New York City Department of Education, Impartial Hearing Decision

SED # 555537 NYC # 211592

In the Matter of an Impartial Hearing pursuant to Part 200 In the Matter of an Impartial Hearing pursuant to Part 200 FINDINGS OF FACT AND ORDER of the Regulations of the Commissioner of Education IHO No. 211592

REDACTED

-against- The New York City Department of Education

Procedural Context

By letter dated August 19, 2021 I was appointed to hear the Matter of REDACTED and the New York City Department of Education (hereinafter “the Department”) pursuant to the Individuals with Disabilities Education Improvement Act, 20 U.S.C. Section 1415 (f)(1). On September 24, 2021, a pre-hearing conference was convened telephonically for the purpose of developing a litigation calendar and, where possible, framing the issues. Notably, the Department did not appear. Thereafter, a status conference was held on October 25, 2021. Again, the Department did not appear. On December 15, 2021 and January 25, 2022, hearings were held. Once again, the Department did not appear, nor did it submit evidence, despite a reminder email on December 14, 2021. Exh. i, passim. At this time, the compliance date for issuing a decision in the above-referenced matter was duly extended to February 10, 2020.

Specifically, the Parents assert that the Department stands in violation of its Child Find duties and responsibilities pursuant to [§ 20 U.S.C. § 1412(a)(10)(C)(iii)(I)(bb), 1412(a)(3)(A)] and 8 NYCRR § 204 (a)(1) et seq. for the 2020-2021 and 2021-2022 school years. As such, its failure to evaluate the child in a timely and appropriate manner denied STUDENT the right to FAPE.

As a result thereof, they are seeking tuition reimbursement for the 2020-2021 and 2021-2022 school years at the School 1 Academy Supplemental program Program (hereinafter “School 1”, the REDACTED Therapeutic Expeditions program (hereinafter “REDACTED” in REDACTED Utah) and REDACTED Academy (hereinafter “REDACTED” in REDACTED, Utah) in furtherance of unilateral transfers during the relevant school years. As a corollary, the Parents have defended the educational program implemented by these placements and rely upon the rules and principles set forth in Florence County School District Four v. Carter by Carter, 114 S.Ct., 361 (1993); and Burlington Sch. Comm. v. Dep't of Educ., 471 U.S. 359, 368 [1985]. Beyond this, they maintain that their actions do not militate against their equitable entitlement to reimbursement.

It should be noted that subsequent to my appointment, the parties moved to extend the compliance date on various occasions in light of anticipated testimony, scheduling of witnesses, mutually available dates and/or preparation of closing memoranda. At the commencement of the 2020-2021 year, REDACTED was sixteen years old and commencing eleventh grade. The child presents with a behavioral profile consistent with Autism Spectrum Disorder (hereinafter referenced as “ASD”) and exhibits social, emotional and significant executive deficits. Exh. D, passim. As the hearing unfolded, testimony offered by each witness was credible and I have concluded that each witness testified truthfully in accordance with their recollections and as to the opinions they held. A list of persons in attendance and of evidence is appended hereto.

The Department of Education’s Default

It should be noted that the Department was well aware that this matter had been assigned to this District and this Region. Indeed, its Chairperson Designee emailed an apology for the Department’s non-appearance on September 24, 2021. Thereafter, several emails were sent by both Ms. REDACTED and her supervisor, supervisor 1, agreeing to the adjournment of the November 10, 2021 proceedings. Nevertheless, despite the Impartial Hearing Office’s Notice of Hearing, on December 15, 2021, the Department was, again, a “no-show.”

Regrettably, this disregard is emblematic of the Department’s consistent negligence in the within matter. On notice as of August 23, 2020, the Department failed to respond to the Parent’s request for an evaluation and CSE convene. Similarly, on February 26, 2021 and June 17, 2021, Notices of Unilateral Placements were sent to the Department and again ignored. Exhs. A-C. Aware that the within matter had been scheduled for hearing on December 15, 2021, no one appeared. In view of the above, I have no alternative but to take a default in the within matter, as the Department has exhibited a steady pattern of procedural neglect and non-appearance.^[1]

