NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
NAMES AND TITLES OF PERSONS WHO APPEARED
MARCH 8, 2022
For the Parents:
[REDACTED] Parent Attorney
For the Department of Education:
[REDACTED] DOE Attorney
NAMES AND TITLES OF PERSONS WHO APPEARED
MAY 10, 2022
For the Parents:
[REDACTED] Parent Attorney
For the Department of Education:
[REDACTED] DOE Attorney
NAMES AND TITLES OF PERSONS WHO APPEARED
OCTOBER 7, 2022
For the Parents:
[REDACTED] Parent Attorney
[REDACTED] Parent
[REDACTED] Parent
For the Department of Education:
[REDACTED] DOE Attorney
NAMES AND TITLES OF PERSONS WHO APPEARED
OCTOBER 25, 2022
For the Parents:
[REDACTED] Parent Attorney
[REDACTED] Parent
[REDACTED] Parent
For the Department of Education:
[REDACTED] DOE Attorney
[REDACTED] School Psychologist
[REDACTED] Parent Coordinator, [REDACTED]
NAMES AND TITLES OF PERSONS WHO APPEARED
NOVEMBER 14, 2022
For the Parents:
[REDACTED] Parent Attorney
[REDACTED] Parent
[REDACTED] Director, The [REDACTED] School ([REDACTED])
For the Department of Education:
[REDACTED] DOE Attorney
On or about July 2, 2021, I was appointed the Impartial Hearing Officer, pursuant to the Individuals with Disabilities Education Act, ("IDEA") 20 U.S.C. 1415(f)(1) in the matter of [REDACTED]. The parties moved to extend the compliance date during the proceeding. 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 the matter. Accordingly, the request for extensions of the compliance dates were granted. Appended to the record is a list of documents submitted into the evidence [REDACTED] is a [REDACTED]-year-old boy who is diagnosed with autism spectrum disorder ("ASD"). Ex. S. He lives with his Parents, in New York City. For the 2021-2022 twelve-month school year, [REDACTED] attended The [REDACTED] School ([REDACTED]), coupled with afterschool OT and 1:1 instruction. [REDACTED], [REDACTED]'s mother testified at the hearing. Tr. 216-41; Ex. S. She provided a background of [REDACTED]'s needs and described her interactions and communications with the DOE. She testified about [REDACTED] and the meaningful progress he made during the 2021-2022 school year. [REDACTED] Founder and Executive Director of [REDACTED] also testified. Tr. 169-213; Ex. Q. [REDACTED]has a Master's Degree in Early Childhood Education and a Certificate of Advanced Study in ASD. 3 Ex. Q. She credibly testified that [REDACTED] required 1:1 [REDACTED] and individualized instruction during the 2021-2022 school year. She outlined [REDACTED]'s needs, deficits, goals, and described the progress he made. She was familiar with [REDACTED] during the 2021-2022 school year as she interacted with [REDACTED], his team, his outside providers and his Parents regularly. Ex. Q. On occasion she provided direct services to [REDACTED] or conducted observations in the classroom to monitor his progress, provide supervision to the team, and support curriculum development. Ex. Q [REDACTED] has a complex comorbidity of diagnoses including [REDACTED], [REDACTED], [REDACTED], and [REDACTED]. Ex. Q. He exhibits delays in areas of emotional regulation, expressive language, attention and focus, and rigid thought patterns/behavior. Ex. Q. He has a history of engaging in high rates of off task behavior, anxiety, difficulty with impulse control, emotional and physical dysregulation, difficulty with skills acquisition and retention, and pragmatic language delays. Ex. Q. When [REDACTED] was two years old, his Parents realized that his speech was delayed. Ex. S. His pediatrician recommended that he be tested and was then referred for Early Intervention services with a diagnosis of [REDACTED]. Ex. S. He began receiving [REDACTED] and [REDACTED] until he aged out of Early Intervention. Ex. S.
