Ex.28, T79-80) Participants included the student’s school psychologist, special education teacher, physical therapist, occupational therapist, speech language provider as well as the AT evaluator who had provided the district’s 2018 AT evaluation and a social worker. A translator was also present and the student’s mother, who was present with her daughter, stated that she could understand but would ask for translation services if necessary. (Ex. 28)
At the review, among other things: The IEEs were discussed and [redacted] staff stated that the student presented differently in the classroom (Ex. 28); [redacted] staff reported progress in all areas during the 2019-2020 SY (Ex. 28); The student’s behaviors during the preceding 2019-2020 school year were discussed and staff reported that he had learned coping strategies, was more compliant in the classroom and that here had been no maladaptive behaviors during that school year (Ex. 28, T89) [19] The student’s physical needs were discussed and the [redacted] physical therapist’s recommendation to discontinue PT was adopted (Exs. 28, 17, T90, 693); The student’s speech needs, and his use of LAMP were discussed (Ex. 28); Goals were discussed. (Ex. 28)
At the time of the review, the impact of the pandemic on 2020-2021 SY instruction was unclear. (T833-834, 839, 914, 965) The student’s classification continued to be Multiple Disabilities. His program was not changed but for the addition of PTAC during the summer (Individual, 1xMonthly 30 min.) (Ex. 28) The CSE also permitted the student to take the AAC device home and provided additional support for the AAC (Ex. 28, T91-92, 110) [20] In addition the parent was informed that training and implementation support to provide continuous support with the AT equipment (3xweekly 30 minutes) would be available for them and parental agreement at that time to participate was indicated. (Ex. 28, T91-92, 110)[21] With regard to behaviors, the CSE concluded that the student needed strategies, including positive behavioral interventions, supports and other strategies, to address behaviors that impeded learning but concluded that a behavioral intervention plan (BIP) was not needed. (Ex. 28)
During the summer of 2020, all of [redacted]’s programs were remote. (T298, 634, 985). Accordingly, the student received no in-person instruction whatever between mid-March and September 2020. (T631, 817)
The student’s longtime [redacted] SL provider also provided ESY services in Summer 2020. Her objective was functional communication. (T812-813) During remote instruction with her the student used his AAC device with LAMP without prompting as he had previously with in-person instruction. (T817, 821-824, 861-862) At the end of the summer, the student was using his AAC device to make responses more than five words in length when prompted. (T873-875)
At the September 2020 start of the school year, [redacted] divided [redacted]’s programs into two cohorts, with one attending in-person on Monday and Tuesday, and the other attending Thursday and Friday; Wednesday was a remote day for the entire school (T173-174, 296, 537, 836, 986). In addition, remote instruction was also provided on days when in-person instruction was scheduled but canceled due to a COVID related issues. (T579)
Related services were provided as much as possible in the two-day in-person window of instruction and accordingly services were not evenly distributed throughout the school week (T385) Those services were delivered through a push-in model and the [redacted] 2020-2021 teacher communicated with the student’s related services providers daily. (T561, 634)
The student was in the social communications class (8:1:2) from September 2020 through February 2021, and his attendance was in-person to the extent possible (T535, 540, 542) The class included an RBT, and the prior School Psychologist was again assigned to his class (T1010, 1011) The student did not wear eyeglasses while in class (T558) He did not wear orthotics at [redacted] during that school year. (Ex. 69) The student’s environment had changed most of the other students were unknown to him and there were altered school routines and providers. (T463-465, 537-539, 988) The student had regressed “a lot” in his abilities as a learner after the six month absence of any in-person instruction, as had most [redacted] students, and substantial reteaching was required. (T632, 634, 989-990) [22] Necessary reteaching included school routines (schedules, transitions and following directions) as well as academic areas. (T633,677) Further, in person academic time was further limited as a result of efforts to schedule mandated related services when students were physically present. (T678, 385)
When instruction was delivered remotely, schoolwork was posted on Google Classroom, in both synchronous (live) and asynchronous formats (Ex.49; T544-545). The [redacted] teacher emailed the Google Class instructions to the student’s mother and to another family member on September 8, 2020. (Ex.49; T623, 627). She also informed family members of the need to check the student’s [redacted]-issued email account regularly (T627). On remote instruction days, she scheduled instruction to mirror what the school day would have been if instruction occurred in class and would schedule 1:1 time with students as well as live morning meetings with the class as a whole (T578, 580). She also informed the student’s mother and sister, who had provided her email address, of what to do in the event instruction was shifted from in-person to remote due to a COVID emergency (Ex.54; T625-626). At no point did anyone from the student’s family inform her that should she use a different email address to contact the family (T654)
An i-Ready diagnostic assessment was administered in September 2020 and the student tested at the early kindergarten level.[23] The teacher incorporated principles from the Wilson Reading program into her delivery of reading instruction to the student and worked on phonological awareness, which included identifying and writing beginning sounds and creating words based by syllable (T639). The student continued to work on writing skills (T399)
Although the student’s attendance during remote instruction was good overall, he was not always consistent about logging onto remote sessions on time and sometimes missed his discrete trial 1:1 sessions and occupational therapy despite his family receiving assistance on how to use the Google Classroom platform (Ex.39; T401, 547, 580-582, 585). The [redacted] teacher noted on occasion significant background noises/distractions. Including a television and adult voices, that resulted in student focusing difficulties. (T550-551, 676). She communicated with the student’s sister if she was not able to get a reach the parents, often at the mother’s request or because the parent had not responded to text messages, utilized because of the pandemic. (Ex. 44, T581, 548, 613)
[redacted] moved to voluntary in-person instruction 4 days/week in November 2020, with remote learning on Wednesdays, and moved to five days in-person in April 2021, after the student commenced attendance at [redacted]. (T174, 296-298, 387, 537, 987) During the school year, students and staff adhered to COVID protocols, and students were placed six feet apart and wore masks and group seating was eliminated and physical barriers were put up between desks (T463-465, 537-539, 988). Students left the classroom in that school year only for gym and swimming. (T538)
The student in the 2020-2021 SY had a district provided iPad with LAMP for home and school use as his AAC device and that device was utilized during remote instruction. (T548-549) [24] During the 2020-2021 SY the [redated] AT evaluator, who was a speech language pathologist, provided assistive technology training to current [redacted] staff who worked with the student. (T318, 288) No staff member reported concerns about the student’s use of LAMP or any instances of device abandonment. (T326, 373) The student repeatedly used his AAC device to communicate without prompting and was very fluent with it, including its touchscreen features. (Ex. 20, T367, 373, 551-552, 822, 829, 855) He also had had prior experience using Proloquo2Go. (T349, 365) In the 2020-2021SY he continued to have access to his classroom iPad but that did not have a communication device. (T644) The student also raised his hand to answer questions from the teacher and transitioned with facility between the classroom iPad and his AAC device to answer the question and to work on in-class materials. (T637, 643-644)
During the 2020-2021 SY while at [redacted] the student, who had a strong desire to express himself verbally, continued to attempt to communicate without the use of a device. (T371, 356) Speech/language services, including PROMPT therapy were provided. (T356) It had been concluded that to deny him the opportunity to communicate verbally could lead to frustration and maladaptive behaviors. (T370, 372) However, it was opined by the [related] AT Evaluator/SL pathologist that the student would not ever be able to be intelligible to those who were not familiar with him and for familiars would be intelligible only to a degree. (T356)
During the 2020-2021 SY while at [related] the student received OT services (individual 2x30 minutes) in the classroom. He was reported to be fully engaged during OT (T379-380, 382, 388-389, 392) However, he was not available for remote OT services on days [redacted] switched to remote instruction due to COVID outbreaks although notification to parents had been made. (Ex.50-53, 55, 57-58; T402-405, 413-416)
During the 2020-2021 SY while at [redacted], the student was fully ambulatory and had no issues navigating the school building, though he continued to not wear his glasses and orthotics. (Ex. 69, T398, 412, 984) The student was able to leave his classroom, pushing the door handle without assistance, and use the restroom independently (T390, 394, 396) He was not reported to have fallen or have been at risk for falling but for one incident which was the result of another student running into him. (T735, 761, 666, 2267) He was able to without apparent fatigue fully access the playground which has ramps, see-saws, and climbing apparatus (T391, 2268-2269) The student was able to get off the school bus independently and was able to take off his book bag and unzip and remove his jacket (T394-396) The student also accessed the swimming pool without need of assistance (T391)
During the 2020-2021 SY while at [redacted] the student had two instances of inappropriate behavior. In the first, which occurred early in the school year, the student screamed and vocalized loudly when a staff member attempted to take his iPad so that he could transition to his swim activities. He was able to be redirected back to task through the use of visual prompts, including a first/then board, over a two-to-three-minute period (T176-178, 212-213, 562, 564, 659) In the second instance, on or about November 17, 2020, the student engaged in screaming and physical aggression (T178, 610) He was able to be redirected back to his seat without the need for physical restraint (Ex. 43; T179, 181, 235, 572-573) The student’s behavior was triggered by working with someone unfamiliar to him and not preferred and therefore pre-session pairing to allow to develop familiarity with new staff was introduced thereafter. (T179-180, 572) Between this incident in November and the end of his enrollment at [redacted] at the end of February 2021, the student did not engage in any other behavioral incidents (T179, 181, 396).