The Parents’ Case and Summary of Witness Testimony

Teacher 1 testified on behalf of the Parent. Mr. Teacher 1 is a psychologist who directs the Supplemental Program at School 1, a program which facilitates the education of children with learning differences. During the 2020-2021 school year, Mr. Teacher 1 was responsible for admissions, reviewing records, matching students with teachers and developing schedules which reflect the needs of each individual student. Supplemental program is a mainstream program which includes supportive special education services. Tr. at 35-38. Having reviewed STUDENT ’s file, Mr. Teacher 1 understood that REDACTED was exceptionally bright but struggled with executive function and organizational deficits. In addition, REDACTED’s Asperger’s syndrome interfered with his ability to socialize appropriately. Basing his educational opinions upon both the Neurological and Educational Evaluation of September 2, 2020 and the Neurodevelopmental Evaluation of March 13, 2019, Mr. Teacher 1 believed School 1 and Supplemental program would be appropriate placements for the child. Tr. at 39-41; Exhs. D, E. Nevertheless, he acknowledged that the Zoom program instituted in response to the early stage of the Covid pandemic would be challenging for STUDENT and similar students. As a result, REDACTEDs had the option of in-person seminars once or twice a week. Given STUDENT ’s strong intellectual ability, combined with his ASD and a history of depression, the witness believed it was imperative to assign REDACTED to challenging and advanced classes whose teachers had strong psychological backgrounds and this was done.

However, as the year progressed, STUDENT became less and less engaged with school, requiring log-on reminders, failing to submit assignments, requiring frequent one-to-one instruction, emotional support sessions and multiple educational accommodations.^[2] Tr. at 36-39. Moreover, REDACTED was becoming increasingly depressed, hopeless and anxious. In response, STUDENT developed an obsession with video games to the detriment of logging on to the Zoom screen. As his academic performance deteriorated, Mr. Teacher 1 believed REDACTED was shutting down emotionally by distracting himself with video games. Tr. at 50-54, 57,62. By the spring of 2021, REDACTED was now exhibiting extreme therapeutic needs which could not be addressed within the Zoom format. STUDENT was no longer attending classes or submitting assignments. Behaviorally, he appeared addicted to video screens. In sum, STUDENT was decompensating dramatically, a fact evidenced by his declining grades and an inability to focus on educational materials. Although extra 1:1 instruction was offered, REDACTED simply stopped attending classes.

Thereafter, in conversations with the Parents, Mr. Teacher 1 learned that the Parents were considering placement in a wilderness program, an intervention with which the witness concurred. Mr. Teacher 1 opined that REDACTED required an “immersive” environment in which intense therapy could be offered, away from destructive behavior stimuli such as video games. Although initially an appropriate setting for REDACTED, as his needs escalated, it was clear that REDACTED would require a residential placement.

Parent is REDACTED’s mother. She provided a brief educational history of her son, noting that until his sophomore year of high school, STUDENT has always attended public schools. In tenth grade, STUDENT began attending REDACTED Day School. At this time, the Parent observed that, although her son was exceptionally bright, he was struggling with schoolwork. STUDENT was also exhibiting increasing levels of anxiety and depression and, as a result, the child’s attendance began to suffer. The Parent explained, “I was not about to send a 15, 16-year-old kid crying to school”... and “it was impossible to take him out of the house.” Tr. at 79. The Parent testified that STUDENT felt hopeless and miserable, had no friends and was in a downward emotional spiral. The Parent further testified that she was frightened for G. A. because he would cry himself to sleep and was clearly in crisis. Tr. at 81. As a result of her son’s declining emotional stability, STUDENT ’s psychiatrist recommended a two-month medical leave from school. During this time, STUDENT received intense psychiatric care, but remained home. Thereafter, STUDENT refused to return to REDACTED and REDACTED was enrolled at REDACTED Academy, a one-to-one tutorial program with a rolling admissions.

By now, Parent understood that a purely mainstream education could no longer address REDACTED’s needs. On August 23, 2020, the Parents wrote to the Department of Education requesting an evaluation and an IEP for her child. To date, she has never received a response. Exh. Y. After researching various programs, Parent concluded that the enriched academic program at School 1 would suit her son. She based her opinion on the fact that the School could provide academically challenging course while furnishing both executive and emotional support. Tr. at 88.

