New York City Department of Education, Impartial Hearing Decision

REDACTED

FINDINGS OF FACT & DECISION

Case No.: 211578

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: August 11, 2021

Hearing Dates: October 27, 2022

Actual Record Close Date: November 28, 2022

Decision Date: December 4, 2022

Hearing Officer: Vanessa M. Gronbach, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 27, 2022

For the Student:

[Redacted], Esq., Parent Attorney

[Redacted], Parent

[Redacted], Director at Private School

For the Department of Education:

[Redacted], Esq., District Representative

[Redacted], Psychologist

[Redacted], Principal

ISSUES

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) through the Parents’ Due Process Complaint (“DPC”) filed on or about August 11, 2021, regarding the 2020/21 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 2020/21 school year (P-Ex. A). The Parent has requested tuition reimbursement / direct payment for their unilateral placement of the Student at the Private School (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 10, 2022 to discuss the issues in the case. After several status conferences and a lack of an update on the investigation from the District, a hearing was scheduled for October 27, 2022 and was completed on that day (See, Transcripts).^[2] The District presented documents and two witnesses. The Parent presented documents^[3] and two witnesses. The record closed on November 28, 2022. There were approximately nine extensions of the compliance timelines granted by this Hearing Officer, to allow for the District to investigate the matter and then to accommodate witnesses.

FINDINGS OF FACT

The Student was a [Redacted] year old student who attended the Private School during the 2020/21 school year (P-Ex. A). The Student is diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”), Language Disorder, and Developmental Coordination Disorder (P-Ex. A-1; I-1). The Student is classified as a student with an Other Health Impairment (D-Ex. 1). The Student was described as having muscle weakness in both hands that negatively affected his fine motor skills, balance and coordination weaknesses, social emotional challenges, struggles with self-regulation, attention, focus, poor frustration tolerance, aggressive and impulsive behaviors (P-Ex. A-1).

The Parent testified through affidavit that the Student first began receiving special education services through Early Intervention (P-Ex. I-1). At that time, it was suggested that the Student may have autism and he began attending an ABA program with related services through preschool (P-Ex. I-1). During the 2019/20 school year, while in preschool, the Student attended a 6:1+1 integrated classroom and struggled with focus, attention, self-regulation, and inappropriate behavior (including self-directed, impulsive, defiant, and oppositional behaviors) (P-Ex. I-1). His defiance could easily turn into full blown tantrums, including crying, kicking, pushing, and other behaviors such as going under the table, grabbing and throwing things (P-Ex. I-1). The Student required supports to address his behaviors and self-regulation challenges and needed a very high level of individualized attention, instruction, and support in order to learn, including consistent 1:1 support within the classroom to function appropriately (P-Ex. I-1).

On April 7, 2020, the Parent participated in an IEP meeting by telephone (P-Ex. I-1).

The School Psychologist (“SP”) testified that she also participated in the April 7, 2020 IEP meeting for the Student (T. 47-48). The SP testified that the meeting was a turning-five reevaluation (T. 49). According to the Parent, prior to the meeting, the CSE did not conduct new evaluations, nor did they observe him in his classroom (D-Ex. 8; 9; P-Ex. I-1). The SP testified that the documents reviewed to generate the IEP were the GARS, Vineland, speech update, teacher update, OT update and PT update (D-Ex. 3; 4; 5; 6; T. 51).

During the IEP meeting, staff from the preschool and the Parent stressed that the Student continued to need a very high level of individual attention, instruction, and support in order to function appropriately and learn (P-Ex. I-2). The Student’s disruptive behaviors were discussed and his need for continual 1:1 support to address his behaviors that interfere with his learning (P-Ex. I-2). His need for behavior modifications and sensory supports were also discussed (P-Ex. I-2). The IEP indicated that his level of self-direction impeded his ability to engage and converse appropriately with peers, that the Student had attentional delays, struggled with focus, needed support maintaining prosocial behaviors throughout the day, and reminders to stay in his own personal space (D-Ex. 1). The IEP further noted that the school spoke about the Student’s aggressive and maladaptive behaviors, such as hiding under the table, trying to escape, kicking chairs and withdrawing when upset, and requested 1:1 individual counseling twice per week (D-Ex. 1-5; P-Ex. I-2). The IEP noted that the Student received play therapy twice per week to address social and play skills (D-Ex. 1-5).