The district attempted to convene a November 30, 2020 CSE meeting to discuss the introduction of a calculator to work on an addition and subtraction goal and the parent wanted to add a spelling goal. The meeting was requested by the parent, but the parents refused to attend without their counsel (Ex. 56; T628-629, 647-648). The parents did not respond to the district’s attempt regarding rescheduling. (T97-99, 629) The district determined that the issue could be addressed in the 2020-2021 mandated reevaluation for which consent was initially sought. on January 20, 2021. [25] (T1292)
The student remained enrolled in [redacted] through February 26, 2021 (Ex. 72; T169, 408, 410)
By letter dated January 22, 2021, the parents informed the district that the student had been unilaterally enrolled at [redacted] for the balance of the 2020-2021 SY and sought transportation to enable him to attend. (Ex. VV) A determination as to the similarity of the [redacted] program to [redacted]’s was required to provide that. The district initially and unsuccessfully attempted to set up a site visit, in person or virtual. The required determination was delayed as a consequence of pandemic-related issues which impeded scheduling. (T100-101, 125, 127)
[redacted] The student commenced attendance at [redacted] in March 2021 (T1188, 1720, 1777-1778) An [redacted] attendance records indicates that the student’s first date of attendance was March 15, 2021, but testimony as to the precise start date was not provided and [redacted] staff testified that a start date on or about March 1 seemed correct. (Ex. FF, T2028-2029)
[redacted] is a school primarily for students on the Autism spectrum bur accepts students with related disorders. (Ex. DD, HH, JJ, KK, T1718, 1777, 1996) At the time of the student’s entry its enrollment was at most 50-60 students reaching at most some 60 in the 2021-2022 SY with approximately 80% of its students residential and the balance, including the student, day students. (T1745, 1799, 2024, 2031) The student was initially placed in the [related] program, in which all students in his class were diagnosed with Level 3 autism (the most severe) based upon document review but was moved after about one day to the [related] program in which academics could also be addressed. (T1719-1720, 1779) Evidence as to [related] program maximum class size and actual class size in Spring 2021 is inconsistent but the maximum class size was no more than 8 and enrollment was no more than 6. (Ex. SS, JJ, T1837, 2020) There were 3 adults in the classroom- the teacher, a teaching assistant, the student’s 1:1 and an aide for transitions only. The school had no BCBAs or RBTs on staff from the student’s enrollment through the end of the 2020-2021 SY. (T1810) The student did not use orthotics during the 2020-2021 SY at [redacted]. (T1813)
[redacted] did not use the district’s IEP. (T1705) Rather it creates its own Individualized Transdisciplinary Education Plan (ITEP) each year and that is used for the next year. (T1806) An ITEP was created for this student on May 17, 2021 and was in effect for the 2021-2022 SY. (Ex. OO) The sole testing done by [redacted] staff prior to the creation of the ITEP was an informal reading assessment (typically at [redacted] an informal reading inventory) by the teacher. (T1805) No further assessments are generally done until creation of an ITEP for the following year. (T1806) [26] A student’s progress is recorded in Progress Reports. (Ex. XX) In his ITEP this student was provided with SLT, OT, PT and Mental Health/Counsel. (Ex. OO) The record is unclear with regard to the number of sessions provided at the time of entry and when and if changes were made.
[redacted], on a date not in the record but not immediately upon entrance provided the student with an AAC device with the Proloquo2Go app (“the Talker”) for use in school only. (T1798) During Spring 2021, staff recommended that the parent obtain a device for student use at home and school. [27]
For the first approximately six weeks of attendance the student engaged on substantial maladaptive behaviors including about twice a week hitting teachers and peers. The behaviors diminished to about once per week incidents of physical aggression and thereafter diminished and there were none by the end of that school year. Ms. [redacted], the [redacted] Educational Director attributed the behaviors to communication difficulties and problems of sensory regulation. (T2040) Ms. [redacted], an [redacted] Educational Coordinator, attributed the student’s difficulties to not being able to express himself. She testified that when the student became familiar with the Talker the behaviors went away almost immediately. [28] (T1794) An FBA was not conducted, and behavior plan was not created because staff believed that the factors causing the student’s behaviors could be addressed without a behavior plan. (T2040)
The student was moved to the [redacted] program in July 2021 as a consequence of his age and functioning. (T1787, 1837) A transition period was provided. (T1740) That program is not a diploma program and focuses on achieving independence. (T 1731, Ex. JJ) In that program content area courses are taught by different teachers. (T1789) The student was in a class of 7 with a maximum class size of 8. (Ex. JJ, T2029) The student continued to have a 1:1 paraprofessional. (T1783) In December 2021, the occupational therapist recommended an additional 30 minute OT session due to the student’s tiring and needing breaks during the sessions provided and her conclusion that the extra session would make up for time lost due to that. There were no maladaptive behaviors in the 2021-2022 SY through December 2021 but for an incident in late November 2021 discussed below. No FBA has been conducted and no behavior plan has been created. A BCBA joined the staff in about Sept 2021 and in December 2021 another was added. (T2031) This student does not receive any services from the BCBA who focuses on students receiving ABA. (T1811) There are currently 4-5 RBTs on staff but there is nothing in the record indicating that this student receives services from them. (T2031)
Instruction at [redacted] was entirely in-person, not remote or hybrid, from the student’s entry. (T1748, 1799)
2021-2022 SY CSE Annual Review The district’s initial request for consent for re-evaluation/testing for the 2021-2022 SY was made in January 2021, two additional requests were made, and consent was not received until June 2021. (Ex. 79, T1291) The requested evaluations were thereafter further delayed by the parental schedule which limited testing to Fridays and by backlogs resulting from the pandemic. (T1291, 1293-1294) District evaluations were conducted commencing in June, after the review, and were not completed until September. (Exs. 81, 82, 83, 87)
The CSE convened on June 15, 2021 to develop the student’s 2021-2022 SY program. (Ex. 80) [29] District and [redacted] staff participated as did staff from [redacted] (physical therapist [redacted] and educational coordinator [redacted]) and the student’s mother participated with a family friend. (Ex. 80) A translator was offered by the district which the parent said would be utilized if needed. (Ex. 80, T1289)
At the review, [redacted] staff discussed student progress prior to removal from [redacted] and opined that [redacted] was appropriate for the 2021-2022 SY. (Ex. 80, T1286, 1289, 1340, 1347-1348) [redacted] reported student progress in all areas. The [redacted] ITEP was not provided but the district received a progress report and there was participation by [redacted] staff. [30] Difficulty with the transition and coping with frustrations with resulting behavioral difficulties and inappropriate behaviors including aggression were reported by [redacted] staff. The student was reported to have been using a combination of iPad with the Proloquo2Go application and gestures to communicate and the CSE was told that he was responding well to modeling by the speech therapist on the device. (Ex. 80) [redacted] staff also reported that the student enjoyed certain sensory activities (including using a swing and scooter), that he responded to deep pressure activities, that fine motor activities were being addressed and that the [redacted] OT was conducting ongoing clinical observations and assessment of fine motor/visual motor needs and an assessment of sensory needs. The CSE was informed that PT was provided, and that the physical therapist was conducting ongoing assessments. The CSE noted however that at the time of the review there was insufficient data to determine if the OT and PT supports were beneficial. (Ex. 80) There is no reference to any concerns about tripping/falling having been expressed by [redacted] staff in the report provided by it or at the review although the [redacted] physical therapist was a participant. It was noted by the CSE that [redacted] service recommendations would be finalized at the ITEP meeting. [31] (Ex. 80)
The CSE recommended the same program provided in the previous school year, including AAC training and support. (Ex. 80) Annual goals were developed after consideration of the various reports concerning 2020-2021 SY progress. T1287, 1302-1304, 1308-1309) A social emotional goal to address student behaviors was retained at the request of [redacted] although [redacted] staff opined it was no longer necessary based on his performance at [redacted]. (T1333-1334) Some goals were amended, and others carried over. No disagreement with the goals was expressed by [redacted] staff. (Exs. 28, 80, T1318-1321, 1332) The use of a calculator for double digit addition (which [redacted] had implemented) was added to the IEP. (Ex. 80, T629, 1314-1317, 1335) For this school year as well, the CSE concluded that although the student needed strategies, including positive behavioral interventions, supports and other strategies to address behaviors, a behavioral intervention plan (BIP) was not needed. (Ex. 80 at p. 16) [32]
By letter dated June 18, 2021, the parents informed the district of objections to the June 15, 2021 IEP and their intent to enroll the student at [redacted] for the 2021-2022 SY and seek district funding and transportation. (Ex. WW)
On July 2, 2021, the parents filed an Impartial Hearing Request concerning the 2021-2022 SY ( ). (Ex. 91)
The 2020-2021 and 2021-2022 SY complaints were consolidated under Case No. 550303 by Order dated September 7, 2021. (Ex. I)
Post Review Evaluations The evaluations previously sought by the district were conducted subsequent to the June 2021 review.