Under the CSPE's recommendation, [REDACTED] attended preschool and preKindergarten in a 12:1:1 class at [REDACTED]. Ex. S; Tr. 223. Due to the large class size, lack of 1:1 instruction, and the varying degrees of need of each student, his teacher had difficulties providing [REDACTED] with the support and instruction he requires. Ex. S; Tr. 221-2. [REDACTED] was harmful to himself and was a disruption in the classroom. Tr. 222. [REDACTED] did not receive [REDACTED], [REDACTED], or [REDACTED] and his negative behaviors increased significantly. Ex. S. Without [REDACTED], he was regressing. Ex. S. His Parents then took him to [REDACTED] at the [REDACTED]. Ex. S. Ultimately, the school determined that they could not provide an appropriate program for [REDACTED]. Ex. S. [REDACTED]'s Parents subsequently had him evaluated by [REDACTED] who strongly recommended an intensive 1:1 [REDACTED] program. Ex. S. [REDACTED] began receiving intensive 1:1 [REDACTED]. Ex. S.
During the 2021-2022 school year, [REDACTED] exhibited delays in the areas of socialemotional development and adaptive behavior. Ex. G, P. He had a history of engaging in high rates of off task behaviors, such as noncompliance, physical and emotional dysregulation, and selfinjurious behavior. Ex. G, P. He presented as self-directed and engaged in behavior that required consistent support to access the curriculum in both 1:1 and group activities. Ex. G, P.
[REDACTED] struggled in moments of emotional dysregulation. Ex. P. He had a very low threshold for discomfort and a lack of confidence in his abilities. Ex. D. He needed 1:1 instructional support and prompting to express himself in an appropriate manner instead of refusing to engage in any form of communication. Ex. P. He had difficulty discussing and acknowledging conflict and required assistance to manage it functionally. Ex. P. He had significant and frequent meltdowns and periods of opposition or aggression, including foul language and threats. Ex. L. He was unsafe and unpredictable around peers. Ex. L. He required [REDACTED] instruction to support changes to his routine. Ex. M. [REDACTED] would shut down or get anxious if new material was taught to him too quickly because he was unsure of what information he should have already known and what information was new. Ex. S [REDACTED]'s behaviors greatly hindered his ability to form relationships with his peers, independently navigate his environment, or participate in a setting that was less restrictive. Ex. G, P, Q. [REDACTED] required access to a sensory gym and a sensory diet to reach an appropriate state of regulation to allow him to attend, focus, and participate in educational activities. Ex. Q. When [REDACTED] first started at [REDACTED], he was initially in a room by himself, but soon transitioned to a classroom with peers, and was able to establish friendships with his peers. Ex. S. His behavior program at [REDACTED] effectively addressed his negative behaviors and anxiety and allowed him to attend class with other children. Ex. S.
[REDACTED] also struggled with speech and language delays. Ex. D. He has difficulty maintaining auditory attention during tasks and needs frequent check-ins to be sure he is focused. Ex. D. He requires direct teaching combined with gradual fading of prompts as information is learned and then retained. Ex. D. [REDACTED] also has sensory motor deficits. Ex. M. He requires strategic sensory input and emotional support when activities require challenging strength, coordination, rhythm and timing, and visual spatial processing. Ex. M. He has been making progress with his strength, coordination, and endurance. Ex. M. He continues to present with decreased strength and stability. Ex. M.
Academically, [REDACTED] has been making progress, however he is several grade levels behind where similarly-aged students would be. Ex. S. [REDACTED] has proven that he can learn when he is taught with small, digestible lessons and new topics are introduced incrementally by a teacher he trusts. Ex. S.
Analysis
The purpose of the IDEA is to ensure that students with disabilities have available to them a free, appropriate, public education ("FAPE") that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living, and to ensure that the rights of students with disabilities and Parents of such students are protected. 20 U.S.C. § 1400(d)(1)(A)-(B); see also Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982); Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 (2009); M.H. v. N.Y.C. Dep't of Educ., 685 F.3d 217, 223 (2d. Cir. 2012). The United States Supreme Court recently clarified the standard to which educational programs developed pursuant to the IDEA's requirements are held. "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." Endrew F. v. Douglas Cty. Sch. Dist. RE-1, _U.S._, 137 S. Ct. 988, 999 (2017). The determination of whether an IEP is sufficient to meet this standard therefore differs according to the individual circumstances of each student. See id. at 1000. A child's educational program must be appropriately ambitious in light of his circumstances.