Nevertheless, although school personnel attempted to engage with her son and provide both emotional and educational support, the stresses of the pandemic exacerbated STUDENT ’s struggles. Parent testified that her son was becoming increasingly addicted to video games, at the expense of engaging with school and people. As there were others in the household, shutting off the home’s Wi-Fi became problematic, especially since school for other children in the home was now remote. Tr. at 78. The witness acknowledged that although School REDACTED personnel attempted to re-engage REDACTED through individualized emotional and academic support, their efforts were unsuccessful. In desperation, the Parent obtained a second neuropsychological evaluation and began asking STUDENT ’s psychologists and therapists for recommendations as it was clear that STUDENT now required a more intense therapeutic environment. Tr. at 90, 129. At the direction of these professionals, the Parents now requested an evaluation of their son. Exh. Y.

During this time, the Parent sought assistance from multiple community resources, including the Asperger and Autism Network and Asperger, a group for parents of ASD children. Beyond this, they consulted with educational professionals, psychologists and therapists. Although the Parents tried desperately to find help for STUDENT, their son was becoming worse. STUDENT would not engage in anything outside of the house and it was becoming more difficult to control his behavior.

Finally, when other parents and an educational consultant suggested a wilderness program, Parent testified that she was initially shocked, but eventually came to believe this was the only way to “reset” her son and remove him from an environment which was only making him worse. Tr. at 125. On February 26, 2021, the Parents advised the Department of their intention to place STUDENT in a non-public school setting, noting the Department’s continued failure to evaluate the child, despite their earlier request. Exh. B. Thereafter, in March 2021, when it appeared that STUDENT was deteriorating rapidly, notwithstanding School REDACTED’s best efforts, REDACTED was enrolled at REDACTED, a therapeutic wilderness program. Parent, the child’s mother, testified that STUDENT now relied upon technology to escape from reality and avoid engagement with the world. As such, REDACTED needed a remote program which was insulated from all technological devices. STUDENT remained at REDACTED until May 2021 at which time he was discharged and enrolled at School REDACTED, a step-down transition.

The Parent indicated that she had reviewed REDACTED’s website and found that it was accurate to the best of her knowledge. STUDENT received academic credit during his stay at REDACTED and participated in intensive therapy from several therapists. In addition to frequent individual and group therapy, Parent testified that family counseling was also incorporated into the program. During this time, the Parent received weekly progress reports from REDACTED personnel. Tr. at 136. Specifically, STUDENT was presented with identified goals, including executive function, social and life skill objectives. Her son was then held accountable for achieving these goals. The witness opined that her son’s treatment at REDACTED was very meaningful and that the progress was quite evident as time elapsed. Although STUDENT only attended REDACTED for 10-12 weeks, Parent testified that the experience was “transformational,” furnishing her with hope that for STUDENT ’s future. Tr. at 137-138.

Nevertheless, when STUDENT finished the program, REDACTED personnel opined that REDACTED continued to require a therapeutic setting. In this manner, emergent skills obtained at REDACTED could be more firmly established in a protective but less restrictive environment. In furtherance thereof, REDACTED personnel believed STUDENT ’s inchoate skills continued to require reinforcement so that they might be more firmly entrenched in STUDENT ’s behavioral repertoire. Through a transitional program, STUDENT could solidly internalize the progress he had made by practicing these new executive and social strategies more independently. Consequently, the REDACTED team recommended a step-down program.

In May 2021, based upon the advice of the Parent’s educational consultants and therapists, REDACTED transitioned to REDACTED where STUDENT participated in educational, counseling and recreational programming of a therapeutic nature. Tr. at 145. On June 17, 2021, the Parents again contacted the Department regarding their academic plans for STUDENT Exh. C. To date, there has been no response. Tr. at 147.

Teacher 2 additionally testified on behalf of the Parent. Ms. Teacher 2 possesses a professional level teaching license in Utah and has worked as a teacher or administrator since 2000. Tr. at 93-95. She presently serves as the Assistant Academic Director at REDACTED Academy. The witness serves additionally as STUDENT ’s academic advisor and English teacher. She described REDACTED as an accredited college preparatory school, serving boys – grades 9 through 12. Within this context, the School offers a residential, therapeutic environment within very small classrooms of 5-10 children. It also offers a specific program addressing executive, social and therapeutic self-help skills. All teachers are licensed and related service personnel such as therapists are additionally certified within the State.