The OT evaluation was administered on June 18, 2021. (Ex. 81) The district OT evaluator reported that the student had no difficulties walking to the conference room where testing occurred. (T1356-1357, 1388) He fell in the 0.02%ile on the VMI (receiving a rating of Very Low, the lowest rating possible) and was similarly low on the WRAVMA. (Ex. 82, 1361, 1363) With regard to writing the evaluator reported that when copying from a visual model, the student’s writing was generally legible, but he exhibited poor letter formation and spatial organization. Further, he refused to attempt to copy lower case letters during the testing. As the testing progressed, the student required verbal support to continue working. (Ex. 81)
The PT evaluation was conducted by a district physical therapist on July 23, 2021 in a school setting which included a stairwell, curbs, several different surfaces and at least 500 feet of asphalt. (Ex. 82, T1397-1398) The student was not wearing orthotics or glasses during the evaluation and did not have an iPad. (Ex. 82) No falling or tripping was observed. BOT-2 subtests regarding Upper-Limb Coordination, Balance, Running Speed and Agility and Strength were administered and but for Upper Limb Coordination (for which the student was in Below Average range), the student was in the Well Below Average range (the lowest possible). The evaluator concluded based upon observation and clinical judgment that the student did not require assistance or close supervision for navigation in the school environment notwithstanding a slow pace. (Ex. 82)
The speech language evaluation was conducted by a district speech pathologist on July 16 and 23, 2021. (Ex. 87, T1561) It was noted that his scores should be interpreted with caution because the assessment was not normed for students with devices. (T1565-1566) [33] On both days the student used the AAC that had been provided by the district which was personalized for him. (T1589) The student generally spontaneously used the iPad but when spelling was required, he needed prompting. (Ex. 87, T1567-1568) Although the student was reminded, he could use sign language fewer than five signs were used. The results of the PPVT-5 (0.1%ile- Very Low) and EVT-3 standard scores (less than 0.1%ile- Extremely Low) suggested regression with regard to standard score from March 20, 2020 independent testing. (Compare Ex. 20 and Ex. 87) However, notwithstanding the differences in standard scores the student was in the same range in both tests and the evaluator concluded that his skills appeared to be the same. (T1578-1580, 1593-1594, 1598-1600) [34] The CELF-5 was administered principally to compare with earlier results. (T1583) Those results were all in the Extremely Low range and were consistent with independent evaluation testing done on March 6, 2020. (Ex. 87) Oral and Written Language Scales (OWLS-2) subtests evaluating listening comprehension and Oral Expression resulted in scores in the less than 1%ile (Extremely Low range) for each category. The Test of Pragmatic Language Second Edition (TOPL-2) placed the student in the less than 0.1%ile (Very Poor). Results overall were reported to reveal regression an/or minimal gains in receptive and expressive language skills. (Ex. 87) The evaluator opined that that the student seemed to be performing to the best of his abilities, noting that when speech and cognitive scores are very similar it usually indicates that the student is performing to the best of his capability level in view of his cognitive skills. (T1585-1587, 1610)
The psychoeducational evaluation was conducted by a district school psychologist on July 23 and 30, 2021. (Ex. 83) The student was able to ambulate and sit down independently during the evaluation and had the use of a district issued AAC device which he used to communicate since although he attempted verbalization he could not articulate. [35] (T1461, 1477-1479) The student made unprompted and prompted use of the iPad. (T1479) The evaluator noted that the use of such devices may inhibit the use of standard normative comparison. Stanford-Binet Intelligence Scales, 5th Edition (SB-5) testing resulted in FSIQ of 42 and Nonverbal IQ of 44 (less than 0.1%ile -Moderately Delayed). All SB-3 subtests resulted in the same %ile and classification. The KTEA-3 was administered and in each domains the student was described as in the less than 0.1% ile (Very Low). Standard Scores were all 40, the lowest possible score on this test. With regard to KTEA scores apparently not increasing over time, she stated that factors occurring between the two tests could affect test scores and further, because the test is age normed, there could have been some educational gains. (T1496, 1505) The decline in math concepts and application from 50 to 40 indicated to her that his performance was different on the date of the test. (T1497) Certain MEZURE subtests measuring attention were administered and the student scored in the Average range for visual memory without distractors but when there was any sort of distraction he did significantly worse and his auditory memory without distractors was Very Low (Ex. 83, T1486) Various BASC and Vineland scores were not included because the information from the parent was received subsequent to completion of the report and written consent for [redacted]’s participation had not been provided. (T1472-1473)
An Assistive Technology evaluation was conducted on August 19, 2021 by a contracted agency at the request of the district. (Exs. 85, 86, T2306) LAMP, Proloquo2Go and TouchChat80 were trialed. At the time the student was using Proloquo2Go in [redacted] and the iPad with LAMP had been returned to the district. The evaluators reported quick facility with all applications. It was noted that he appeared to grow increasingly frustrated with the organization of LAMP as he was accustomed to the categorical organization utilized by other apps. The student communicated a “non-preference” for TouchChat. He did not spontaneously activate the voice output of any application but did so with encouragement. The student expressed a clear preference and interest in using Proloquo2Go and that system, among other things, was recommended by the evaluators. The AAC was recommended for both school and home use. (Ex. 86)
An Educational Evaluation was conducted by a retired district special education teacher on August 7 and September 23, 2021. (Ex. 88) Both were masked, and the student used the iPad previously provided to him by [redacted] and his use of the iPad was confident and quick although he used one word utterances. The student was not wearing glasses during part of the evaluation. The evaluator administered the Woodcock-Johnson IV Tests of Achievement Form A (WJIV ACH, the Brigance Inventory of Basic Skills II (2010 Edition) Criterion referenced and also utilized informal measures. She noted that results should be treated with caution as the tests were not normed on students with similar profiles although she believed the results were accurate. The student’s composite reading, math scores and written expressions on standardized norm referenced tests all fell in the Very Low range, less than 0.1%ile (the lowest possible) with no differences/discrepancies among subtests. The criterion based testing (Brigance) was generally consistent with WJ IV testing. Various additional tests were administered to confirm Reading Comprehension, Spelling and Math prior results and the student’s scores were consistent with not a lot of difference between tests. (Ex. 88)
An OT evaluation was conducted on November 4, 2021 by the [redacted] occupational therapist. She reported sensory needs and preferences which had a moderate impact on his performance of daily activities. Her observations included inconsistent posture while standing and sitting, leaning and slouching and that the student was able to maintain an adequate posture for approximately 15-20 seconds and concluded that the student tended to move inefficiently and exhibit poor balance and difficulties with stability. She reported that the student required 2-3 verbal prompts per 30 minute OT session to sit appropriately and was easily distracted by environmental stimuli including during instruction and had fine motor and visual motor delays and difficulty with handwriting. The student was at that time receiving two 30 minute OT sessions per week. (Ex. SS) She administered the Beery VMI and the student’s standard score increased to 83 (13 %ile) from the 45 (.02%ile) achieved in the June 2021 district testing and other scores also increased which she attributed to various additional services he subsequently received at [redacted}. (Exs. SS, 81, T 1954, 1980) The evaluator received her Masters in OT in May 2020 and commenced at [redacted] in July 2020 and began treating the student independently in August 2020. (T1923, 1925) [36] There is no indication in the record that she had any prior experience with students with [redacted]. The OT began discussions with her supervisor to increase OT sessions to three per week to enable more breaks in late November 2021. (T1967) She had no knowledge as to sensory issues displayed at [redacted] and the student’s [redacted] OT prior to her arrival in the 2021-2022 SY arrival did not discuss an increase in OT services with her. (T1976)
C. Relevant Legal Authority Concerning FAPE The legal standard applicable to a request for reimbursement for educational services is well established. Reimbursement is granted if: (1) the services offered by the district are inadequate or inappropriate (Prong 1); (2) the services selected by the parent are appropriate (Prong 2); and (3) equitable considerations support the parent's claim (Prong 3). Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); School Comm. of Burlington v. Department of Educ. of Mass., 471 U.S. 359 (1985). In New York State the district bears the burden of proof with regard to Prong 1 and 3 and the parent bears the burden of proof with regard to Prong 2. Educ. Law 4404[1][c] Prospective payment for tuition may be ordered by an impartial hearing officer when a child would otherwise be denied a free appropriate education and the parent can show financial inability to pay the tuition and then seek reimbursement. Mr. & Mrs. A v. New York City Dep’t of Educ., 769 F. Supp. 2d 403 (S.D. N.Y. 2011). See also, Connors v. Mills, 34 F. Supp 2nd 795 at 806, n.7 (N.D. N.Y. 1998)
Relevant Factors Regarding FAPE Determination
An appropriate educational program begins with an Individualized Education Program (IEP) which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). While school districts are required to comply with all Individuals with Disabilities Education Act procedures, not all procedural errors render an IEP legally inadequate under the IDEA (Grim v. Rhinebeck Cent. Sch. Dist., 346 F. 3d 377, 381 [2d Cir. 2003]) If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a free appropriate public education (FAPE) (J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]). A denial of a FAPE occurs when procedural inadequacies either result in a loss of educational opportunity for the student or seriously infringe on the parents' opportunity to participate in the IEP formulation process (see Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 659 [S.D.N.Y. 2005]; W.A. v. Pascarella, 153 F. Supp. 2d 144, 153 [D. Conn. 2001]), or compromise the development of an appropriate IEP in a way that deprives the student of educational benefits under that IEP (see Arlington Cent. Sch. Dist. v. D.K., 2002 WL 31521158 [S.D.N.Y. 2002]). In evaluating the substantive program developed by the CSE, the Second Circuit has observed that “for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression” (Weixel v. Bd. of Educ., 287 F.3d 138, 151 [2d Cir. 2002], quoting M.S. v. Bd. of Educ., 231 F.3d 96, 103 [2d Cir. 1998]). This progress, however, must be meaningful, i.e., more than mere trivial advancement (Walczak, 142 F.3d at 130). The IDEA, however, does not require school districts to develop IEPs that maximize the potential of a student with a disability (Rowley, 458 U.S. at 197 n.21, 199; see Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132. However, “To meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances….” and “a student offered an educational program providing ‘merely more than de minimis progress’ from year to year can hardly be said to have been offered an education at all.” Endrew F. v. Douglas County School District, 137 S. Ct. 988 (2017), 2017 WL 1066260 (March 22, 2017). The student's recommended program must also be provided in the Least Restrictive Environment (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).
