New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 555276 - NYC: 211357

REDACTED

FINDINGS OF FACT & DECISION

Case No.: 211357

Student’s Name: [Redacted]

(referred to as “Student”)

Date of Birth: [Redacted]

District: [Redacted]

Hearing Request by: [Redacted]

(referred to as “Parent”)

School: [Redacted]

(referred to as “Private School”)

Date of Complaint: July 28, 2021

Hearing Dates: September 29, 2022

Actual Record Close Date: October 19, 2022

Decision Date: November 2, 2022

Hearing Officer: Vanessa M. Gronbach, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 29, 2022

For the Student:

[Redacted], Esq., Parent Attorney

[Redacted], Parent

For the Department of Education:

[Redacted], District Representative

ISSUES

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) through the Parents’ Due Process Complaint (“DPC”) filed on or about July 28, 2021, regarding the 2021/22 school year (P-Ex. A)^[1]. The DPC alleged that the District denied the Student a Free Appropriate Public Education (“FAPE”) as required by the Individuals with Disabilities Education Act (“IDEA”) by not providing an appropriate program and placement for the 2021/22 school year (P-Ex. A). The Parent has requested tuition reimbursement / direct payment for their unilateral placement of the Student at the Private School, as well special transportation (P-Ex. A).

PROCEDURAL HISTORY

The undersigned was appointed as hearing officer in this matter on December 23, 2021. A prehearing conference was held on January 5, 2022 to discuss the issues in the case. At that time the matter had been referred for settlement. After several status conferences and a lack of an update on the settlement from the District, a hearing was scheduled for September 29, 2022. On September 9, 2022, the Parent informed me that a new attorney was assigned to the matter for settlement purposes but with no further movement, the Hearing began on September 29, 2022 and was completed on that day (See, Transcripts).^[2] The District did not present a prong I case. The Parent presented exhibits^[3] and two witnesses by affidavit. The record closed on October 19, 2022. There were approximately 8 extensions of the compliance timelines granted by this Hearing Officer, to allow for the settlement process and then to accommodate witnesses.

FINDINGS OF FACT

The Student was a [Redacted] year old student during the 2021/22 school year (P-Ex. P-1). The Student is classified as a student with Autism (P-Ex. P-2). The Student was described as having significant language deficits, toileting and feeding needs, significant deficits in social/emotional abilities, communication, attention, reciprocity, self-direction, sensory processing, fine and gross motor skills, and visual/spatial skills, and an impaired ability to interact with the world around him (P-Ex. P-2). He struggled to remain still and calm and to attend, which interfered with his ability to learn or engage in social interactions (P-Ex. P-2).

The Student was first diagnosed with Autism at two years of age through Early Intervention and was provided with Occupational therapy (“OT”), Physical therapy (“PT”), Speech Language Therapy, and Applied Behavior Analysis (“ABA”) services until he transitioned to the Committee on Pre-school Special Education (“CPSE”) in the spring of 2017 (P-Ex. P-2). The CPSE recommended a 10:1:3 center-based program without ABA services for the 2017/18 and 2018/19 school years (P-Ex. P-2). According to the Parent, based to the CPSE’s failure to provide the Student with an ABA program, his language development was minimal and he demonstrated regression in his social skills and behavior (P-Ex. P-2).

The District’s Committee on Special Education (“CSE”) attempted to evaluate the Student in February 2019 to prepare for his transition to Kindergarten, however no scores were obtained on Intelligence ratings due to the Student’s inability to understand directions and maintain attention during testing (P-Ex. P-2). The CSE was also unable to obtain academic test results and the evaluator noted that the Student’s severe language delays and inattentive behaviors impacted his ability to complete tasks (P-Ex. P-2). In March 2019, the Parent sought out a private developmental evaluation that revealed that the Student’s Verbal Abilities and Visual Reception abilities both fell in the “very low range” and his receptive vocabulary fell in the “extremely low range” (P-Ex. N; P-3). At that time, the Student was also described by his teachers as highly distractible, struggled with remaining engaged and attentive during both self directed and teacher directed activities, struggled with daily living skills, and demonstrated maladaptive behaviors (P-Ex. P-3). The evaluation recommended an ABA program for the Student (P-Ex. N; P-3). The District did not recommend an ABA program for the 2019/20 school year either and the Parent unilaterally placed the Student at the Private School (P-Ex. P-4). On June 21, 2021, the Parent sent the District a notice that the last IEP developed for the Student was in May 2020 and of her intent to re-enroll the Student at the Private School (P-Ex. B).