REDACTED profile reflects children who have been diagnosed with anxiety and/or depression. Many exhibit executive functioning deficits, inconsistent with their cognitive abilities, as well as ADHD. The School does not service children with ODD, histories of violence or suicidal behaviors. Tr. at 85. Among its therapeutic modalities, REDACTED utilizes Brain Breaks, SPARKS and Grit and Growth, a specific program to address motivation, perseverance and, ultimately, screen addiction. Eye balance techniques are additionally implemented as a means of ameliorating screen dependance. In sum, the witness opened that STUDENT was a “perfect fit” for REDACTED. Tr. at 99.

Ms. Teacher 2 described STUDENT as an ASD student with anxiety, ADHD and specific learning disorders in written expression. Although REDACTED presented initially as neurotypical, it quickly became clear that STUDENT was extremely rigid and resistant to change. As a result, much intervention involved both individual and group therapy with additional focus on anger management and relationship skills, totaling approximately 11 ½ hours per week. Therapy includes expressive modalities, family systems, integrative couples, behavioral therapy, cognitive, dialectical behavior therapy and motivational interviewing. Tr. at 109.

STUDENT additionally receives educational accommodations, including executive functioning coaching, extended time on tests, chunking of assignments, preferential seating, minimizing distractions, multimodal presentations of material, guided notes, “Brain Breaks,” and pairing with peer mentor when possible. Exh. U. Additional intervention addresses eye balance and STUDENT ’s dependance upon gaming, technology and device screens. REDACTED personnel meet formally in biweekly meetings, in addition to other faculty meetings which occur twice per week and/or as needed.

The witness noted that STUDENT demonstrated significantly low processing speed, relative to his cognitive strengths. As a result, REDACTED struggled with developing various academic skills and functioning appropriately within the classroom. Tr. at 115. In response, REDACTED instructed REDACTED on the “hidden curriculum” behind absorbing academic material, such as learning to take notes, manage time, break down assignments and advocate for assistance etc. Tr. at 102.

As REDACTED is residential, each student is provided with an hourly “shift sheet” score which offers immediate feedback regarding student behavior. In addition, each child is assigned to a mentor. Many of REDACTED’s goals as per his master treatment plan, reflected his need to develop greater flexibility and less rigidity within the context of his ASD. Tr. at 106; Exh. S. The witness indicated that STUDENT takes very demanding courses such as A.P. physics and has demonstrated superior mastery of the material, as per his grades. Exhs. V, W.X. Moreover, in anticipation of his graduating in June of this year, he will also be taking courses at a local community college, in order to facilitate his transition to higher education and greater academic demands.

Nevertheless, the witness indicated that REDACTED is complex and that his academic skills reflect only part of REDACTED's needs. He is still learning to hear feedback and apply it where appropriate. He is also emerging from a state of denial in which he believes he is successfully functioning in the world. Tr. at 116. STUDENT is additionally learning to modulate his levels of irritability and frustration. While his anxiety and ability to maintain a positive mindset have improved, STUDENT has similarly developed greater levels of empathy and self-knowledge. Nevertheless, REDACTED himself recognizes that these are emergent skills which must be solidified through additional practice. Tr. at 105. Ms. Teacher 2 additionally noted that REDACTED participates in REDACTED Academy, the School’s band, an elective but important element of learning how to cooperate and function successfully within a group. In this manner, he is reinforcing his newly acquired interpersonal social skills, learning how to apply transfer these skills to non-academic settings. Tr. at 122. She could not recall whether STUDENT participated in REDACTED’s running club but indicated that team sports are important for ASD students who benefit from the team experience in terms of group dynamics. Tr. at 120. Nevertheless, the witness was silent about STUDENT ’s music lessons, although it would seem reasonable that maintaining musical skills would be inherent in the child’s participation in REDACTEDAcademy.

The Department’s Position The Department did not appear nor did it request an adjournment. Therefore, a default judgment was taken. It should be noted that this default reflected the culmination of several unexplained non-appearances on behalf of the Department, both prior to and following the inception of litigation. Exh. i, passim.