The district is required to provide a “basic floor” of opportunity “specifically designed to meet the [the student’s] unique needs, supported by services that will permit him to benefit from the instruction”. Rowley, 485 U.S. at 188-89. It is not required to remediate all weaknesses created by the student’s disability. Klein Indep. Sch. Dist. v, Hovem, 690 F.3d 390, 397 (5th Cir. 2012), cert. denied, 133 S. Ct. 1600 (2013) (“Nowhere in Rowley is the educational benefit defined exclusively or even primarily in terms of correcting the child’s disability…[although] given the wide range of disabilities covered by the IDEA, remediation may often be a part of an IEP.”) The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379).
Further, the IEP must be evaluated prospectively as of the time it was drafted. R.E. v. New York City Dep’t of Educ.,694 F.3d at 186; see also D.S. v. Bayonne Bd. of Educ., 602 F.3d 553, 564-65 (3d Cir. 2010) (“[A] court should determine the appropriateness of an IEP as of the time it was made.…”) Accordingly, a student’s failure to make progress does not establish that a FAPE was not provided. Parents “cannot later use evidence that their child did not make progress under the IEP in order to show that it was deficient from the outset.” R.E., 694 F.3d at 187 (“[A]n IEP need only be reasonably calculated to enable the child to achieve educational benefits…as of the time it is offered to the student, not at some later date.”)
Carryover of annual goals from a student’s IEP in the prior school year to the next school year’s IEP has been found to be appropriate “[w]here a student’s needs and objectives remain substantially the same; ‘[i] is especially sensible that [an IEP} would reflect continuity with [a student’s] needs and objectives as of [previous years,’” Appeal No. 20-015 and cases cited therein. Moreover, when there are annual goals that appropriately target several of the student’s areas of deficit the failure to include an annual goal to address another area of deficit, without more, does not support a finding that the district failed to offer the student a FAPE. Id “…[T]he achievement of an annual goal "is not the controlling issue; rather, it is [a student's] progress toward achieving the [goal]" C.S. v. Yorktown Cent. Sch. Dist., 2018 WL 1627262, at *21 [S.D.N.Y. Mar. 30, 2018]; see also Gavrity v. New Lebanon Cent. Sch. Dist., 2009 WL 3164435, at *31, *36 [N.D.N.Y. Sept. 29, 2009] [noting the student's progress despite not meeting some goals and explaining that the CSE was obligated to provide the student the opportunity to make meaningful progress in the least restrictive environment]).” Appeal No. 19-116, n. 30
Progress under a prior IEP supports the appropriateness of future IEPs that offer similar programs. H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 528 Fed. Appx. 64, 66-67 (2d Cir. 2013) (summary order). In H.C., the Second Circuit, relying upon test results and testimony from several school district witnesses, held that progress under two prior IEPs supported a finding that the IEP for the school year at issue – which was similar to the two prior IEPs – was appropriate. Id.
D. Parents Claims [37]
Program, Goals and Related Services With regard to parent claims, I note that the program provided was virtually the same as in prior years and that the 2017-2018, 2018-2019 and 2019-2020 SY programs were determined by the SRO to be appropriate. (Ex. 78) As referenced above, progress under a prior IEP supports the appropriateness of a future IEP that offer similar programs. H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 528 Fed. Appx. 64, 66-67 (2d Cir. 2013) (summary order).
In this matter, the evidence shows that the CSE considered the independent evaluations as well as [redacted] staff opinions that the evaluations did not reflect what they observed in class. (Ex. 28, T80-81, 198, 233, 699, 758, 826, 906-907, 917, 1002) It is well established that the CSE is not obligated to adopt the findings and recommendations of IEEs. [38]
It is well established that the appropriateness of an IEP is to be determined as of the time it is made and the information that was available to the CSE at that time not as later emerged. R.E. By the time of development of the June 2020 IEP, and as the SRO found, the student had made progress and met benchmarks in each of his 2019-2020 goals and had achieved all his reading, speech/language, social/emotional/behavior and fine motor goals. (Exs. 78, 31) This was the case notwithstanding that he received no instruction whatever for an approximately 6 week period upon the commencement of the pandemic shutdown and had received only remote instruction for the remaining approximately 6 weeks of that school year. Annual goals were developed based upon the student’s progress during the 2019-2020 SY. (T908-912, 949-950)
The future of the pandemic and the extent of its effect on education for all children- disabled and not disabled-was at that time unknown. Ultimately the entirety of the 2020-2021 SY at [redacted] took place during the pandemic and the student received only entirely or partial remote instruction during all attendance at [redacted] but/for some subjects/periods when he not made available for remote instruction and therefore missed instruction entirely.
It is undisputed that regression was observed when the student commenced in September 2020. (T952, 954, 965) This was not unique to this student but rather was generally observed. (T876) For example, prior to the start of the pandemic this student was able to perform double digit addition and subtraction but subsequently could not. (Ex. 31, T948-949) I conclude the goals addressed the student’s areas of need as known at the time of their development and parental objections do not warrant a finding of a denial of FAPE. I note with regard to that finding that notwithstanding pandemic related circumstances affecting the delivery and reception of instruction the student had achieved all social/emotional/behavior goals (including a goal directed to attention), a motor skill goal and an ADL goal and had progressed in all others by the end of his February 2021 removal from [redacted]. (Ex. 46) I find credible the testimony that under normal circumstances the goals would have been achievable and note that the student was removed from [redacted] before 2020-2021 achievement there could be fully determined. w (T833, 842-843, 914-915) Further, I find that the repetition of certain goals for the 2021-2022 SY is not a basis for a finding of denial of FAPE for the 2202-2021 SY. The student had made progress in those areas with regard to those goals during the prior school year notwithstanding adverse circumstances. Achievement of all goals is not required to establish that FAPE was provided. This is particularly the case here where it is undisputed that the student has very substantial deficits. [39] Parents assert specific objections the speech (AT) goals claiming that one, addressing storytelling, was too advanced and vague and the other, addressing navigation was already mastered. However, I note the credible testimony that the student had mastered answering questions concerning a story and that goal was to provide a framework for him to retell it written to be measurable. (T838-839) In the circumstances here I do not consider the goal impermissibly vague notwithstanding that its interpretation could be differently determined. With regard to the goal concerning device navigation, the evidence is persuasive that the goal was to enable more thoughtful use and to be measurable. Further, I conclude that that the deficiencies claimed, even if accurate, do not provide a basis for a conclusion that the IEP was defective, and FAPE was not provided.
With regard to 2021-2022 SY goals developed by the CSE in June 2021, prior to the receipt of evaluations conducted from June through September 2021, the parent asserts not only that some were repeated in their entirety from the prior year (discussed above) but also that expectations with regard to math goals were lowered by the addition of a calculator. I note however, that the CSE had attempted to conduct a review with regard to making that alteration in November 2020, but the parents did not respond. (Ex. 56, T648-629, 647-648) The change was to avoid the effect of student lack of success by providing an interim step. (T629) Reconsideration of goals upon evaluation of the student’s situation and needs is desirable and the parents have not alleged that the goal as now written is appropriate.