According to the SP, the Parent’s concerns were that academically he may not understand what he was learning, that he may have auditory process difficulties, and she was concerned with his attention, staying focused and remaining on task (T. 53-54). In discussing goals, the SP stated that typically goals are provided by the school and then okayed or modified to make them appropriate for kindergarten (T. 60). The SP could not remember if all of the goals were discussed and testified that sometimes they are reviewed in detail and sometimes they are glossed over as they discuss delays (T. 62). The SP testified that there were no behaviors concerns in the teacher reports and that he was sociable (T. 72). However, the Student was receiving behavior supports in his preschool as well as counseling, which was discontinued by the IEP team (T. 74, 86-87).

The CSE recommended a 12:1+1 class for academic classes with related services of counseling 1x30 minutes per week; individual OT 2x30 minutes, and speech 2x30 minutes one individual and one group per week, with specialized transportation (D-Ex. 1-16-17, 1-23).

The Parent was concerned that this class would be too large and overwhelming (P-Ex. I-2). Even in a smaller class setting with supports the previous school year, the Student still struggled and had a lot of challenges, including significant difficulties with behavior and emotional regulation (P-Ex. I-2). The Parent stressed that he needed a very high amount of 1:1 support to address his behavioral and self-regulation needs and to function appropriately and she asked the CSE to recommend a 1:1 paraprofessional to support him; and the preschool staff also stressed his continued need for counseling twice per week however, neither were recommended (P-Ex. I-2).

The Parent received a copy of the IEP and school location letter for the 2020/21 school year (P-Ex. I-2). The Parent noticed that the Prior Written Notice indicated that the CSE had relied upon a classroom observation from March 26, 2020, which could not have been correct since the school was closed at that time due to COVID and the Parent never received a copy nor was it discussed at the meeting (P-Ex. I-2). The Prior Written Notice also referenced a psychoeducational evaluation from April 7, 2020, the day of the IEP meeting, however no testing took place on that day (P-Ex. I-2). The IEP also referenced GARS testing results and a Social History from March 2020, neither of which were not provided to the Parent (P-Ex. I-2). The Parent was also concerned that the IEP failed to provide the Student with behavioral and self-regulation supports (P-Ex. I-3). According to the Parent, the IEP inaccurately stated that the Student did not need any behavioral supports or a behavioral plan (P-Ex. I-3). Since the CSE did not evaluate the Student’s behaviors, the Parent was unsure how the CSE determined that he did not need behavioral support (P-Ex. I-3).

Despite her concerns, the Parent was willing to consider the 12:1+1 program (P-Ex. I-2). Due to the pandemic, the Parent was unable to physically visit the recommended public school, but she was able to speak the Principal over the phone (P-Ex. I-3). Based on her conversation with the Principal she was concerned that the public school would be unable to implement his IEP (P-Ex. B; I-3). Specifically, the Parent was told that the proposed class was a bridge class of Kindergarten and 1st graders combined into one class and that there was a range of academic functioning, classifications and learning challenges; the science class was a “cluster” class and that cluster teachers in the school were usually not special education teachers; and that the Student would not have special education instruction and support throughout the entire school day (P-Ex. I-3-4). The Parent was concerned that the Student would not have peers functioning on a similar level and who would be appropriate models for his behavior and social skills (P-Ex. I-4). The Parent was also concerned about the school’s ability to address his behavioral and social/emotional needs (P-Ex. I-4). When she described his behavioral challenges to the Principal, the Principal’s response was vague and she said they “could handle it” despite the lack of a behavioral plan and adequate supports for behavior in his IEP (P-Ex. I-4). In addition, the Parent was concerned about the provision of instruction and related services during the pandemic (P-Ex. I-4). She was told that instruction would likely be provided through a blended learning model with students in person two to three days a week on an alternating schedule and remote the rest of the week, however the remote instruction would have a minimum amount of live instruction (P-Ex. I-4).

The Principal of the recommended public school testified that the Student would have received an education at the public school that would have implemented his IEP (T. 95-96). They had the recommended class and services, and experienced teachers and providers (T. 96). Based on her review of the IEP, the Student had social, emotional and behavior management needs and was below grade level in some academic areas (T. 96). The Public-School Principal testified that they create individualized instruction to meet the Student’s needs to allow him to be successful and would have been able to implement his goals in the program (T. 96-101).