The District’s CSE met to develop an IEP for the Student on June 23, 2021, for the 2021/22 school year (P-Ex. D; P-1). The CSE did not conduct any updated testing at that time (P-Ex. P-6). The Parent attended the meeting with the Assistant Principal and classroom teacher from the Private School (P-Ex. P-6). The CSE was provided with the Student’s academic annual review report, related service annual review reports, and a Functional Behavior Assessment (“FBA”) and Behavior Intervention Plan (“BIP”) developed by one of the Private School’s Board Certified Behavior Analysts (“BCBA”) (P-Ex. K; L; O-10; P-6). The teachers and providers from the Private School recommended a 12-month, ABA program for the Student and noted that he needed discrete trial learning in order to acquire and maintain skills (P-Ex. O-10; P-6). The Parent requested a one to one paraprofessional to assist the Student with activities of daily living including toileting and hygiene, and to help with his challenging behaviors (P-Ex. P-6). The IEP recommended a twelve-month program in 8:1:1 class, with a group service paraprofessional, individual Speech-Language Therapy three times per week for thirty minutes, group Speech once per week for thirty minutes, individual OT three times per week for thirty minutes, individual PT two times per week for thirty minutes, and Parent Counseling and Training once per month (P-Ex. D-16-17; P-1-2). The Parent disagreed with this program recommendation and that same day sent another notice to the District regarding her intent to re-enroll the Student at the Private School at the District’s expense (P-Ex. C; P-2; P-7). Notably, despite recommending a 12-month school year, the IEP had an implementation date of September 7, 2021 (P-Ex. D-16-17; D-18; P-7). The Parent signed an enrollment contract with the Private School on June 27, 2021 (P-Ex. P-7). Based on the Parent’s annual income, she was unable to pay the full tuition for the 2021/22 school year (P-Ex. P-9).

On July 9, 2021, the Parent received a placement offer at a public school (P-Ex. P-7). The Parent was already familiar with this program as it has been previously recommended (P-Ex. P-7). The Parent made multiple attempts to get in touch with someone at the recommended placement but was never able to reach anyone (P-Ex. P-7).

CONCLUSIONS OF LAW

The Individuals with Disability Education Act (“IDEA”) is comprehensive statutory framework established by Congress to ensure that students with disabilities are afforded FAPE. See, 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 US 49 (2005). A “free appropriate public education consists of educational instruction that is designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child to benefit from the instruction.” Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 188 (1982). In order to demonstrate that FAPE is being provided, the school district must show “that it complied with the procedural requirements set forth in the IDEA, and that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits.” See, Application of Child with a Disability, Appeal No. 05-061, quoting, Rowley at 206. The student's recommended program must also be provided in the least restrictive environment with non-disabled peers. See, Walczak v. Florida Union Free Sch. Dt., 142 F.3rd 119 (2nd Cir. 1998).

Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a 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 (2) 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 generally, Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Rowley, at 206-07).

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. This progress, must be meaningful; i.e., more than mere trivial advancement. Walczak, supra.

In Endrew F. v. Douglas County School District, 580 U.S. __, 14 (2017), the Court held that, “[t]o 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, as a focus on the particular child is at the core of the IDEA. The instruction offered must be “specially designed” to meet a child’s “unique needs” through an “individualized education program.” §§1401(29), (14) (emphasis added), to reflect the fact that a contemplated IEP must be focused on the “particular child that is at the core of the IDEA”. In such case, the school is still required to ensure the student is given an IEP that requires not just academic but also functional progress and, although the goals may differ for students, each child must have an IEP that includes goals and services to enable a child to make both academic and functional progress. The court further stated that an IEP “is not a form document. It is constructed only after careful consideration of the child’s present levels of achievement, disability, and potential for growth” §§1414(d)(1)(A)(i)(I)–(IV), (d)(3)(A)(i)–(iv), and that “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.” The Court in Endrew further stated that, “[t]he IDEA demands more. It requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Although the Supreme Court declined to elaborate on the definition of “appropriate progress” from case to case, it stated that, “the adequacy of a given IEP turns on the unique circumstances of the child for whom it was created.” Finally, The Supreme Court in Endrew declined to hold, as it declined to hold in Rowley, that “every handicapped child who is advancing from grade to grade... is automatically receiving a [FAPE].” Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty v. Rowley, 458 U. S. 176, 203, n. 25 (1982). A Student’s “IEP need not aim for grade-level advancement. But his educational program must be appropriately ambitious in light of his circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives.” Endrew F. v. Douglas 580 U.S. ___ (2017). “It cannot be the case that the Act typically aims for grade-level advancement for children with disabilities who can be educated in the regular classroom, but is satisfied with barely more than de minimis progress for those who cannot.” Id.