The parents, in support of claims that the program provided was not appropriate, assert that regression was demonstrated in the post June 2021 evaluations in which the student received lower scores than previously (March 2020) in Peabody testing. (Exs. 87, 23) Clearly the CSE did not have knowledge of these evaluations at the time of the review. However, with regard to their substance I conclude that the student’s scores were very low and with regard to where he placed in comparison to other students, the scores were nearly the same. (T1906-1907) Further, with regard to performance on norm referenced tests generally: it was asserted by various evaluators that results might be influenced by the student’s use of an AAC; the student might make gains in a period that would not be sufficient to decrease the gap between the student and a typical non-disabled peer although he could still be developing. (T1661) Indeed, the 2021 evaluator concluded that there was no discrepancy between the student’s cognitive functioning and academic achievement. (T1649, 1652-1653) I give no weight to differences in grade equivalents and note there was no evidence as to the factors utilized in determining them. (T1897)
With regard to the student’s program the parents also claim there was no basis for the disparity between the SLT and OT recommended for the 10 month school year and the more limited services provided during the summer as Extended School Year (ESY) services. The parents did not assert claims concerning the more limited ESY services in either of the complaints at issue. Further, I conclude that there is insufficient basis for a conclusion that the district waived that requirement. [40] Therefore, I do not address that issue except to note that: The program was the same in prior years but for a change in the SLT group from 3 to 5 for the 2019-2020 SY) and the SRO concluded that the program for those years was appropriate; Provision of ESY to limit regression beyond what is typically expected during the summer months and there is no claim or evidence that the student regressed notwithstanding the services provided. (T835).
Parent claims concerning the absence of PT are discussed below.
Physical Therapy
Parents assert a denial of FAPE as a consequence of the district’s determination not to provide Physical Therapy in the student’s 2020-2021 and 2021-2022 school years. The student had received one 30 minute session of PT weekly in his 2019-2020 program and in prior educational programs. [41] It is undisputed that the student had and continues to have an irregular gait and other physical difficulties associated with his [redacted] diagnosis. (Ex. 28, T702)
During the 2019-2020 SY an evaluation was conducted by the student’s longtime physical therapist. (T794) She has substantial and varied experience in that field including in clinical and educational settings and that experience includes work with persons with [redacted]. (T685-690, 729) Physical therapy in a school looks to the functional level in the school to determine if the student can achieve what is needed to access education. (T761) The therapist concluded that the student navigated safely in [redacted] and performed all functions independently and safely and was not limited in his access to any educationally based activities. (Exs. 17, 69, T695) [42] It is noteworthy that [redacted] has a very varied physical environment, both within the building and in play and recreational areas outside which presented potential mobility challenges and the student successfully navigated them (T559-560, 704-706, 720-721, 727-728, 925, 983) Further, he did not need assistance with the school bus, on school steps or navigating the classroom or in a variety of community activities (T553-554, 704-706, 926-927) There were no reports of any falls at [redacted] in the 2019-2020 SY and the student demonstrated appropriate protective reactions. (T733-735,761) Although slouching was observed at [redacted], it was effectively addressed through reminders and was attributed by [redacted] staff to low tone which usually remained the same and therefore not appropriate to address through PT. (T731-732) With regard to fatigue, while at [redacted] the student demonstrated the ability to participate in a variety of activities requiring physical action in the school and on school grounds and fatigue was not reported or observed. (T2265-2267)
The [redacted] physical therapist concluded there was nothing more that was needed from a physical therapist to enable the student to appropriately access his education and she recommended that that service be discontinued at the end of the 2019-2020 SY. [43] The CSE adopted that recommendation after consideration which included review of the IEE concerning PT at the June 2020 review. (Ex. 28) With regard to the weight to be given that IEE, I note: there is no indication that the independent evaluator had consulted with or obtained information from [redacted] staff or had sought to do so or to observe the student; there is no indication that the evaluator took into account the [redacted] diagnosis; the evaluation material utilized for that IEE was limited; the student did not use orthotics during the IEE but did use them at school that school year; [redacted] staff believed the student performed better than reported in the IEE in certain areas of testing.[44] (Ex. 21, T699, 701, 712-713, 722) I find no basis for a conclusion that the absence of a PT recommendation for the 2020-2021 SY constituted a denial of FAPE. With regard to parent claims that the student had not demonstrated achievement of 2019-2020 PT goals, I note that the [redacted] PT credibly testified that although adjustments were made in view the circumstances of remote instruction due to the pandemic, the goals were substantially achieved. (T704-706, T763)
With regard to the 2021-2022 school year, subsequent to the development of the IEP, I am persuaded that but for a “fall” occasioned by another student running into him there were no falls at [redacted]. (T666, 733, 762) I note the testimony of various staff members as well as information provided to the [redacted] PT upon her inquiry. Further, I note that there is no parental testimony that such occurred at [redacted]. At the June 2020 review the CSE was informed that that [redacted] was providing that service at that time, that assessments were ongoing and that service determinations would be made. (Ex. 80) The student’s [redacted] physical therapist participated in that review but did not inform that CSE as to opinions that there was a high risk of falling requiring supervision and intervention when the student moved around in the school. (T2297) With regard to other student physical limitations alleged by the parent to require school based PT I note that the evidence with regard to certain skills was contradictory and further that I am not persuaded that the district’s declining to attempt enhancement of each of those skills is a basis for a conclusion that a FAPE was not provided. (T742) Although the July 23, 2021 district evaluation had not been conducted and was not available to the CSE, it is noteworthy that that evaluator although aware of the student’s very low scores in most of her areas of testing and his slow pace, concluded that the student did not require assistance of close supervision for navigation in the school environment. (Ex. 82) Based upon the foregoing, I find no basis for a conclusion that the absence of a PT recommendation for the 2021-2022 SY constitutes a denial of a FAPE.
Communication Needs The parents assert that the district failed to provide an appropriate AAC device application for the student, that the student, parents and staff were not appropriately trained with regard to the application, which was provided, that the student was unable to adapt to the application provided and use it properly, and that he had not progressed with regard to his use of the AAC device with LAMP application the district had provided. [45] (Ex. II) I conclude that the evidence does not support those claims.
The persuasive evidence in this matter establishes that the student had no difficulty in using LAMP while at [redacted] and indeed his ability was described as “amazing”. (T855. 920, 927-928) While at [redacted] the student had been able to put together two words without prompting and to make longer responses with prompting. (T668, 865) [46] The student was evaluated at [redacted] in 2018 with various applications including Proloquo2Go and it was the conclusion of that evaluator that the student used LAMP without difficulty, and it was appropriate as it utilized motor planning, relevant she believed in view of the student’s diagnoses. Further, Proloquo2Go, required ongoing programming to provide appropriate language and she had noted in her report that the student’s teacher had reported student frustration and behavior issues when desired material was not programmed into the device. (Ex, 10, T306, 311, 313-316) The independent evaluator acknowledged that the student demonstrated a substantial knowledge of the use and structure of LAMP but concluded that a version of TouchChat more advanced than the one considered by the [redacted] evaluator was preferable. (Ex. 19) I consider the dispute a difference in professional judgment and not a basis for a conclusion that the LAMP application was not appropriate for the district to provide. [47] I give no weight to the student’s seeming preference for a TouchChat app during the independent evaluation and note the limited time and that that was a new and different application which may have interested this student during testing.
With regard to the student’s use of the AAC, I find credible the reports of [redacted] staff that the student used it spontaneously and when prompted and encouraged created multiword sentences. However, this student had an ongoing very strong desire to communicate vocally, and I conclude that that circumstance limited the effectiveness of efforts to enhance independent use.
The parents assert that district did not provide necessary training which would enable student use of the AAC at home and provide reinforcement for school-based efforts. However, the evidence is persuasive that opportunities for training were repeatedly offered by the district with no response from the parents. (Exs. 66, 42, T187-190)
Finally, I conclude that staff at [redacted] had the requisite level of skill with the LAMP application to facilitate and encourage student use. (T552, 821, 853, 857)
Behavioral Needs The parent asserts that the student’s behaviors were such that an FBA/BIP was required. Further, the parent claims that the fact that the district did not conduct an FBA in the circumstances here constitutes a denial of FAPE. (Ex. II)
Part 200.1 of the Commissioner’s Regulations defines an FBA to mean “the process of determining why the student engages in behaviors that impede learning and how the student's behavior relates to the environment.” SED specifies that an “FBA must be considered whenever: a student with a disability is exhibiting persistent behaviors that impede his or her learning or that of others, despite consistently implemented general school-wide or classroom-wide interventions; the student’s behavior places the student or others at risk of harm or injury; the Committee on Special Education (CSE) or Committee on Preschool Special Education (CPSE) is considering more restrictive programs or placements as a result of the student’s behavior; and/or the student is subject to disciplinary actions and a determination has been made that the behavior is related to the student’s disability.” see, SED Guidance May 2011 (https://www.p12.nysed.gov//specialed/publications/topicalbriefs/FBA.htm)
Further, it is well established that the absence of an FBA/BIP even when behaviors are present does not always amount to a denial of FAPE. Rather, the student’s IEP must be reviewed to determine whether the CSE properly addressed a student’s behaviors. A.C. ex rel M.C. v. Bd. of Educ., 553 F.3d 165, 172 (2d Cir. 2009); see also R.E v. New York City Dep’t of Educ., 694 F. 3rd 167, 190-91 (2d Cir. 2012)
In this matter the parent asserts the student demonstrated behaviors interfering with learning over a period of years including aggressive behaviors putting himself or others at risk of harm or injury. I do not consider claims concerning district response in school years prior to the school years at issue here except to note that with regard to the immediately preceding 2017-2018, 2018-2019 and 2019-2020 SYs the SRO found that there was “no evidence of a persistent pattern of interfering behaviors such that failure to conduct an FBA and develop a BIP would result in a denial of a FAPE….” (Ex. 28 at p. 27)
With regard to the 2020-2021 SY the persuasive evidence in this matter shows that whatever the student’s past history was his behaviors had started to decrease in Spring 2019. (T899-900) During the 2019-2020 SY the student de-escalated his behaviors through use of classroom and building wide strategies and that there were no maladaptive behaviors during that school year. (T901, 903, 905) [48] The student’s success in 2019-2020 SY was considered by the CSE which also included in the IEP strategies to address such student behaviors. I conclude that its determination that no FBA/BIP was required for the 2020-2021 SY was appropriate at the time that the IEP was developed and did not constitute a procedural violation. (Ex. 28) R.E.