They had a 12:1:1 class program for only kindergarten students during the 2020/21 school year, however although there was certified special education teacher for the 12:1:1 class, the science teacher was not a special education teacher (T. 101-102, 103). There was, however, a special education teacher that works with the science teacher (T. 102). The Parent had been told at the time that it was a bridge class for kindergarten and 1st grade students, but the class roster had not been set and it ended up being just kindergarten class in September (T. 104). The Public-School Principal tried to reassure the Parent that they meet students where they are and receive instruction at their level (T. 104). To address behavior needs, if a student requires a behavior intervention plan (“BIP”), they will consult with the parent or staff and then conduct a Functional Behavior Analysis (“FBA”) and BIP that meets the needs of the student (T. 105). The Principal also testified that they could address the Student’s sensory needs through an occupational therapist and could provide sensory diets and a sensory gym (T. 106, 109). The Parent was also concerned with the size of the school, with approximately 550 students, which would have been too overwhelming and would have exacerbated his anxiety and behavioral challenges (P-Ex. I-4). However, the Principal stated that students in the special class stay in their class except for lunch, recess and if it is too overwhelming, they make other provisions for those students (T. 107-108).

On August 24, 2020, the Parent sent a letter to the CSE reiterating her concerns with the recommendations and proposed placement (P-Ex. B; I-4). The Parent was concerned that the Student would be going from a small 6:1:1 class with a high level of support and still had behavior challenges, to a larger 12:1:1 class with less special education supports throughout the day (P-Ex. B-1). The Parent was concerned that the IEP did not adequately describe the Student’s needs, specifically his behavior challenges (P-Ex. B-2). The Parent also shared that the Student had regressed during remote instruction (P-Ex. B-1). The Parent asked the District to let her know if she had misunderstood anything and to provide her with additional information that could address her concerns (P-Ex. B-4; I-4-5). She also notified the District of her intent to place the Student in the Private School (P-Ex. B-4). The Parent did not receive any response to her letter (P-Ex. I-5).

The Parent signed an enrollment contract with the Private School for his attendance for the 2020/21 school year (P-Ex. J). The Parent is fully responsible for the tuition and made some payments toward the tuition however the Parent indicated that they were unable to pay the rest due to their limited financial means (P-Ex. I-5; K; L; M).

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 presented witnesses who testified about the IEP and the proposed public school. Although the witnesses discussed the recommendations in the IEP and how it would be implemented in the public school, I find that the District failed to meet its burden in demonstrating that FAPE was provided to the Student for the 2020/21 school year. At the time of the IEP meeting, and at the time the Parent met with the Principal from the Private School, it was unclear if the services could be provided in the recommended public school. The Parent was told that the science teacher was not a special education teacher (T. 101-102, 103). The Parent was also told that the 12:1:1 class was a bridge class for kindergarten and 1st grade students (T. 118).

Additionally, the IEP did not address the Student’s behavior concerns. The SP testified that that there were no behavior concerns. However, when asked to review the IEP, she agreed that there were in fact behavior challenges (T. 74, 84). The Principal of the public school also confirmed that based on her reading of the IEP the Student had social, emotional and behavior management needs (T. 96). The IEP was clear, that his level of self-direction impeded his ability to engage and converse appropriately with peers, indicated that the Student had attentional delays, struggled with focus, needed support maintaining prosocial behaviors throughout the day, and reminders to stay in his own personal space (D-Ex. 1). The IEP further noted that the school spoke about the Student’s aggressive and maladaptive behaviors, such as hiding under the table, trying to escape, kicking chairs and withdrawing when upset, and requested 1:1 individual counseling twice per week (D-Ex. 1-5). The IEP noted that the Student received play therapy twice per week to address social and play skills and counseling and despite the Parent’s request for counseling to continue twice per week, the IEP only recommended it once per week (D-Ex. 1-5). Despite this information, the IEP did not recommend any positive behavior interventions, supports or strategies to address his behaviors or a BIP (D-Ex. 1-9).