Here, the District failed to present a case and therefore failed to meet its burden in demonstrating that FAPE was provided to the Student for the 2021/22 school year. The District failed to provide any evidence regarding how the recommendations in the IEP would support the Student’s detailed needs; how it would implement the recommendations in the IEP; or confirm whether the recommended public school placement could accommodate the Student’s recommended program. Therefore, I find that the District did not provide the Student with FAPE for the 2021/22 school year.

PARENT’S BURDEN

Parents seeking reimbursement “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate” Gagliardo, at 112; see also, M.S. v. Bd. Of Educ., 231 F.3d 96, 104 [2d Cir. 2000]). “Subject to certain limited exceptions, ‘the same considerations and criteria that apply in determining whether the school district's placement is appropriate should be considered in determining the appropriateness of the parents’ placement…’” Gagliardo, at 112, quoting, Frank G. v. Bd. of Educ., 459 F.3d 356, 364 (2d Cir. 2006). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). When determining whether the parents’ unilateral placement is appropriate, ultimately, the issue turns on whether that placement is “reasonably calculated to enable the child to receive educational benefits” (Frank G., 459 F.3d at 364; Gagliardo, 489 F.3d at 115). A private placement is only appropriate if it provides education instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; 34 CFR 300.39[a][1]; Educ. Law § 4401[1]; 8 NYCRR 200.1[ww]; Rowley, 458 U.S. at 188-89).

The Supreme Court of the United States has held that the appropriateness of a unilateral placement turns on whether it is reasonably calculated to enable the child to receive educational benefits, which is not limited to a single dispositive factor. Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982). The Second Circuit cited several factors that may be considered evidence that a child is receiving an educational benefit, including grades, test scores, and regular advancement, yet clarified that courts assessing the appropriateness of a parent’s unilateral placement must “consider the totality of the circumstances in determining whether that placement reasonably serves a child’s individual needs.” Frank G. 459 F.3d at 364; accord Knable ex rel. Knable v. Bexley City Sch. Dist., 238 F.3d 755 (6th Cir.2001) (holding that a unilateral private placement with small classes, where the student made educational progress and grades and behavior improved, was appropriate). Under the IDEA, to meet the requirements for reimbursement, parents do not need to show that a private placement provides every single service required to “maximize their child’s potential.” Frank G. 459 F.3d at 364; See M.S. ex rel. S.S. v. Bd. of Educ., 231 F.3d 96, 102 (2d Cir.2000) (“The test for parents’ private placement is not perfection.”). Parents must only demonstrate that the placement provides “educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.” Frank G. 459 F.3d at 364; Rowley, 458 U.S. at 188–89. “Specially-designed instruction means adapting, as appropriate to the needs of an eligible student under this Part, the content, methodology, or delivery of instruction to address the unique needs that results from the student’s disability.” 8 NYCRR § 200.1(vv). Where “the hearing record shows that [the Private School] did not provide OT or PT...” and the school “provided programs that assisted the student in developing both fine and gross motor skills,” “the lack of these services” is “not sufficient to support a finding that [the Private School] is not appropriate given that these services did not appear to be necessary to the student receiving educational benefits and [Private School] did address the needs to some extent. The student’s primary needs related to his attention and academics, and [Private School]...adequately, if not perfectly, addressed them.” Application of the Board of Education of the Arlington Central School District, Appeal No. 16- 023 at 24-25.