Further, the parents’ claim that subsequent behaviors during the 2020-2021 SY demonstrate that the student had needed an FBA is not supported by the evidence. Only two instances of inappropriate behaviors occurred during the period in the 2020-2021 SY in which the student was enrolled in [redacted]. In the first, early in the school year, the student screamed and vocalized loudly when a staff member attempted to take his iPad to enable his transition to other activities but was able to be redirected back to task over a two-three minute period. (T176-178, 212-213, 562, 564, 659) In a November 2020 incident in which the student engaged in screaming and physical aggression, staff correctly identified the behavioral antecedent and successfully implemented a strategy to address it without the use of physical restraint and the behavior did not reoccur at [redacted]. (Ex. 43, T179-181, 235, 396, 572-573, 610) [49]
The student’s behavior at [redacted] rather than supporting parents’ claim, as argued by the parents, bolsters the district’s. The student started at [redacted] in the middle of the school year, transitioning directly from [redacted] in which he had been enrolled for several years and with which he was familiar. Student difficulties in working with unfamiliar staff and not preferred staff were known to the district. (T180) During his first six weeks at [redacted] there were numerous, although declining, instances of verbal and physical aggression toward student and staff. [redacted] utilized various strategies and by the end of 2020-2021 SY those behaviors ceased and there appears to have been only one behavioral incidents during the 2021-2022 SY. It is noteworthy that [redacted] did not conduct an FBA and did not develop a BIP. (T2006-2008)
Further, the IEPs noted the effectiveness of various coping strategies and, I conclude, adequately set forth positive behavioral interventions and strategies, including his use of the iPad to enable appropriate communication of wants and needs, an undisputed factor with regard to this student’s behaviors, to be utilized when necessary. (Ex.28) R.E Although reported to be no longer necessary by [redacted] staff, the CSE, at the request of [redacted] staff continued a goal addressing behavior. (Ex. 80)
I conclude that the lack of an FBA/BIP in the circumstances discussed above does not constitute a procedural defect or a denial of a FAPE.
Sensory Diet Issues The parents did not assert claims concerning the lack of a sensory diet in either of the complaints at issue. Further, I conclude that there is insufficient basis for a conclusion that the district waived that requirement. Accordingly I do not address the parents’ claim except to note: 1) The [redacted] OT testified that a sensory diet was necessary to enhance student attention but the evidence shows that appropriate classroom strategies were also effective for that purpose[50]; 2) Although at the June 2021 review sensory diet techniques were indicated as being utilized at [redacted], there is no claim or indication that [redacted] staff requested that a sensory diet be provided by the CSE at that time but rather it is reported that the CSE was told that assessments were ongoing. (Ex. 80)
* * * *
In this matter, although I conclude that the circumstances to be considered should include the impact of the pandemic and the effect of remote instruction, I find that this student’s circumstances absent the pandemic support a conclusion that the district offered a program reasonably calculated to enable the student to “make progress appropriate in light of … [his] circumstances.” Endrew F. Accordingly, based upon the foregoing, I find that the district has established that it provided a FAPE in the 2022-2021 and 2021-2022 SYs.
E. Transportation The parents assert that the district failed to comply with special education transportation requirements in the 2020-2021 and 2021-2022 SYs. Education Law 4402 (4)(d)
The 2020-2021 SY claim relates to the parents’ January 22, 2021 10 day notice informing the district that the student would be attending [redacted] and requesting transportation. (Ex. VV) Special education transportation to [redacted] did not commence until sometime in March. The parent’s assert the student’s attendance at [redacted] was delayed due to district inaction.
With regard to that issue persuasive unrebutted testimony establishes that appropriate district staff had not heard of that school until it was mentioned in the hearing with regard to the previous complaint and was not familiar with it. (T101) A determination that that school was similar to [redacted], the school he was attending, was required for transportation to be provided but the ability to make that determination was restricted and delayed because of the pandemic. (T101-103, see also Ex. 36) Ultimately, after several conversations with [redacted]’s director, transportation was approved but implementation was delayed because of the need to contract the service out and a medical emergency which impeded that. (T101-103) The student continued to attend [redacted] until removed by the parent on February 26, 2021, and received educational services in accordance with his IEP until his removal. The educational director testified that the student commenced in the beginning of March 2021 [51] The 2021-2022 SY claim is that at the July start of the school year the school bus delivered the student to [redacted] instead of [redacted] and that the student did not receive transportation to [redacted] and therefore did not attend for the balance of the week. The district does not dispute that claim. (T1219, 1296-1297)
The parents seek relief for educational services the student did not receive from [redacted] in the above specified periods. I note with regard to the 2020-2021 SY claim that even assuming entitlement to relief for the 2020-2021 SY claim, the student was receiving services at Kaplan and conclude that educational loss, if any, was de minimis.
However, in this matter I have concluded that district has established that it provided a FAPE. Accordingly, I find no basis for relief as a form of compensatory services. See P. v. Newington, 546 F.3d 111(2d Cir. 2008) Parents have articulated no authority supporting relief in this proceeding in these circumstances. Accordingly, I do not address parents claim regarding the 2021-2022 SY except to note that the parents have not specified the nature of the relief sought.
F. Appropriateness of [redacted] and Equitable Considerations In view of the foregoing finding, I do not address the appropriateness of the unilateral placement or equitable considerations (Burlington/Carter Prongs 2 and 3).
ORDER
This matter is DISMISSED
Dated: April 17, 2022
___________/s/_______________
JUDITH SCHNEIDER, ESQ.
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 parties' request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for proceedings before a 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 available at http://www.sro.nysed.gov/part279home.html.
EXHIBITS
District 1. IEP - 16pp. 04.19.2016 re [redacted] CSD. 2. IEP - 18pp. 03.02.2017.