Under New York regulations, a CSE must, “in the case of a student whose behavior impedes his or her learning or that of others, consider strategies, including positive behavioral interventions, and supports and other strategies to address that behavior.” 8 NYCRR § 200.4(b)(3)(i). These strategies include an FBA, which is “the process of determining why a student engages in behaviors that impede learning and how the student’s behavior relates to the environment.” Id., § 200.1(r). FBAs are conducted “as necessary to ascertain the physical, mental, behavioral and emotional factors which contribute to the suspected disabilities.” Id. § 200.4(b)(1)(v). An FBA must include an “identification of the problem behavior” and “the formulation of a hypothesis regarding the general conditions under which [the] behavior usually occurs.” Id. § 200.1(r). Where the student’s behavior impedes his learning or that of his peers, the CSE should create a BIP that sets out “intervention strategies to be used to alter antecedent events to prevent the occurrence of the behavior, teach individual alternative and adaptive behaviors to the student, and provide consequences for the targeted inappropriate behavior(s) and alternative acceptable behavior(s).” Id. § 200.22(b)(4)(ii).

Here, the evidence shows that the Student had demonstrated behavior issues which were indicated in the IEP, the GARS and the social history (D-Ex. 1; 3; 4). The Student’s behavior concerns were also raised at the IEP meeting and yet the IEP team did not offer to conduct an FBA or BIP. Although the Public-School Principal testified that they could do an FBA if it was necessary, that is not enough. The case law is clear that “a failure to conduct an FBA... does not rise to the level of a denial of a FAPE if the IEP adequately identifies the problem behavior and prescribes ways to manage it.” R.E., 694 F.3d at 190; see also A.C., 553 F.3d at 172 (failure to perform FBA did not render IEP legally inadequate in light of IEP's provision of strategies to address child’s behavior); T.Y., 584 F.3d at 419 (“substantial evidence in the record” of ways to address problematic behaviors provided basis for SRO to conclude that, despite failure to conduct an FBA or a BIP, a FAPE was not denied). However here, the District failed to demonstrate that the program recommended by the District’s CSE would adequately identify the Student’s problem behaviors and appropriately address those behaviors and manage them. Therefore, for all the reasons indicated above, especially the District’s failure to conduct an FBA or develop a BIP, I find that the District did not provide the Student with FAPE for the 2020/21 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 2020/21 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 Director of Related Services / Speech Language Pathologist / Language Curriculum (“Director”) of the Private School testified regarding the Student and the Private School (P-Ex. H). As Language Curriculum Coordinator she administers and analyze students’ speech-language assessments, prepares and implements language programming, and trains teachers on incorporating language-based lessons in the classroom (P-Ex. H-1). As Director of Related Services, she collaborates with related services providers, review evaluations and progress reports, and work with the School Psychologist and administration to implement supports such as behavior plans (P-Ex. H-1-2). She also participates in team meetings for each student, which are attended by classroom teachers, teacher assistants, and related service providers (P-Ex. H-1).

The Private School is a non-graded, not-for-profit, coeducational school for students aged 5 to 15 years old, founded to help children with language-based learning disabilities (P-Ex. C; H-2). Fifty-four students attended the school during the 2020/21 school year (P-Ex. H-2). Individualized programs offer opportunity for academic achievement, emotional enrichment and enables students to become active partners in their own development (P-Ex. C). Students enrolled at the Private School share common learning disabilities and social-emotional challenges (P-Ex. H-2). The student population includes children with language processing disorders, dyslexia, Attention Deficit Hyperactivity Disorder (“ADHD”), Executive Function Disorder, Auditory Processing Disorder, and other challenges (P-Ex. H-2).

The curriculum is based on New York State Common Core standards, with accommodations developed for each student’s needs (P-Ex. H-2). A multidisciplinary approach is used, and modifications are made for each student based on his or her educational, emotional, and functional levels (P-Ex. H-2). Teachers are trained in and use the Orton-Gillingham Approach, a multisensory, structured, sequential way to teach literacy when reading, writing, and spelling do not come easily to an individual (P-Ex. H-2). The Private School also uses other instructional methodologies, including, but not limited to, The Wilson Reading System®, Reading A-Z, Lindamood Bell Phoneme Sequencing (LiPS®) program, and Verbalizing & Visualizing® (P-Ex. H-2). Teachers provide direct and systematic instruction in small groups, 1:1 instruction when needed, behavior interventions, multi-modality input (with visual/auditory/tactile methods), review and repetition, incremental teaching, scaffolding, mnemonics, and feedback (P-Ex. H-2). Each new student in the program is provided with formal and informal assessments in speech and OT to gauge the students’ abilities (P-Ex. H-3). When grouping students into specific classrooms, they consider each child’s age, academic and behavioral needs, and social and emotional development (P-Ex. H-3).