A private school placement must be “proper under the Act” (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school must provide an educational program which meets the student’s special education needs. See, Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129. A parent’s failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (id. at 14). The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.

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

(Gagliardo, 489 F.3d at 112, quoting, Frank G., 459 F.3d at 364-65).

Finding that the District did not provide FAPE to the student during the 2021/22 school year, the burden now shifts to the Parent to prove the appropriateness of the Private School.

After reviewing the testimony and evidence provided, I find that they have met that burden. The Parent’s burden is to demonstrate that the Private School provided educational instruction specially designed to meet the unique needs of the Student, which is supported by such services as are necessary to permit the child to benefit from instruction.

The Principal at the Private School testified by affidavit regarding the school and the Student (P-Ex. O). The Private School services students who are on the autism spectrum, and many have significant language deficits, sensory integration deficits, physical limitations, and demonstrate challenging behaviors (P-Ex. O-2). There are approximately 241 students enrolled in in the Private School, housed in two separate buildings, ages 5 to 21 years old (P-Ex. O-2). The mission statement of the Private School is to meet every student’s needs in an individual manner and to build independence (P-Ex. O-2).

The Private School has three different academic programs: the [Redacted] program for students who have intellectual impairments and who need a very specific applied behavioral analysis program to learn as well as to be available to learn; the [Redacted] program, for students who are average to above-average intellectually and who follow the Common Core curriculum and can be college bound; and a Blended program that has students from both programs, carefully chosen based on intellectual and social ability, who will benefit from each other (P-Ex. O-3). The [Redacted] program focuses on, when students are young, getting them available to learn and as they grow, it becomes a functional academic program, where they meet their needs academically (P-Ex. O-3). They have a variety of methodologies and programs that they use, but ABA is the primary methodology used (P-Ex. O-3). It also includes a vocational/job training component for students in the upper school, which includes internship opportunities (P-Ex. O-3). The [Redacted] students use a social thinking curriculum and collaborative problem solving to address social deficits (P-Ex. O-3).

The Student was recommended for the [Redacted] program when he was first admitted in August 2019 and has remained in the program since that time (P-Ex. O-4). According to the Principal, re-enrollment is offered to students who continue to make progress and the Student was offered re-enrollment for the 2021/22 school year (P-Ex. O-4). The [Redacted] program offers a one-to-one setting: with a teacher, teaching assistant, and several paraprofessionals (P-Ex. O-4). The Student has a one to one paraprofessional to assist with his tendency to elope, tantrum, task avoidant behaviors, self directed behaviors, difficulty connecting and engaging with peers, and his difficulty with activities of daily living including toileting (P-Ex. O-4).

The [Redacted] program is full day, strict, ABA program (P-Ex. O-5). All teachers and staff in the program go through extensive ABA training that is delivered by two BCBAs (P-Ex. O-5). In addition to the ABA methodology of discrete trial learning, they also use other ABA methodologies such as visual schedules, timers, token economy systems and positive reinforcement (P-Ex. O-5). ABA is a science that involves the application of basic behavioral practices (positive reinforcement, repetition, and prompting) and the use of systematic data tracing methods to evaluate the efficacy of the behavioral applications used to reach a desired outcome (P-Ex. O-4). Data based decisions regarding interventions is a hallmark of ABA and sets it apart from many other teaching programs and methodologies (P-Ex. O-4). ABA methodologies are used to facilitate the development of language, positive skills development (such as self-help), appropriate play, and social behavior (P-Ex. O-4). ABA discrete trial teaching is utilized to help students acquire language and academic skills (P-Ex. O-4). ABA programming may also be used to reduce self-injurious behavior, tantrums related to transition communication problems and self-stimulatory behavior that impede the learning process (P-Ex. O-4). ABA is only used as a positive reinforcement strategy at the Private School (P-Ex. O-5). The Student’s aggressive behaviors have decreased due to the use of ABA, and his engagement in learning tasks and his awareness of others has increased due to the consistent use of ABA methodologies (P-Ex. O-5). In addition, the Private School often uses collaborative problem solving which is the verbal piece of teaching the students how to regulate themselves, and staff are also CPI (Crisis Prevention Intervention) trained in case crisis intervention is needed (P-Ex. O-5). Collaborative problem solving is a methodology that uses communication and empathy to teach coping strategies to students (P-Ex. O-5). When students become anxious or dysregulated in some way, CPS focuses on deescalating the student by using specific language that validates how they are feeling, so it takes the edge off their dysregulation, and they understand that someone else understands them (P-Ex. O-5). CPS teaches students how to self-regulate by understanding how they are feeling, why they are feeling the way they are, and then how to cope with those feelings (P-Ex. O-5). CPI is the physical piece, and staff are trained on how to appropriately handle children who have become a danger to themselves or others in order to keep all of our students safe (P-Ex. O-5). Staff are trained in CPS and CPI, and the certified trainers are available to assist the teachers at the Private School (P-Ex. O-5). All teachers and staff members receive training when they are first hired and throughout the school year on the ABLLS, how to develop IEP goals and ABA program books (P-Ex. O-7). The Private School also offers weekly trainings all year on implementation of behavior intervention plans, sensory diets, and on specific curriculum that are being used in the classrooms (P-Ex. O-8).