Id. at 992. Where deprivation of FAPE is found, the IDEA allows a hearing officer to fashion a remedy that he or she finds appropriate under the circumstances, including but not limited to "ordering a local educational agency to comply with procedural requirements under this section," 20 U.S.C. § 1415(f)(3)(E)(iii), and awarding compensatory education and additional services tailored to meet the unique circumstances of the case. 20 U.S.C. §§ 1401(3), 1412(a)(1)(B); N.Y. Educ. Law §§ 3202(1), 4401(1), 4402(5); see also P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008); Wenger v. Canastota, 979 F. Supp. 147 (N.D.N.Y. 1997). The IDEA further contemplates the equitable award of private tuition payment where Parents of students covered under the IDEA have unilaterally placed the student privately in response to the DOE's failures to provide the student with a FAPE. Sch. Comm. of Town of Burlington, Mass. v. Dep't of Educ., 471 U.S. 359, 373-74 (1985); Florence Cnty. Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); A.D. v. Bd. of Educ. of City Sch. Dist. of N.Y., 690 F. Supp. 2d 193, 198 (S.D.N.Y. 2010); 20 U.S.C. § 1412 (a)(10)(C). "In Burlington, the Court found that Congress intended retroactive reimbursement to Parents by school officials as an available remedy in a proper case under the IDEA . . .. 'Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance' had it offered the student a FAPE." SRO No. 12-135, p. 9 (quoting Burlington, 471 U.S. at 370-71, and citing 20 U.S.C. § 1412 (a)(10)(C)(ii) and 34 CFR 300.148). The broad spectrum of equitable relief contemplated under the IDEA encompasses all forms of private tuition payment remedies, whether that be reimbursement, prospective payment, retrospective payment, or any direct payment scheme under which the DOE would make the student's tuition payments in the place of the Parent. E.M. v. N.Y.C. Dep't of Educ., 758 F.3d 442, 453 (2d Cir. 2014). Under the Burlington-Carter three-part assessment, Parents are entitled to payment of a private placement if: (1) the DOE failed to offer the student a FAPE; (2) the private placement secured by the Parents is appropriate to the child's needs; and (3) equitable considerations support the plaintiffs' claim. Forest Grove, 557 U.S. 230; Carter, 510 U.S. 7; Burlington, 471 U.S. 359; Frank G. v. Bd. of Educ., 459 F.3d 356 (2d Cir. 2006); 20 U.S.C. § 1412(a)(10)(C).
The burdens of production and persuasion fall upon the DOE for all matters at issue other than the appropriateness of the Parental placement, for which the burden of proof lies with the Parents. N.Y. Educ. Law § 4404(1)(c); see also M.P.G. v. N.Y.C. Dep't of Educ., 2010 WL 3398256 at *7 (S.D.N.Y. Aug. 27, 2010).
PRONG I
An appropriate program begins with an IEP which accurately reflects the results of the 1) student's present levels of performance; 2) provides for the use of appropriate special education services to address the child's special education needs; 3) establishes annual goals which are related to the child's educational deficits; 4) identifies transitions services; 5) provides a start and end date to the recommended program and services; and 6) criteria and evaluation procedures for the measurement of goals. See, Walzczak, supra; Id., Appeal No. 00-005. "The initial procedural inquiry is no mere formality." Walczak, at 129. "Adequate compliance with the procedures prescribed [by IDEA] would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP." Rowley at 206. For an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression. 20 U.S.C. § 1412 (a)(10)(C)(ii) and 34 CFR 300.148). The broad spectrum of equitable relief contemplated under the IDEA encompasses all forms of private tuition payment remedies, whether that be reimbursement, prospective payment, retrospective payment, or any direct payment scheme under which the DOE would make the student's tuition payments in the place of the Parent. E.M. v. N.Y.C. Dep't of Educ., 758 F.3d 442, 453 (2d Cir. 2014).
The DOE opined, in the form of witness testimony, that a FAPE was afforded [REDACTED]. The DOE presented [REDACTED], School Pyscholigst, to summarize what she believed transpired during the IEP meeting. Notably and of the utmost significance, Ms. [REDACTED] had no independent recollection of the meeting nor capable of substantiating her affidavit of testimony. Ms. [REDACTED]'s testimony was peppered with vague statements relating to her participation in the IEP meeting and incomplete. To this end, I find, in a most respectful manner, Ms. [REDACTED]'s testimony incredulous.
It is well-settled that school districts must ensure that a child's IEP is in effect by the beginning of the school year and that Parents are provided a copy. Cerra, 427 F.3d at 193; see 34 C.F.R. § 300.342(a) ("At the beginning of each school year, each public agency shall have an IEP in effect for each child with a disability within its jurisdiction.") Even if the school district fails to timely provide a copy of the IEP to the Parents, a school district may have fulfilled its procedural obligations when the Parent had the opportunity to participate in the decision making process. Cerra, 427 F.3d at 193; N.K. v. New York City Dep't of Educ., 961 F. Supp. 2d 577, 586 (S.D.N.Y. 2013).