Before the start of each school year, all teachers participate in 4 full days of teacher/staff training and hold formal training sessions for teachers on a monthly basis (P-Ex. H-2). In addition, twice per year, staff undergo a full day of professional development (P-Ex. H-2). The Private School also provides presentations and training for parents/guardians to enable carryover of skills and supports to the home and community environments (P-Ex. H-3).

The Student began attending the Private School in September 2020 and attended the program for the entire 2020/21 school year (P-Ex. H-3). At the beginning of the 2020/21 school year the Student presented with delays in expressive, receptive and pragmatic language, executive functioning, and social skills (P-Ex. H-4). He struggled with sensory processing, fine motor, gross motor, graphomotor, and motor planning skills (P-Ex. H-4). He also had social/emotional and behavioral challenges, including distractibility, difficulty with attention and focus, difficulty regulating his emotions, and impulsive, hyperactive, self-directed, inattentive, and avoidant behaviors that interfered with his learning and the learning of his classmates (P-Ex. H-4). When triggered, the Student would push, kick, scream, hide or run away (P-Ex. H-4). Of grave concern was his ongoing risk of elopement, as he would walk or run away from the group or remain in place when the class moved on (P-Ex. H-4). When asked to engage in any activity that required mental exertion, the Student presented with avoidance behaviors (P-Ex. H-4).

With respect to his speech and language abilities, the Student’s inability to curtail himself when speaking was a major concern at the start of the 2020/21 school year (P-Ex. H-4). The Student was highly perseverative, was unable to express his wants, needs, or feelings, in a clear succinct manner, which often led him to feel very frustrated (P-Ex. H-4). In addition, he presented with articulatory deficits including an interdental lisp and inability to coordinate inhalation and phonation (P-Ex. H-4). His pragmatic social communication skills were notable for his difficulty with focus and attention, following directions and classroom routines, transitioning, turn taking, using politeness markers, initiating tasks, initiating conversations and maintaining topics, and asking for repetitions and/or clarification (P-Ex. H-4). He also presented with oromotor deficits including decreased strength and range of motion of the tongue, lips and jaw, an open mouth posture when at rest, and immature swallow patterns such as suckling food (which is generally inhibited by age twenty-four months) (P-Ex. H-4). He was unable to engage in imaginary play with peers, and, as a result, generally engaged in solitary or at most parallel play (P-Ex. H-4).

At the start of the school year, the Student could not organize his thoughts, wants or needs in a sequential fashion and he went from topic to topic in speaking and his train of thought was impossible to follow (P-Ex. H-4). The Student could respond to yes/no questions but had difficulty with other “WH'' questions and with maintaining a dialogue or conversation, as he was disinterested in what others had to say (P-Ex. H-4). He generally did not turn to face the person who he was speaking to (P-Ex. H-4-5). He also struggled with following simple one-step directions (P-Ex. H-5).

Assessments conducted by the Speech Pathologist, Occupational Therapist and School Psychologist at the Private School revealed that when information is presented only in an auditory form, the Student struggled to retain that information, he had difficulty with attention and focus; social, emotional, and sensory processing deficits; midline awareness; difficulty with fine motor skills (including poor grasp, handwriting, and letter formation); difficulty with head isolation; poor laterality and directionality; and decreased standing balance (P-Ex. H-5). He also had challenges with emotional regulation, poor sensory integration, and dis-coordinated breathing/speaking (P-Ex. H-5). The Student also had poor impulse control, social skills, behavior, and difficulty problem solving (P-Ex. H-5). He was observed to engage in attention gaining behaviors and constantly sought approval and affirmation (P-Ex. H-5). The Student was often anxious, demanded that his needs be met immediately, often engaged in impulsive, repetitive and sensory seeking behaviors, struggled to regulate himself and sought attention from his peers by engaging in behaviors that were disruptive to the class (P-Ex. H-5). When upset by others, he would become explosive and engage in physically aggressive behaviors, which disrupted his own instruction as well as his classmates’ learning and were unsafe (P-Ex. H-5).