All students enrolled in the Private School participate in Social Skills classes that are built into their daily schedule (P-Ex. O-6). The goal is to provide students with the skills they need to make friends and have meaningful relationships (P-Ex. O-6). Throughout the year, students also participate in a variety of on-site events that include dances, cultural celebrations, science fairs and holiday celebrations that foster social skills and allow students to experience non-academic related content (P-Ex. O-6). Students also receive life skills training so that students can learn independent living skills including self-care, travel training and ADL skills (P-Ex. O-6). These lessons are also built into the student’s programming (P-Ex. O-6). Lessons are taught in classroom and school environments as well as in the community to ensure mastery and generalization (P-Ex. O-6).

All [Redacted] students have an FBA (completed by the BCBA) and BIP or action plan (developed by the BCBA and classroom teacher), to help them regulate and become available to learn (P-Ex. O-6). The classroom team and related services providers are trained on how to implement the BIPs by the BCBAs (P-Ex. O-6-7). BIPs are periodically reviewed during team meetings with the classroom staff, related service providers and the BCBA, and are revised as needed (P-Ex. O-7). In addition, each student has an ABA discrete trial program book that is developed at the beginning of the year using the Assessment of Basic Language and Learning Skills (“ABLLS”) assessment (P-Ex. O-7). The ABLLS is a comprehensive assessment that measures a student’s level of functioning in academic, language, fine and gross motor, social and adaptive skills (P-Ex. O-7). Students in the [Redacted] program receive an average of three to four hours of discrete trial instruction per day (P-Ex. O-7). Goals are developed using the bi-annual ABLLS assessment and modified with the data acquired from the discrete trials (P-Ex. O-7). Discrete trial training is very data driven and data is taken during and after each discrete trial, and the progress is graphed weekly in order to analyze progress and modify goals and program books as needed (P-Ex. O-7). The BCBAs review and analyzes discrete trial data with classroom teachers on a weekly basis to determine whether program books need adjustment (P-Ex. O-8).

The Principal testified that she is familiar with the Student, participated in his admission, has discussed his progress with his teachers and service providers at team meetings, and participated in the development of his IEP with his classroom teacher in June 2021 (P-Ex. O-9). The Student was placed in the BASE program initially because of his significant cognitive and language deficits, difficulty with socialization skills, sensory integration and some behavior challenges (P-Ex. O-9). The full day ABA program was instrumental in getting him available to learn and diminishing his interfering behaviors and he was placed in the [Redacted] program again for the 2021/22 school year due to his continued need for a full day ABA program and significant support (P-Ex. O-9). He continues to need a one to one paraprofessional due to his tantrum behaviors and physical aggression (P-Ex. O-9). The Student was described as a sweet but very anxious boy who prefers either the company of adults or to be alone (P-Ex. O-9). The Student was beginning to enjoy some supervised social interaction and was spending less time alone (P-Ex. O-9). The Student still needed some prompting to initiate interactions with his peers, required assistance to self-advocate, was easily distracted, engaged in a lot of scripting and echolalia, was hypersensitive to vestibular input, has decreased body awareness, was a very picky eater with a limited diet, and needed frequent sensory stimulation and sensory breaks in order to focus and attend (P-Ex. O-9).