The Parents’ Position

Specifically, the Parents assert that the Department stands in violation of its child find duties and responsibilities and, as a result, failed to provide STUDENT with a free and appropriate public education for the 2020-2021 and 2021-2022 years in violation of the IDEA and its provisions. See 20 U.S.C. § 1412 (a)(1)(1997); 20 U.S.C. § 1401 (11)(1997). On notice as of August 23, 2020, the Department failed to respond to the Parent’s request for an evaluation and CSE convene. Similarly, on February 26, 2021 and June 17, 2021, Notices of Unilateral Placements were sent to the Department and again ignored. As a result, the Department neglected REDACTED’s academic, emotional and social needs such that the Parents were compelled to unilaterally place their child in a non-public residential school placement (Board of Education of the Hendrick Hudson Central Department, Westchester County, et al., v. Amy Rowley, by her Parents’, Rowley et el., 58 US l76, at 206; Walczak v. Florida UFSD, 142 F.3d 119 (2d Cir.1998).

Consistent with their argument, the Parents contend that School 1, REDACTED and REDACTED constituted appropriate placements for their son during the 2020-2021 school years and, furthermore, that there are no equitable factors which, pursuant to School Committee of the Town of Burlington v. Department, Massachusetts, 471 U.S. 359 [1985], militate against an award of reimbursement.

General Discussion of Case Law and Statutes

It is clear that the legislative intent of 20 US Code § l4l2 of the Individuals with Disabilities Education Act is to provide a free and appropriate public education to all children with disabilities so that these individuals may ultimately lead productive, independent lives as adults, to the maximum extent possible (20 U.S.C.Sx.1400 [d][1][A]; see Ms. W. v. Tirozzi, 832 F.2d 748, 750 [2nd Cir. 1987]). A FAPE consists of specialized education and related services embodied in an IEP. See 34 C.F.R. 300.13. An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify REDACTED's needs, establishes annual goals and short term instructional objectives related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 01-105; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). The IEP is the "modus operandi" of the IDEA (Burlington Sch. Comm. v. Dep't of Educ., 471 U.S. 359, 368 [1985]). Under both state and federal law, an IEP is specifically defined as a "written statement" that addresses the educational needs of a child with a disability (20 U.S.C. 1401(11); 34 C.F.R. 300.340[a]; 8 N.Y.C.C.G.P. 200.1[y]). The IDEA and its corresponding regulations mandate that at the beginning of each school year, a Department must have an IEP in place for each child with a disability that resides within its jurisdiction. 20 U.S.C. 1414(d)(2)(A); 34 C.F.R. 300.342[a].

In furtherance thereof, a board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed through the IDEA's procedures is reasonably calculated to enable the child to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206-207 [1982]). The recommended program must also be provided in the least restrictive environment (34 C.F.R. § 300.550[b]; 8 N.Y.C.C.G.P. 200.6[a][1]).

In determining the “reasonably calculated” standard, the IDEA does not require the best placement for a student, but rather one at which REDACTED may make educational progress. Most recently, the Courts have reiterated the standards upon which the “reasonably calculated” standard of FAPE must be determined. "The requirement that each child be afforded a FAPE does not guarantee that the district provide everything that might be thought desirable by loving parents" ( B.B. and A.P. o/b/o D.P. vs. the NYC Dept. of Ed. 11-CV-2141 (WFK) (MDG) (Jan. 6, 2012), citing, Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d at 567; D.B. ex rel. K.B. v. New York City Dep't of Educ., No. 10-cv-6183, 2011 WL 4916435 [S.D.N.Y. Oct. 12, 2011][Sweet, J], quoting Walczak, 142 F.3d at 132. Nor must the IEP furnish "every special service necessary to maximize each handicapped child's potential." Rowley, supra at 199.

Rather, the IEP must provide a "basic floor of opportunity consisting of services that are individually designed to provide educational benefit to a child with a disability" (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 379 (2d Cir. 2003); see also Carlisle Area Sch. v. Scott P., 62 F.3d 520, 533-34). Indeed, a Department "fulfills its substantive obligations under the IDEA if it provides an IEP that is likely to produce progress, not regression, and if the IEP affords REDACTED with an opportunity greater than mere trivial advancement" (A.H. ex rel. JH v. New York City Dep't of Educ., 394 Fed. Appx. 718, 721 [2d Cir. 2010]).