In K.M. v. New York City Dep't of Educ., although the Parents did not receive the IEP until after the first day of school, they were still able to participate in the decision making process because they received a draft IEP at the IEP meeting. No. 13 Civ. 7719, 2015 U.S. Dist. LEXIS 40465, 2015 WL 1442415, at *1 (S.D.N.Y. Mar. 30, 2015). In B.P. v. New York City Dep't of Educ., the Parents received a copy of the IEP two weeks before the start of the school year, which significantly impeded their opportunity to participate in the decision-making process because it was too late to reconvene the CSE before the start of the school year. 2014 U.S. Dist. LEXIS 167552, at *6, 22 (S.D.N.Y. Dec. 3, 2014).
In the instant matter, I am persuaded that [REDACTED]'s Parents never received a copy of the IEP. During the meeting, they were able to discuss the DOE's recommendations. However, they had many questions that the IEP team was not able to answer. Further, unlike the Parents in K.M., they did not receive a draft IEP during the IEP meeting. In B.P., receipt of the IEP two weeks before the school year started significantly impeded the Parent's opportunity to participate in the decision-making process. Here, the fact that [REDACTED]'s Parents never received the IEP means that their opportunity to participate in the decision-making process was also significantly impeded. The DOE did not comply with the procedural requirements set forth in IDEA and therefore, did not provide [REDACTED] with a FAPE. Further, based on the information that [REDACTED]'s Parents learned at the IEP meeting, the DOE's IEP, recommended placement, and program were not reasonably calculated to ensure [REDACTED] received an educational benefit. The DOE did not conduct any observations or formalized assessments of [REDACTED] in advance of the IEP meeting. Ex. S. When [REDACTED]'s Parents tried to learn about the recommended placement, they were told that their son could not be placed and their questions could not be answered without an IEP. Ex. B, S. However, no one answered any of [REDACTED]'s Parents' requests for a copy of the IEP. Ex. B, N, S.
In reference to and without minimizing [REDACTED] testimony, I note that without a properly transmitted IEP to Parents, her testimony is moot.
The DOE did not meet their Prong I burden as they failed, both procedurally and substantively, to offer [REDACTED] a FAPE.
PRONG 2
During the 2021-2022 school year, [REDACTED] attended [REDACTED]. Due to [REDACTED]'s multiple diagnoses, he required a low student to teacher ratio and opportunities for [REDACTED] instruction with a highly skilled and trained team of professionals with expertise in the areas of special education and [REDACTED]. Ex. Q, S. He enjoyed socializing with his peers and engaging in 1:1 and small group instruction. Ex. Q. [REDACTED]'s classes were developmentally, socially, and academically appropriate for him. Ex. Q. He also needed supplemental 1:1 academic instruction and support after school, which was provided by [REDACTED]. Ex. S.
[REDACTED] has a unique teaching model with an emphasis on [REDACTED] and transdisciplinary education. Ex. Q. For the 2021-2022 school year, there were [REDACTEDs, ranging from [REDACTED], enrolled in [REDACTED]. Ex. Q. Students at [REDACTED] present with a variety of needs and abilities, including but not limited to ASD, rare genetic disorders, learning disabilities, anxiety, and other health impairments. Ex. Q. Students at [REDACTED] need [REDACTED], special education, 1:1 instruction and support, small group environment, mental health services, behavior therapy, OT, physical therapy, SLT, social skills services, extended day services, and close collaboration between students' families and outside providers. Ex. Q.
All [REDACTED] staff are supervised by senior members of the team and are licensed and/or certified in their field. Ex. Q. All staff receive training in Nonviolent Crisis Prevention Intervention strategies. Ex. Q. All teachers receive curriculum training from senior staff and regular staff development and trainings are offered. Ex. Q. All mental health providers and related service providers receive training in their area of expertise. Ex. Q. All staff are encouraged to attend professional conferences and to lead trainings in their area of expertise to build collaboration and a transdisciplinary approach across settings. Ex. Q.
[REDACTED] offers home visits, three prescheduled Parent-team conferences, conferences upon request, three progress reports annually, weekly emails with an overview of the week, weekly tutoring updates, and collaboration and communication with outside providers. Ex.