At the beginning of the 2020/21 school year, the Student did not respond to normative stimuli such as his name being called, his classmates moving from one area of the classroom to another, or the school bell ringing (P-Ex. H-5). This was often a result of his self-directedness (P-Ex. H-5). During class time, he would often wander around the classroom and need support to reengage (P-Ex. H-5). The Student had minimal awareness of cause and effect, which resulted in harmful or destructive behaviors (P-Ex. H-5). The Student was unable to read social cues or interpret the expectations of various settings, and because he was self-directed, he had difficulty with cooperative play (P-Ex. H-5-6). The Student had difficulty complying with classroom and school rules, demonstrated poor executive functioning skills in the areas of impulse control, flexible thinking, self-monitoring, organization, concentration, analysis and processing of information, and problem solving (P-Ex. H-6). He had difficulty learning new information and teachers could only present minimal amounts of information to him at a time (P-Ex. H-6). However, even with incremental instruction, the Student had difficulty retaining information, forming associations, and analyzing, synthesizing, applying, and generalizing classroom lessons (P-Ex. H-6). The Student was provided with constant and consistent repetition and reinforcement, as well as multi-modality instruction (P-Ex. H-6). The Student needed 1:1 adult support throughout the day to provide the continuous prompting and redirection he required, as well as the behavioral and social/emotional support necessary to ensure that he could learn and remain safe, and that he would not harm others (P-Ex. H-6).

During the 2020/21 school year, the Student was placed in a cohort group of eight students, which broke down into smaller groupings for individual subjects, based on the students’ respective abilities (P-Ex. H-6). The Student was provided with Orton-Gillingham, direct and systematic instruction, Verbalizing & Visualizing®, behavior modification techniques, multi-modality input, review and repetition, incremental teaching, scaffolding, mnemonics, and feedback, as well as individual instruction (P-Ex. H-6). They also implemented individualized strategies throughout the school day to address his attentional and social-emotional challenges, and his inattentive, impulsive, and unsafe behaviors, in order to support his ability to function appropriately and learn (P-Ex. H-6). They provided the Student with a 1:1 paraprofessional throughout the day during the school year to support his behavioral and emotional regulation, so that he could function in the classroom setting (P-Ex. H-6).

The Private School also developed and provided him with an individualized behavior plan which was implemented throughout the school day to address his behavioral and emotional regulation challenges (P-Ex. H-6-7). Elements of the plan included use of Zones of Regulation to increase metacognition of behaviors, behavior charts to help identify his emotions, and classroom reminders to reduce transitioning challenges (P-Ex. H-7). An individualized sensory diet was also developed and administered daily, as well as quick sensory input, administered as needed, for regulation, attention, and focus (P-Ex. H-7). The sensory plan helped with regulation and an alert system to keep him focused (P-Ex. H-7). He received positive feedback for appropriate behaviors, and a token economy and positive behavior support system were in place for his social-emotional needs (P-Ex. H-7). The Student received a visual schedule at the beginning of the school day and later during the day if necessary to help him organize himself and diminish anxiety related to transitions (P-Ex. H-7). Throughout the school year, staff conferred with the Parent for parent training to facilitate carryover of the Student’s behavioral plan into the home environment (P-Ex. H-7).