The Student would also become very anxious when one of his peers was having a difficult time and would himself become dysregulated when he observed a peer becoming dysregulated (P-Ex. O-10). He exhibited tantruming behaviors such as crying, yelling and throwing himself to the floor when he was denied a preferred item or was asked to participate in a non preferred task or activity (P-Ex. O-10). When upset, he would also engage in physical aggression, including pulling on the clothing of his peers and staff members, or throwing classroom items without regard for others’ safety, and uses inappropriate language when he was upset (P-Ex. O-10). ABA continued to be very beneficial for him with academics and in reducing his interfering behaviors and he benefited from the use of token boards, a first/then board, timers, visual schedules and frequent movement/sensory breaks (P-Ex. O-10).

His classroom teacher developed the ABA program books for all the students in the classroom, developed their IEP goals for the annual review meetings, participated in their annual review meetings, delivered discrete trial instruction, and monitored the students’ progress (P-Ex. O-11). His teacher also communicated with the families of the students through a daily communication notebook, developed progress reports, and collaborated with the related service providers and administration (P-Ex. O-11). The Private School also offered related services of counseling, physical therapy, occupational therapy, speech and language therapy, and parent training (P-Ex. O-8).

For the 2021/22 school year, the Student received Speech Language therapy four times per week individually (P-Ex. O-11). The Student required a great deal of praise and reinforcement in order to maintain on task because he is self directed and easily distracted (P-Ex. O-11). His ability to engage with peers, with prompting and support, continued to improve (P-Ex. O-11). In addition, his use of echolalia was reduced (P-Ex. O-11). The Speech therapist worked with the Student on improving his receptive and expressing language skills, by increasing the length of his utterances and responding to specific “who” questions (P-Ex. O-11). She also worked with him on engaging in cooperative play (P-Ex. O-11). The Student made progress with all of his speech goals, the length of his utterances increased and he began to show more interest in interactions with peers and cooperative play (P-Ex. O-11).

The Student received Occupational Therapy three times individually (P-Ex. O-11). The Student worked on sensory processing, fine motor skills, visual motor skills and self-help skills (P-Ex. O-11). His self stimulatory behaviors remain significant, but he was responsive to sensory input that helped reduce his sensitivity and improve his body awareness (P-Ex. O-11). Writing was still a non preferred activity for the Student and one in which he continued to need a significant amount of support (P-Ex. O-11). The Student was slowly progressing with all of his OT goals, and his sensory diet, implemented by his OT, in collaboration with his classroom teacher, was very beneficial (P-Ex. O-11).

The Student received Physical Therapy two times per week individually (P-Ex. O-11). The Student navigated slowly around the school and was easily distracted by his environment, but he improved in his gross motor skills generally as well as his ability to navigate safely (P-Ex. O-11). He continued working on rebuilding his core strength and balance after a surgery and lengthy recovery process (P-Ex. O-11-12).

The Student’s BIP was developed at the beginning of the 2019/20 school year and then updated every year, with a new BIP developed on June 7, 2021 (P-Ex. K; O-12). The BIP addressed his tantrumming behaviors including dropping to the floor, crying and yelling, his use of inappropriate language and his aggressive behaviors which include pulling his peers’ clothing and throwing classroom items (P-Ex. O-12). His challenging behaviors were addressed with verbal praise, a visual schedule, classroom rules and expectations, individualized support, independent work areas, frequent movement breaks, timers, a first-then board and a token economy system that he used for 5 minute intervals (P-Ex. O-12). The Student responded well to his BIP, and while he does still engage in task avoidant behaviors, he could usually be redirected to task (P-Ex. O-12).