Q. Teams remain in regular daily communication with Parents about their child. Ex. Q, S. The three progress reports are completed by the student's entire team and include their progress, goals, and areas of need across all domains. Ex. Q. Data is collected daily via observation, assessments, and work samples to track and monitor progress across all domains. Ex. Q.
[REDACTED] also provides group Parent counseling monthly and individual Parent counseling as often as Parents would like. Tr. 202. [REDACTED] team provided [REDACTED]'s Parents with regular conferences and phone calls and sent home weekly updates in order to facilitate troubleshooting behavior and challenges that were happening in the community and at home. Tr. 202, 205.
[REDACTED] determines how many students are in each class by analyzing academic assessments, age levels, supports needed, and the rate and pace at which each student was able to learn. Ex. Q; Tr. 172-3. In addition to a lead teacher, behavioral therapists are present in the classroom to help with refocusing, on-target behaviors, data collection, small group instruction, facilitation of breaks, and monitoring sensory diets. Tr. 172-3.
In May of 2019, [REDACTED]spoke with [REDACTED]'s Parents, his outside providers, and teachers, and reviewed his past evaluations and reports to ensure that [REDACTED] would be able to meet [REDACTED] needs and provide an appropriate educational placement for him. Ex. Q. [REDACTED] began attending [REDACTED] in July 2019. Ex. Q.
When [REDACTED] enrolled at [REDACTED], a functional analysis of his behaviors was conducted and an initial BIP was created. Ex. Q. This plan was designed to decrease maladaptive, interfering, and an unsafe behavior. Ex. Q. The goal of the plan was to improve functional communication, compliance, and frustration tolerance to facilitate learning, safety, and global development across all domains and settings. Ex. Q. To create the BIP, baseline data was collected, target behaviors were identified to decrease negative behaviors, and detailed explanations for procedures and protocols were created. Ex. Q. The data analysis reveals the function of the behavior, identifies, and defines replacement behaviors, antecedent interventions, and consequent interventions. Ex. Q.
If [REDACTED] was engaging in a negative behavior, his team created a definition for it on his BIP, including the setting, situation, time the behavior was occurring, and function of the behavior. Tr. 212. They identified appropriate responses and interventions. Tr. 212. [REDACTED]'s entire team was trained on how to utilize his BIP. Tr. 212. His team analyzed and collected data for the plan daily and met weekly to review and update his BIP. Tr. 212-3.
[REDACTED]'s BIP included targeted behaviors to decrease: 1. Noncompliance and work avoidance: any instance of [REDACTED] verbally or physically refusing to complete a task, engage in a non-preferred activity, or follow a direction; 2. Self-injurious behavior: any instance of inflicting harm on himself by hitting, scratching, biting, bringing an instrument to any body part with force, or by otherwise putting himself in harms way; 3. Emotional dysregulation: any instance of crying, yelling or verbal threats; and 4. Property destruction: any instance of damage or attempts to damage personal or public property by breaking, ripping, scratching, coloring, or throwing. Ex.
O. [REDACTED]'s BIP also included targeted behaviors to increase, including compliance with verbal and written directions, emotional regulation, physical regulation, appropriate social interactions, and engaging in coping mechanisms. Ex. O. [REDACTED]'s BIP also included strategies to evoke and reinforce socially appropriate behaviors and decrease problem behaviors. Ex. O.
[REDACTED]'s behavior intervention goals included, utilizing [REDACTED] methodology, 1. Make positive statements about his qualities and accomplishments and 2. [REDACTED] will express his emotions using appropriate language and tone, when encountering frustrating situations, using a self-monitoring system and Functional Communication Training (FCT). Ex. P. [REDACTED] made progress towards expressing his emotions using appropriate language and tone when encountering frustrating situations and making positive statements about his accomplishments. Ex. P. He was continuing to work on using positive statements about himself and expressing his emotions using appropriate language and tone when encountering frustrating situations. Ex. P
Due to [REDACTED]'s multiple diagnosis, he required a direct instruction utilizing [REDACTED] methodology, high repetition and multiple exemplars, a gradual release model for classroom and 1:1 instructions and other instructional approaches with consistent support to access curriculum in both 1:1 and group activities. Ex. Q. [REDACTED]'s BIP was used as a form of [REDACTED] therapy, to incorporate [REDACTED] into his program. Tr. 182-3, 184. The registered behavior technician or licensed behavior analysts present in the classroom ensure that his BIP was being utilized, promoted on target behavior, and decreased maladaptive or unsafe behavior. Tr. 183. In addition, [REDACTED]'s teachers incorporated [REDACTED] methodology into their instructional approaches or used the BIP to incorporate [REDACTED] in concert with their academic instruction. Tr. 181, 185. [REDACTED]'s school psychologist and [REDACTED] therapist also provided support to [REDACTED]'s Parents when he was having difficulty at home. Ex. S.