Courts have held, furthermore, that the inquiry into whether a particular IEP is "reasonably calculated" to confer a meaningful educational benefit on a particular student must be made prospectively. See D.F. ex rel. N.F. v. Ramapo Cent. Sch. Dist., 430 F.3d 595, 598-99 (2d Cir. 2005) (declining to rule whether it is error to consider retrospective evidence, but noting that the First, Third, and Ninth Circuits, as well as district courts within the Second Circuit, had so held); J.G. ex rel. N.G. v. Kiryas Joel Union Free Sch. Dist., 777 F. Supp. 2d 606, 636 n.26 (S.D.N.Y. 2011) (discussing lack of Second Circuit precedent requiring only prospective review, but ultimately conducting review limited to information known at time IEP was crafted to reach "the most equitable result"); J.R. ex rel. S.R. v. Bd. of Educ. of City of Rye Sch. Dist., 345 F. Supp. 2d 386, 395 (S.D.N.Y. 2004) (courts must "consider the propriety of the IEP with respect to the likelihood that it would benefit [the child] at the time it was devised"). Additionally, the IDEA provides that a Department must include and involve the parents of the disabled child in the development of that child's "educational placement." 20 U.S.C. § 1414(e). Parents, however, may only have input in the process; they do not wield "veto" power over a CSE's school choice. See T.Y. ex rel. T.Y. v. N.Y.C. Dep't of Educ., 584 F.3d 412, 420 [2d Cir.]

Indeed, consistent with Endrew F., supra, the District’s program must not merely create a chance or possibility of progress, it must be reasonably calculated to enable a child to make progress appropriate in light of that child’s circumstances, that is, it must create a likelihood of progress (Endrew F. at 137 S.Ct. 1001). C.G.P. is a child with significant cognitive deficits and should not be subject to the “soft bigotry of low expectations.” Brief of Former Officials of the U.S. Department of Education as Amici Curiae at 6, cited in Endrew F. 137 S.Ct. at 988.

Finally, while both the Supreme Court and Congress place great importance on the procedural provisions of the IDEA (Rowley, 458 U.S. at 205 ["the importance Congress attached to these procedural safeguards cannot be gainsaid"]), nevertheless, adequate compliance with the procedures prescribed [by the IDEA] would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP" (Rowley, 458 U.S. at 206; M.S. v. Bd. of Educ. of the City of Yonkers, 231 F.3d at 102). Still, the initial procedural inquiry is no mere formality (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998]). These detailed procedural provisions "lie at the heart" of the statute (Evans v. Bd. of Educ. of the Rhinebeck Cent. Sch. Dist., 930 F. Supp. 83, 93 [S.D.N.Y. 1996]). They are not mere procedural hoops through which Congress intended state and local educational agencies to jump, rather the procedures are themselves a safeguard against arbitrary or erroneous decision making (Daniel C.G.P. v. State Bd. of Educ., 874 F.2d 1036, 1041 [5th Cir. 1989]; Engwiller v. Pine Plains Cent. Sch. Dist., 110 F. Supp. 2d 236, 247 [S.D.N.Y. 2000]; Evans, 930 F. Supp. at 93).

Having said this, procedural flaws alone do not automatically translate into a denial of FAPE. A violation of FAPE may only be determined when these procedural inadequacies, individually or cumulatively, result in the loss of educational opportunity, or seriously infringe on a parent's participation in the creation or formulation of the IEP (Shapiro v. Paradise Valley Unified Sch. Dist., 317 F.3d 1072, 1079 [9th Cir. 2003]; Knable v. Bexley City Sch. Dist., 238 F.3d 755, 766 [6th Cir. 2001], cert. denied 533 US 950 [2001]; Heather S. v. State of Wisconsin, 125 F.3d 1045, 1059 [7th Cir. 1997]; W.G. v. Bd. of Trustees of Target Range Sch. Dist. No. 23, 960 F.2d 1479, 1484 [9th Cir. 1992]; Burke Co. Bd. of Educ. v. Denton, 895 F.2d 973, 982 [4th Cir. 1990]; W.A. v. Pascarella, 153 F.Supp. 2d 144, 153 [D.Conn. 2001]; see Arlington Cent. Sch. Dist. v D.K., 2002 WL 31521158 [S.D.N.Y Nov. 14, 2002]; see also J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69-70 [2d Cir. 2000] [relief is warranted only if the procedural violation affected REDACTED's right to a FAPE]).