The sensory diet included a variety of exercises which helped improve his regulation, attention, focus, brain function, serotonin release, body awareness, and balance (P-Ex. H-7). Other exercises were designed to provide proprioceptive, tactile, and vestibular input to help him feel calm and regulated (P-Ex. H-7). The Student engaged in exercises that worked on improving fine motor strength coordination, and laterality (P-Ex. H-7). A personalized writing program was developed and incorporated throughout the day to support his fine motor and graphomotor skills (P-Ex. H-7). Quick sensory input included targeted exercises and deep pressure massaging to provide proprioceptive input that would help the Student with regulation, focus, and attention (P-Ex. H-7). The Student’s behavioral plan, combined with his sensory diet and provision of quick sensory input, as well as provision of a 1:1 paraprofessional throughout the day, were effective in helping him increase his ability to remain focused and regulated, which helped him participate in learning for longer periods of time over the course of the 2020/21 school year (P-Ex. H-7). In addition, consistent availability of these supports resulted in a decrease in his disruptive, impulsive, and unsafe behaviors over the course of the year (P-Ex. H-7). Academically, the Student was placed in a reading class grouped with four other students who were functioning on a similar level for reading skills (P-Ex. H-8). They worked on developing reading fundamentals, phonemic awareness, auditory processing, phoneme/grapheme relationships, and blending letters to build words (P-Ex. H-8). With the supports and strategies provided the Student made progress in his reading deficits (P-Ex. H-8). In ELA the Student was grouped with seven other students where they worked to develop their language skills through thematic units (P-Ex. H-8). At the beginning, he struggled with following classroom rules and routines, had difficulty following directions, asking and responding to questions, retelling stories, sequencing events, associating information, analysis, synthesis, categorizing and classifying, but by the end of the school year, with the use of hands-on learning, prompting, visual cues, modeling and explicit and systematic instruction, as well as the continuous support of his 1:1 paraprofessional, the Student made progress (P-Ex. H-8). His vocabulary grew, he learned more about grammar and syntax, his ability to express his wants and needs improved, he learned about perspective taking and following directions, and was able to sequence stories read or described using visual and auditory prompts (P-Ex. H-8). The Student’s Hebrew Reading course had five students in the class, and the teacher used the OG method and incorporated multisensory, multimodality programming, with supports and he learned and used hand motions to support his recognition and production of vowel sounds (P-Ex. H-8-9). Through the individualized instruction provided, he made progress and by the end of the year he had a relatively good recall of twenty-eight Hebrew letters and five vowel symbols (P-Ex. H-9).

In Math the Student was grouped with three other students (P-Ex. H-9). The Student learned to recognize, write and understand what numbers meant and required 1:1 instruction, hands-on learning, use of manipulatives, multi-modality presentation, systematic instruction, and constant review to attain targeted math skills during the school year (P-Ex. H-9). By the end of the year, the Student was able to develop a greater number sense, learned to recognize, read, and write numbers from zero to twenty with relative consistency, developed a basic sense of place value, learned to add and subtract numbers from 1-20, and learned to recognize and manipulate numbers from 1-100 (P-Ex. H-9).

In writing, the Student was grouped with three students (P-Ex. H-10). The class worked on letter formation and developed letter/sound awareness (P-Ex. H-10). The Student developed functional mechanical writing skills through guided and independent practice (P-Ex. H-10). He required constant individual support to maintain focus and attention, and he benefited from multimodality and multisensory introduction to letter formation, prompting, visual cues, constant reinforcement, and scaffolding (P-Ex. H-10). The Student’s individualized writing program was implemented during this class and facilitated by his 1:1 paraprofessional (P-Ex. H-10). As a result of the specialized instruction in combination with his individualized writing plan, the Student was able to print all lower-case letters and most upper case letters of the alphabet by the end of the school year (P-Ex. H-10).

The Student participated in a guided social skills club where they targeted transitioning, sportsmanship, developing an esprit de corps, turn taking, using politeness markers, and theory of the mind (P-Ex. H-8). The Student also attended an Executive Function Skills, Regulation and Group Activity course with two other students (P-Ex. H-10). The class was segmented into executive function exercises/games (to promote cognitive flexibility, planning ahead, maintaining focus, and techniques for negotiating conflict) and a variety of activities (to promote self-awareness, increase working memory, develop organizational facility, expand verbal working memory, and encourage self-motivation, planning and problem solving), an exercise/regulation component, and guided play (P-Ex. H-10).

The Student also participated in a Hebrew Language/Writing course taught by a New York State licensed special education teacher trained in the Orton Gillingham Approach (P-Ex. H-10-11). The course was designed to stimulate language development in both reading and writing Hebrew through multisensory instruction (P-Ex. H-11). The Student also made gains in this class including the ability to follow directions and it further supported his English language skill development (P-Ex. H-11).