To monitor [REDACTED]'s progress and to ensure appropriate academic placement, he was assessed regularly, using [REDACTED]. Ex. Q. Based on the outcome of these assessments [REDACTED] was placed in fourth-grade math, [REDACTED], science, and history classes. Ex. Q.
For the 2021-2022 school year, [REDACTED] was [REDACTED] in a homeroom class with seven other age-appropriate peers, ranging from [REDACTED]. Ex. Q. The homeroom class staff consisted of classroom supervisor [REDACTED], [REDACTED], [REDACTED], [REDACTED] Ex. Q. For the 2021-2022 school year, [REDACTED]'s class schedule was designed to foster development across all domains without interfering with classroom activities and to promote generalization across settings. Ex. Q. [REDACTED] also received 1:1 tutoring in ELA and Math from [REDACTED] NYS certified special education teachers after school so that he could stay on pace with his peers in his academic instruction classes for at least 3-5 hours per week. Tr. 192, 194, 206-7.
[REDACTED]'s math class had four students and was instructed by [REDACTED] and supported by two behavior therapists. Ex. Q. [REDACTED] received 1:1 individualized special education direct instruction during his math class. Tr. 191-2. [REDACTED] was instructed at a fourth-grade level using the NYS Common Core aligned Eureka Math curriculum. Ex. Q. [REDACTED] learned how to compare fractions, multiply and divide using fractions; and identify, compose, and decompose fractions. Ex. Q.
[REDACTED]'s ELA class had 10 students and was instructed by Ms. [REDACTED] and supported by three behavior therapists. Ex. Q. Ms. [REDACTED] is a board certified behavior analyst/licensed behavior analyst and used methods of [REDACTED] in the classroom. Tr. 182. [REDACTED] received 1:1 individualized special education direct instruction during his ELA class. Tr. 191-2. [REDACTED] was instructed at a fourth-grade level using the NYS Common Core curriculum Engage NY. Ex. Q. [REDACTED] learned how to write an essay on an assigned topic using a graphic organizer, research a topic using multiple resources to write a narrative piece and consider the perspective of others, and cite the text to support his claims and opinions. Ex. Q. Mr. [REDACTED] tutored [REDACTED] twice a week targeting fourth grade reading fluency and comprehension. Ex. Q.
[REDACTED]'s science and history class had nine students and was also taught by Ms. [REDACTED] and was supported by two behavior therapists. Ex. Q. Methods of [REDACTED] were used in the science and history classrooms. Tr. 182. [REDACTED] was instructed at a fourthgrade level using National Common Core aligned Pearson curriculum. Ex. Q. In Science, [REDACTED] studied life science, energy, animals, and how some animals form and live in groups for survival. Ex. Q. In history, [REDACTED] studied American history, key components of a community, and learned how geography impacts how and where we live. Ex. Q. He benefitted from supplemental materials, including videos and hands on activities, to help him better grasp concepts. Ex. P.
As part of [REDACTED]'s individualized education program at [REDACTED] he received OT, SLT, and mental health counseling with a social worker and art therapist. Ex. Q.
During the 2021-2022 school year, [REDACTED] made progress across all domains with his BIP, scaffolded instruction, visual learning opportunities, and explicit instruction across all classes. Ex. P, Q. He demonstrated improvements in his ability to attend and focus, effectively communicate, comply with directions, follow classroom routines, and maintain emotional and physical regulation throughout the day. Ex. Q. In academic classes, he benefitted from repeated practice to implement newly learned content, 1:1 conferencing to receive and implement feedback, and cumulative review of previously learned content to maintain mastery of previously learned skills. Ex. P. [REDACTED] improved his ability to express his emotions accurately and consistently without engaging in negative self-talk. Ex. P, Q. There was a decrease in emotional and physical dysregulation, refusal, and noncompliance throughout the day. Ex. Q. Although [REDACTED] still engaged in instances of non-compliance, his behavior decreased. Ex. P. [REDACTED] met many short-term objectives and long-term goals in all academic areas and was on pace to complete fourth grade math and ELA instruction by the end of the school year. Ex. Q.