The Student’s academic skills were emerging, and he needed a lot of scaffolding and support (P-Ex. O-12). He benefited from the one to one discrete trial learning and improved in his ability to follow directions and walk on a line during group activities (P-Ex. O-12). During reading instruction, his interest in books improved and his letter-sound correspondence improved (P-Ex. O-12). Overall, the Student made a tremendous amount of progress over the course of the 2021/22 school year and met nearly all of his goals, as indicated in his progress report (P-Ex. O-12). The Student continues to need ample support in the area of writing but was able to trace his name as well as the numbers from one to ten (P-Ex. O-12). In math, he worked on adding single digits, completing mathematical patterns and counting with one to one correspondence (P-Ex. O-12). His overall number sense improved over the course of the school year (P-Ex. O-12). The Private School also worked on spontaneous language to help the Student communicate with both teachers and peers (P-Ex. O-12). He was able to mirror play with peers, but they were still working on the ability for him to initiate sustained cooperative play with peers and make conversation with them (P-Ex. O-12-13). During morning meetings, they worked on his goal of making eye contact, greeting people, and responding to questions (P-Ex. O-13). They also worked on bathrooming skills and practiced hygiene (P-Ex. O-13). The Student made progress in all of those areas (P-Ex. O-13).

With respect to the student’s progress at the Private Schools, a finding of progress is not required for a determination that a student's unilateral placement is adequate, but it is a relevant factor to be considered (Gagliardo, 489 F.3d at 115, citing Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21, 26-27 [1st Cir. 2002]). Here however, as a result of the special education methods and supports provided, the Student made progress, academically, socially, emotionally and behaviorally. Progress was measured with the collection of behavioral data, assessments of the student’s skills, and progress reports (P-Ex. O-13). Comparing the Student’s 2019 ABLLS data to his 2021 ABLLS data, it was clear that he has progressed in nearly all areas (P-Ex. O-13). His largest area of weakness is still in speech and language processing, which impacts all other areas, especially his social interactions (P-Ex. O-13). The Student still has a lot of challenges and needs quite a bit of one to one support, but he has made tremendous progress since he entered the Private School and he continues to make progress (P-Ex. O-14). The Student responded well to the ABA methodologies, his daily one to one discrete trials, his individualized behavior intervention plan, and his individual sensory diet (P-Ex. O-14). Based on all of the above, I find that the Private School was an appropriate placement for the Student for the 2021/22 school year.

EQUITABLE CONSIDERATIONS

Equitable considerations are relevant in determining relief “because the authority to grant reimbursement [under the IDEA] is discretionary.” Frank G., 459 F.3d at 363-64 (quoting, Burlington, 471 U.S. at 374). In balancing the equities, I find in favor of the Parent. To the extent possible, the Parent has participated in all aspects of the special education process and communicated their concerns with the District. In contrast, the District failed to provide the Student with a placement prior to the beginning of the 12-month, 2021/22 school year.

DECISION

Based on a review of the record and the facts mentioned above, I find that the District failed to provide the Student FAPE during the 2021/22 school year. I further find that the Parent’s unilateral placement at the Private School was appropriate and that the Parent is entitled to reimbursement. I have considered the Parent’s other requests for relief in the Due Process Complaint and they have been denied for lack of evidence in the record.

ORDER

Based upon the Findings of Fact and Conclusions of Law, it is hereby ordered:

ORDER THAT, the District shall reimburse the Parent and/or directly pay the Private School for all tuition and fees for the Student’s unilateral placement at the Private School for the 2021/22 school year, and provide the Student with special transportation.

SO ORDERED

DATED: November 2, 2022

Vanessa M. Gronbach

Vanessa M. Gronbach, Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

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

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

An appealing party's request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.

EXHIBITS

District Exhibits

NONE

Parent Exhibits

Ex. Description Date Pages

A Due process complaint 7/28/21 15 pages

B Ten-day notice 6/21/21 12 pages

C Amended ten-day notice 6/23/21 13 pages

D IEP 6/23/21 23 pages

E Enrollment contract 6/27/21 two pages

F Tuition affidavit 11/8/21 one page

G Attendance 21/22 two pages

H Class schedule 21/22 one page

I Program description undated two pages

J Progress report 8/29/22 nine pages

K BIP from private school 6/7/21 five pages

L FBA from private school 6/7/21 five pages

M Parent tax return 2021 29 pages

N Developmental evaluation 3/21/19 13 pages

O Affidavit of Principal 9/22/22 14 pages

P Affidavit of parent 9/22/22 nine pages

Footnotes

[1] Exhibits shall be referred to as follows: “P” for Parent Exhibit; “D” for the District’s or Department’s Exhibits.

[2] Reference to the Transcript shall be referred to as “T”.

[3] A more detailed list of exhibits is attached.