The Student also received related services of Occupational therapy (“OT”), 3 x 30 minutes per week, on an individual basis; Speech-language therapy (“Speech”), 2 x 30 minutes per week, on an individual basis; Counseling (Social Skills Group), 1 x 30 minutes per week (group), and 1 X 30 minutes per week (individual) (P-Ex. H-12). As a result of the OT interventions provided, the Student was able to focus and attend for longer periods of time, could better stay regulated, and he was less disruptive in the classroom (P-Ex. H-12). The Student showed growth in the area of fine motor skills, and he developed greater control when using writing utensils (P-Ex. H-12). Finally, he demonstrated increased facility with transitioning to and from the classroom (P-Ex. H-12). As a result of the speech interventions provided, the Student showed greater sentence comprehension and improved understanding of linguistic concepts, he strengthened his facility with sentence structure, improved his understanding and use of word classes, and demonstrated a greater ability to follow instructions when provided with visual support (P-Ex. H-12). He also improved his sentence formulation, increased his ability to recall auditory information, and showed greater understanding of statements of increasing length (P-Ex. H-12). As a result of the counseling interventions provided, the Student learned to respond to his name when called upon, which allowed for greater involvement in the group, learned to identify simple feelings and he occasionally could identify which emotion he was feeling, which helped improve his self-regulation and ability to interact with others in a socially appropriate manner (P-Ex. H-12).

Although the Private School was open for in-person instruction for most of the 2020/21 school year, the school transitioned to remote instruction on October 14, 2020 until November 2, 2020 due to COVID (P-Ex. D; H-13). During remote instruction, staff and administration ensured that students had access to all of the learning materials and technology that they would need to continue their programming, used Zoom for student lessons, which allowed for two-way audio and video feeds, also used Google Drive to communicate and email to provide materials (P-Ex. H-13). The students’ parents monitored the technology to ensure that the students had no trouble entering and leaving their sessions (P-Ex. H-13). During remote learning, the Student continued receiving instruction and related services, including 1:1 paraprofessional support, and continued to progress towards his targets (P-Ex. H-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 and socially and emotionally.

The Student’s progress was tracked through assessments over the course of the school year (P-Ex. H-12). Each day, they used informal probes during instruction, and they administered content-based assessments, which were summarized at least monthly (P-Ex. H-12). Progress reports were prepared twice a year (P-Ex. F; G; H-12). To determine his progress, staff looked at the level of function for specific skills and, as the Student gained competency, teachers examined whether he mastered a particular skill (P-Ex. H-13). According to the Director, the Student made important gains throughout the school year in all subject areas and in all of his fundamental academic skills (P-Ex. H-13). The Student progressed academically, socially, and behaviorally; his focus and attention improved, making him more available for learning; his critical thinking increased, and he was better able to see connections and make associations (P-Ex. H-13). The Student also demonstrated growth in his social and functional skills (P-Ex. H-13).

The Private School provided the Student with small, supportive classes and the differentiated instruction and individualized social/emotional, behavioral, and sensory/motor supports that he needed, which enabled him to progress meaningfully during the 2020/21 school year. The Student benefitted from the individualized behavioral plan and 1:1 paraprofessional that supported and addressed his behavioral and self-regulation challenges. The Student also benefited from a personalized sensory diet which addressed deficits that contributed to his visual, sensory, attention, and focus struggles. Based on all of the above, I find that the Private School was an appropriate placement for the Student for the 2020/21 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.

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 2020/21 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 2020/21 school year.

SO ORDERED

DATED: December 4, 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

Ex. Date Description Pages

4/7/20

IEP

25

4/8/20

PWN

4

Undated

GARS-3 Response Form

4

3/13/20

Social Update

3

4/6/20

Occupational Therapy Update

2

4/7/20

Child Outcomes Summary Form

1

11/4/19

Psychiatric Update

2

3/26/20

Classroom Observation

1

4/6/20

Psychoeducational Evaluation Report

1

8/24/20

TDN

4

Parent Exhibits

Ex. Description Date Pages

A Due process complaint 8/11/21 five pages

B Letter from the parent to the CSE 8/24/20 six pages

C Private school's mission statement undated one page

D Private school's remote learning 2020/'21 two pages

E Class schedule '20/'21 one page

F Progress report 9/2020-12/2020, Six pages

G Progress report 1/202-6/2021 six pages

H Affirmation of Director 10/22/2 five pages

I Affirmation of Parent 10/22/22 five pages

J Tuition contract '20/'21 two pages

K Affidavit of payment 10/20/22 one page

L Proofs of payment 9/2020-6/2021 ten pages

M Individual tax return 2020 three 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.