3. IEP - 20pp. 04.28.2017.
4. Psychological Reevaluation, 5pp. 02.06.2018.
5. Educational-Annual-Reevaluation Report, 6pp. 04.12.2018.
6. Occupational Therapy Annual Re-Evaluation Report, 4pp. 04.16.2018.
7. Physical Therapy Annual Review Report, 3pp. 04.18.2018.
8. Speech-Language Annual Review-Re-evaluation Report, 3pp. 04.18.2018.
9. IEP - 18pp. 05.18.2018.
10. Assistive Technology Evaluation, 4pp. 12.20.2018.
11. Educational Report, 5pp. 02.28.2019.
12. Occupational Therapy Annual Review Report, 3pp. 03.04.2019.
13. Speech-Language Annual Review Report, 2pp. 03.04.2019.
14. IEP - 20pp. 04.03.2019.
15. Student [redacted] - Due Process Complaint, 8pp. 11.21.2019.
16. Student [redacted] - Parent Response, 3pp. 12.02.2019.
17. Physical Therapy Recommendation Sheet, 1p. 01.27.2020.
18. Occupational Therapy Evaluation, 20pp. 03.04.2020.
19. IEE Assistive Technology Evaluation, 12pp. 03.10.2020.
20. IEE Speech & Language Evaluation, 14pp. 03.10.2020.
21. IEE Physical Therapy Evaluation, 8pp. 03.13.2020.
22. Independent Neuropsychological Evaluation, 21pp. 03.21.2020.
23. Email forward from [redacted] to [redacted], 2pp..05.14.2020 @ 11.22.a.m.
24. Email forward from [redacted] to [redacted]., 2pp. 05.14.2020 @ 1.15.p.m.
25. Email forward from [redacted] to [redacted], 2pp..05.14.2020 @ 1.17.p.m.
26. Email forward from [redacted] to [redacted], 2pp..05.14.2020 @ 1.20.p.m.
27. Prior Written Notice Proposed Continuation for Special Educ., 4pp. 6.1.2020
28. IEP - 23pp. 6.1.2020.
29. Social History Update, 7pp.
30. Home Language Questionnaire, 1p. 2.28.2017.
31. Progress Report for Goals and Objectives SY 2019-2020, 14pp.
32. Session Notes, 1p. (Summer 2019).
33. Session Notes SY 2019-2020, 12pp.
34. Session Notes, 9pp. (January-July 2020).
35. Functional Performance Assessment SY 2019-2020, 2pp.
36. Student IJB - Due Process Complaint 2.10.2021
37. Student IJB - Response to Due Process Complaint 2.22.2021. 38. Summer School Schedule, 2pp. 7.7.2020.
39. Teacher Meeting Notes, 2pp. (November 2020 - December 2020). 40. Discrete Trial Instructions - Data, 27pp. 41. Program Reports, 11pp. 42. Consent regarding Counseling-Training, 2pp. 3.1.2021 (BLANK). 43. Communication Log, 1p. (September 2020 - December 2020). 44. Text Message Correspondence, 55pp. 45. Progress Report for Goals and Objectives SY 2020-2021, 13pp. 8.14.2020. 46. Progress Report for Goals and Objectives SY 2020-2021, 16pp. 3.23.2021. 47. Email thread from Parent to [redacted], 1p. 7.30.2020. 48. Email thread from Parent to [redacted], 1p. 8.4.2020. 49. Email from [redacted] to Parents with attachment, 4pp. 9.8.2020. 50. Email from [redacted], 1p. 10.1.2020. 51. Email from D. Cooney, 1p. 10.2.2020. 52. Email thread from [redacted] to [redacted], 1p. 10.2.2020. 53. Email from [redacted], 1p. 11.2.2020. 54. Email from [redacted] to Parent, 1p. 11.12.2020. 55. Email from [redacted], 1p. 11.13.2020. 56. Email from [redacted] to Parent, 1p. 11.30.2020. (NOTE: transcript has the date 11/20/20 which is not correct) 57. Email from [redacted], 1p. 12.10.2020. 58. Email from [redacted], 1p. 12.11.2020. 59. Email thread from [redacted] to Parents, 2pp. 12.22.2020. 60. Email from [redacted] to Parents, 1p. 1.5.2021. 61. Email from [redacted] to Parents, 1p. 1.21.2021. 62. Email thread from [redacted] to [redacted], 1p. 3.24.2021. 63. Email thread from [redacted]to [redacted], 1p. 3.25.2021. 64. Email from [redacted] to [redacted], 1p. 3.26.2021. 65. Report, 9pp. (July 2020 - August 2020). 66. Psychologist Sessions, 1p. (July 2020 - February 2021). 67. Speech Therapy Parent Training Log, 3pp. (September 2020 - February 2021). 68. Speech Therapy Annual Review - Communication Skills, 1p. 3.23.2021. 69. Physical Therapy Summary, 2pp. 3.24.2021. 70. OT Billing Adjustment, 3pp. (July 2020 - August 2020). 71. Speech Therapy Billing Adjustment, 4pp. (July 2020 - August 2020). 72. OT Billing Adjustment, 15pp. (September 2020 - March 2021) 73. [redacted] Report, 5pp. (September 2019 – December 2019). 74. [redacted] Report, 7pp. (January 2020 – June 2020). 75. [redacted] Report, 7pp. (July 2020 – March 2021). (NOTE: transcript has the date June 2020 which is not correct) 76. CSE Meeting Notice, 3pp. 11.17.2020 77. Email from Parent to [redacted], 1p. 11.30.2020 78. SRO Decision (No. 21-085), 33pp. 5.24.2021.
79. Email thread from [redacted] to [redacted], 7pp. 6.14.2021. (NOTE: transcript has that the email was to [redacted] which is not correct)
80. IEP – 26pp. 6.15.2021.
81. Occupational Therapy Re-Evaluation done by [redacted], 3pp. 6.21.2021.
82. Physical Therapy CSE Evaluation done by [redacted] 3pp. 7.29.2021 83. Psychoeducational Evaluation done by [redacted], 7pp. (July 2021) 84. Educational Evaluation done by [redacted], 10pp. 8.7.2021 85. Assistive Technology-Augmentative and Alternative Communication Training Recommendations done by [redacted] and [redacted], 2pp. 8.19.2021
86. Assistive Technology-Augmentative and Alternative Communication Evaluation done by [redacted] and [redacted], 16pp. 8.19.2021
(NOTE: transcript has the date 6/19/21 which is not correct) 87. Speech and Language Re-Evaluation Report done by [redacted], 7pp. (July 2021) 88. Educational Evaluation done by [redacted], 12pp. 9.23.2021 (second version) 89. Response to Due Process Complaint, 5pp. 7.12.2021 90. Subpoena Duces Tecum (redacted), 2pp. 8.9.2021
91. Due Process Complaint, 8pp. 7.2.2021
Parent
A. (withdrawn) B. (withdrawn) C. (withdrawn) D. (withdrawn) E. IEP – 18pp. 10.2.2019 F. (withdrawn) G. Student Incident Report, 1p. 7.26.2016 H. Student Bus Conduct Report, 2pp. 1.11.2018 I. Occupational Therapy Reevaluation Report, 2pp. 2.16.2017 J. Physical Therapy Annual Review Report, 2pp. 2.16.2017 K. Speech-Language Annual Review Report, 3pp. 2.27.2017 L. (withdrawn) M. (withdrawn) O. (withdrawn) P. (withdrawn) Q. (withdrawn)
R. (withdrawn) S. (withdrawn) T. (withdrawn) U. (withdrawn) V. (withdrawn) W. (withdrawn) X. (withdrawn) Y. Ten-Day Notice with Receipt, 3pp. 1.22.2021 Z. Dr. [redacted] Resume, 5pp. (undated) AA. [redacted] Resume, 2pp. (undated) BB. [redacted] Resume, 2pp. (undated)
CC. Dr. [redacted] Resume, 5pp. (undated) DD. [redacted] Program Description, 1p. SY 2020-2021 EE. [redacted] Clinical Services, 2pp. SY 2020-2021 FF. [redacted] March Attendance, 1p. (March 2021) GG. [redacted] April Attendance, 1p. (April 2021) HH. [redacted] Trifold Brochure, 2pp. (undated)
II. [redacted] Fact Book, 32pp. (undated) JJ. [redacted] 20/21 Fact Sheet, 2pp. (undated) KK. [redacted] 21/22 Fact Sheet, 2pp. (undated) MM. Signed Letter from Parent to District re Evaluations, 1p. 10.19.2018 NN. Encounter Attendance, 32pp. (March 2017-January 2020) OO. [redacted] ITEP’20-’21,’21-’22, 37pp. PP. [redacted] Individual Support Plan, 2pp. 8.17.2021 QQ. [redacted] Behavioral Tracking, 1p. (undated) RR. [redacted] Student Chart, 1p. (undated) SS. [redacted] International School OT Evaluation, 6pp. 11.4.2021 TT. Pictures Related to OT Evaluation, 3pp. (10/13 through 11/19) UU. [redacted] International 2021-2022 Enrollment Contract, 12pp. 5.26.2021[52] VV. 10-Day Notice Letter, 3pp. 1.22.2021 WW.10-Day Notice Letter, 5pp. 6.18.2021 XX. [redacted] International School Progress Report, 29pp. (undated)
Impartial Hearing Officer
I. Order of Consolidation, 9/7/2021, 2 pgs.
II. Parents Closing Brief
III. District Closing Brief
Footnotes
[1] The district has historically been referred to as [redacted] Any document in the record referencing the [redacted] refers to the [redacted].
[2] Exhibit references are preceded by Ex., District Exhibits are numbered. Parents exhibits are lettered. IHO exhibits are identified by italics. References to the transcript are preceded by the letter T.
[3] Hearings were held in this matter on April 30, 2021; May 4, 2021; May 7, 2021; May 18, 2021; May 21, 2021; September 15, 2021; October 1, 2021; October 7, 2021; December 1, 2021; December 7, 2021 and December 9, 2021.
[4] The parents had previously filed a Due Process Complaint dated November 19, 2019 (hereafter the “previous Complaint”) concerning the 2017-2018, 2018-2019 and 2019-2020 school years. (Ex. 15) The Impartial Hearing Officer (IHO) for that matter concluded the district’s programs had been appropriate and denied the requested relief. (Ex. 78) During the course of the current hearing the Office of State Review (hereafter “SRO”) issued a decision affirming the IHO (SRO Case No.21-085. (Ex. 78)
[5] Delay in the issuance of the decision in this matter beyond the period provided by applicable regulation is regretted but was occasioned by unavoidable personal circumstances.