Based on the foregoing, there is not dispute that the preponderance of the evidence in this record amply supports a finding that [REDACTED]'s program for the 2021-2022 school year constitutes an appropriate special education program and has provided him with meaningful educational benefit. [REDACTED] needed a program that could incorporate [REDACTED] and support his emotional needs that were impeding his availability to learn and socialize. Ex. P, Q, S. His program at [REDACTED] was individually designed to support his behavioral, academic, social, and emotional needs. Ex. Q.
Prong 3
In this case, the equitable considerations amply support Parents' claim for relief. Parents have been proactive and cooperative with the DOE and open-minded to suggestions and input. Ex.
S. They participated in the March 2021 IEP meeting and shared [REDACTED]'s most updated progress reports with the CSE. Ex. S. They notified the CSE multiple times when they did not receive [REDACTED]'s IEP. Ex. B, N, S. Even without the IEP, they reached out to the recommended placement to try to determine if it was appropriate for [REDACTED]. Ex. B, N, S. There are no equitable considerations that would operate to preclude or diminish a reimbursement award.
Accordingly, based on a review of the record and the facts mentioned above, I find: (1) the DOE failed to demonstrate that it offered [REDACTED] a FAPE for the 2021-2022 school year; (2) [REDACTED] was an appropriate placement for [REDACTED] for the 2021-2022 school year; and (3) there is no equitable bar to Parents' recovery.
The DOE is hereby ORDERED to reimburse/direct funding for the following: (a) tuition and costs at [REDACTED] School; (b) 5 hours per week of 1:1 special education direct instruction; (c) 4 hours per week of home-and community-based [REDACTED]/behavioral therapy; (d) 2 x 1 hour sessions per week of additional OT services; (e) 2 sessions per week of additional 1:1 SLT; (f) a social skills program 1 hour per week; (g) individualized parent training; (h) transportation or transportation costs.
Dated: March 8, 2023
Ellen Cutler-Igoe
Ellen Cutler-Igoe, Esq.
Impartial Hearing Officer
EXHIBITS MARKED INTO EVIDENCE – OCTOBER 7, 2022
A. Parent Exhibit Description Pages Due process complaint, [REDACTED] 11 pages
B. Ten day letter, [REDACTED] 3 pages
C. Emails between Parents and DOE about IEP, 4 pages February – March 2021Student Enrollment Contract
D. Speech and language progress note, [REDACTED] 4 pages
E. School progress notes, [REDACTED] 20 pages
F. [REDACTED] 10 pages
G. Progress Report, [REDACTED] 25 pages
H. School progress report, [REDACTED] 16 pages
I. Remote Learning Program 4 pages
J. School schedule, [REDACTED] 10 pages
K. School Affidavit of [REDACTED], [REDACTED] 2 pages
L. OT report [REDACTED] 3 pages
M. OT report[REDACTED] 4 pages
N. Email from Parent to DOE, [REDACTED] 1 page
O. Behavioral Intervention Plan, 1/9/2022 18 pages
P. Progress report, [REDACTED] 19 pages
Q. Declaration of [REDACTED], [REDACTED] 8 pages
1. Department of Education IEP, [REDACTED] 20, pages DOE
2. IEP, attendance sheet, [REDACTED] 1 page DOE
3. Prior written notice, [REDACTED] 3 pages DOE
4. [REDACTED] 3 pages DOE
5. [REDACTED] 19 pages DOE
6. Progress reports, 1[REDACTED] 20 pages DOE
7. Social history update, [REDACTED] 3 pages DOE
8. Behavioral intervention plan, [REDACTED] 10 pages DOE
9. Speech language progress notes, [REDACTED] 4 pages DOE
10. Audiologist report, [REDACTED] 14 pages DOE
11. Affidavit of [REDACTED], [REDACTED] 3 pages DOE
EXHIBITS MARKED INTO EVIDENCE – DECEMBER 21, 2022
IMPARTIAL HEARING OFFICER
I. Parent Closing Brief, December 21, 2022 29 pages
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of this decision, the parent and/or the Public-School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act. If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed. An appealing party's request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.