[6] The period prior to the 2020-2021 SY is more extensively discussed in SRO No 21-085. (Ex. 78)
[7] The date of the request for AT evaluation is not in the record. Requested evaluations go on a list and are sometimes significantly delayed. (T848)
[8] The push-in model enables reduction of a student’s removal from class and aids in the generalization of academic concepts across multiple settings. (T84-86, 998)
[9] The impartial hearing that followed ultimately resulted in State Review Officer affirmance of the IHO’s determination that the district had provided a FAPE for each of the school years at issue. (Ex. 78) The parents have appealed that decision. (Ex. II)
[10] There is no recent diagnosis of ASD in the record and Dr. [redacted] specifically rejected that diagnosis. (Ex. 20)
[11] The SFA is a standardized criterion referenced assessment to measure school performance of functional tasks in a school environment (classroom, playground/recess, transportation, bathroom/toileting, transitions and mealtime/snacks) and it allows students with disabilities to use alternative methods in order to accomplish physical tasks. (Ex. 21)
[12] The requested assessments had been completed at the request of the parents and had been sent home in the student’s bookbag but apparently not provided to Dr. [redacted]. (Ex. 27, T209-210, 919-920, 1076, 1087)
[13] Dr. [redacted] has not seen the student or consulted with the parents since the evaluation. (T1907)
[14] The OT evaluator’s conclusion that the student had required more OT in prior years was considered by the SRO who concluded that the student had progressed in visual and fine motor skills in the school years at issue at that time which included the 2019-2020 SY. (Ex. 78)
[15] Evidence in this matter indicates that the student had been at that time using LAMP for almost a year.
[16] The [redacted] AT evaluator stated that LAMP addressed the communication needs of students with poor motor planning and that the student exhibited apraxia due to his diagnosis of [redacted] (T306, 311, 313-316).
[17] Ms. [redacted] provided grade equivalents in addition to percentiles. (Ex. 20) With regard to those, Ms. [redacted], the student’s [redacted] SL service provider disvalued grade/age equivalents for [redacted] students because they were not normative for them. (T830)
[18] Parent illness as well as parent difficulty utilizing the electronic system were among factors delaying the provision of consent and student participation in remote learning. (Exs. 23, 24, 25, 26)
[19] It is noteworthy that although on one occasion in the 2017-2018 SY restraint had been used that methodology had not been required thereafter. (T103, 940, 964, 1007)
[20] The District had allowed the student to take home the device at least by the start of the pandemic shutdown in March 2020 (T2143)
[21] Evidence supports the district’s claim that it repeatedly attempted to provide training to the parent during the 2020-2021 SY but the parent did not respond. (Ex. 59-62, 64,66, T328-329) Training notifications/invitations were sent via the student’s communication book/bookbag, phone and email. (Exs. 59, 66, T93, 183-185, 189-190, 230, 329, 338-339, 669) There is no evidence that the parent made efforts to receive the AT training the CSE had offered in June 2020.
[22] Ms. [redacted], the student’s 2019-2020 teacher also believed the student had regressed after the shutdown. (T915)
[23] i-Ready is an online reading curriculum and the student’s progress was also checked online. (T639-640) That assessment had also been administered in December 2019 and student areas of need determined but further assessments in 2019-2020 were precluded by the pandemic (T908, 914) `
[24] The student continued to have access to other classroom dedicated iPads for other activities (T365).
[25] The teacher continued to work on the IEP math goal but utilized the calculator as an intervention strategy and also created a non-IEP spelling goal designed for the student. (T629-630)
[26] An OT evaluation of this student was conducted on November 4, 2021. (Ex. SS)
[27] Purchase of the equipment by the parents and arrangements for training with it were not made until November-December 2021. (T2024-2025)
[28] Transition difficulties previously noted by [redacted] appear to have been a factor. It is noteworthy that a transition period was provided when the student moved to another program at [redacted]. (T1333, 1743, 1838-1839)
[29] An earlier June review scheduled with the consent of the parent was rescheduled when the parent did not appear. (Ex. 79)
[30] The IEP reports information dated April 2021 received from [redacted] There is no Progress Report in the record with that date. The sole [redacted] Progress Report in the record commences with May 21, 2001 Summaries of Assessment Findings and Observations. (Ex. XX)
[31] At that time the student was receiving 2 sessions of OT at [redacted].
[32] The testimony of district staff and the accuracy of the IEP comments with regard to information provided to the CSE by [redacted] staff and the CSE’s responses has not been contested by the parents.
[33] The evaluation describes it as having a Proloquo2Go application. (Ex. 87) However, the evaluator obtained it from the district offices, understood it to be the one the student previously used and did not check the equipment to identify the app which, she stated, could have been LAMP. (T1565-1590)
[34] Although it was possible there was some regression demonstrated in the EVT, she stated that that test relies on giving a verbal response and the student principally relied on his AAC during the evaluation. (T1600-1603) However, she stated that since scores could not be lower than less than 0.1 %ile there could have been regression in other areas (T1596) and if the student had plateaued in March 2020 scores would be expected to be lower (T1616).
[35] It was noted that the student insisted on attempting to verbalize responses and was reluctant to use the device but with prompting and encouragement did so. (Ex. 83)
[36] The [redacted] OT reported a maladaptive behavioral incident the day before her December 1, 2020 testimony arising from the student being asked to put something away because he was distracting other students and resulting in verbal outbursts and the student’s removal from the classroom. Proprioceptive calming measures were effective in regulating him. (T1929-1930, 1962) She acknowledged that student dysregulation can usually be dealt with in the classroom. (T1962-1963)
[37] Claims asserted in the due process complaints that were not addressed in the parents closing memorandum are deemed to have been abandoned pursuant to IHO notification to the parties prior to preparation of the parents’ closing. Record references not cited below are specified above.
[38] It is noteworthy that the student’s 2019-2020 IEP was found appropriate despite the findings and recommendations of the IEEs. Appeal 20-085 (Ex. 78)
[39] The parents, relying principally on the testimony of Dr. [redacted], urge that the student’s cognitive deficits although substantial are not as severe as reported in district evaluations. However, the psychoeducational evaluation conducted after the June 2021 CSE review for the 2021-2022 SY was, I conclude, substantially consistent in its results with the earlier district evaluation. (Exs. 83, 4) Further, Dr. [redacted]’s evaluation did not include a cognitive assessment, or an observation and he did not consider any current information from [redacted] staff. I also note that Dr. [redacted] acknowledged obstacles in definitively determining the degree of a cognitive deficit when as here there were other deficit areas established by testing. (T1108-1110)
[40] The IDEA and its implementing regulations provide that a party requesting an impartial hearing may not raise issues at the impartial hearing that were not raised in its original due process complaint notice unless the other party agrees (20 U.S.C. § 1415[f][3][B]; 34 CFR 300.508[d][3][i], 300.511[d]; 8 NYCRR 200.5[i][7][i][a]; [j][1][ii]), or the original due process complaint is amended prior to the impartial hearing per permission given by the IHO at least five days prior to the impartial hearing (20 U.S.C. § 1415[c][2][E][i][II]; 34 CFR 300.507[d][3][ii]; 8 NYCRR 200.5[i][7][b])
[41] The SRO found that for the 2019-2020 SY and the two preceding school years that although challenged by the parents that amount was sufficient. (Ex. 78)
[42] Ex. 17 is a summary of the complete evaluation which is not in the record. The evaluation was more comprehensively summarized in Exhibit 69. (T724-725)
[43] On January 23, 2020 the parent had been informed that a recommendation to terminate the service would be considered by the CSE. (Ex. 16, T750)
[44] The independent evaluator did not testify in this proceeding.
[45] I do not consider the parent’s assertions with regard to initial district restriction of the AAC with the LAMP application to school use. For the period at issue in this proceeding the student was permitted by the district to take the device home and indeed that had commenced prior to the pandemic shutdown and before the June 2020 review which specifically authorized it. With regard to the district’s prior restriction the evidence shows that the student when previously provided with an AAC for both home and school use had changed the settings at home and frequently forgot to bring the AAC back to school with him.
[46] Similar ability using an AAC just a few months after he left [redacted] was confirmed by the [redacted] SLP who concluded that the student knew how to make longer sentences but did not want to take the time. (T1190-1192)
[47] It is noteworthy that the Proloquo2Go app was disfavored by both the [redacted] and independent evaluators and that the [redacted] SLP did not like LAMP for any student. (T1213) The 2021 AT evaluator recommended Proloquo2Go although reporting facility with LAMP. (Ex. 86)
[48] It is noteworthy that the SRO considered this issue and came to the same conclusion. Ex. 78 at p. 27
[49] [redacted] students include those with severe and pervasive behaviors and that a [redacted] transdisciplinary team is routinely convened to collect data and develop BIPs when it is believed to be necessary and could have done so if the student’s behavior subsequent to the development of the IEP indicated that that was appropriate. (T996, 1007)
[50] It is noteworthy that the student’s 2020-2021 goal directed at attention was achieved and that his [redacted] teacher in that school year that he was happy and compliant. (T564)
[51] Although [redacted] attendance documentation records the student’s first attendance day as March 15, 2021, there is no parental claim that the student did not attend [redacted] after his removal from [redacted] due to district action/inaction. (Ex. FF) Further, given the nature of program described in that record, the March 15 date may indicate the date he moved to the [redacted] Program, not the date he entered the school. (Ex. FF)
[52] On December 1, 2021, Parents marked another document UU for identification – Notes from Previous OT. However, it was not entered into evidence.