Finally, it is clear that a court may order reimbursement for parents who unilaterally withdraw their child from a public school that provides an inappropriate (emphasis ours) education under the IDEA and enroll the child in a private school of their choice. The Supreme Court has established a three-pronged test under School Committee of Burlington v. Department of Education of Massachusetts, 471 U.S. 359 (1985), which defines those circumstances in which a Board of Education may be compelled to reimburse a parent. Under these guidelines, a unilateral placement may be reimbursed where 1) the CSE's IEP is inappropriate; 2) the parent's placement is educationally appropriate and 3) equitable factors compel a finding of fairness. There is, moreover, no requirement that the placement be state approved or even that it generate IEPs as part of its educational strategy. Florence County Department Four v. Carter by Carter, S.Ct. 361 (1993).

The Department’s Child Find Responsibilities The instant matter additionally presents the issue of Child Find as it impacts upon the Department's responsibility to have in effect policies and procedures," by which it will identify, locate, and evaluate "[a]ll children with disabilities residing in the State" to determine whether these children require special education and related services ( § 20 U.S.C. § 1412(a), 1412(a)(3)(A); see also Handberry v. Thompson, 446 F.3rd 335, 347 (2d Cir.2006); A.P. ex rel. Powers v. Woodstock Bd. of Educ., 572 F.Supp.2d 221, 224 (D.Conn.2008) (describing "Child Find" obligations). This "Child Find" obligation extends also to children "who are suspected of being a child with a disability... and in need of special education, even though they are advancing from grade to grade...." 34 C.F.R. § 300.111(c)(1); see also Bd. of Educ. v. L.M., 478 F.3d 307, 313 (6th Cir.2007) (noting that § 300.111(c) extends the IDEA's "Child Find" requirement to children "only suspected of having a disability"); Dean v. Sch. Dist. of Niagara Falls, 615 F.Supp.2d 63, 71 (W.D.N.Y. 2009) (same); A.P., 572 F.Supp.2d at 224-25 (same).

Thus, courts have held that a state's Child Find duty is "triggered" when it "has a reason to suspect a disability, and reason to suspect that special education services may be needed to address that disability" (New Paltz Cent. Sch. Dist. v. St. Pierre, 307 F.Supp.2d 394, 400 n. 13 (N.D.N.Y.2004); see also Murphy v. Town of Wallingford, No. 10-CV-278, 2011 WL 1106234, at *3 (D.Conn. Mar. 23, 2011) ("Once a school has reason to suspect a disability, the school must conduct an evaluation of the child within a reasonable time." (internal quotation marks omitted)); Regional Sch. Dist. No. 9 Bd. of Educ. v. Mr. & Mrs. M., No. 07-CV1484, 2009 WL 2514064, at *8 (D.Conn. Aug. 7, 2009) (same); El Paso Indep. Sch. Dist. v. Richard R., 567 F.Supp.2d 918, 950 (W.D.Tex. 2008) (collecting cases). "However, the IDEA is not an absolute liability statute and the “Child Find' provision does not ensure that every child with a disability will be found." A.P., 572 F.Supp.2d at 225 (citing L.M., 478 F.3d at 313).

The IDEA additionally contains a separate sub-section entitled "Children in private schools." 20 U.S.C. § 1412(a)(10). This sub-section requires states receiving federal funds to provide special education and related services to "children with disabilities in the State who are enrolled by their parents in private elementary and secondary schools." Id. § 1412(a)(10)(A). Under this provision, "states are required to provide to children voluntarily enrolled in private schools only those services that can be purchased with a proportionate amount of the federal funds received" under Part B of the IDEA (Russman v. Bd. of Educ. of Watervliet,150 F.3rd 219, 221 Cir. 1998). The same child-find requirement applicable to public school children also applies to privately placed children. See 20 U.S.C. § 1412(a)(10)(A)(ii)(I). The goal of this Child Find process is to "ensure the equitable participation of parentally placed private school children with disabilities and an accurate count of such children." Id. § 1412(a)(10)(A)(ii)(II). Federal regulations provide that each local school district's Child Find obligations extend to "children with disabilities who are enrolled by their parents in private, including religious, elementary schools and secondary schools located in the school district served by the [local education agency]." 34 C.F.R. § 300.131(a) (emphasis added).

As a corollary and, in furtherance thereof, 8 NYCRR 200.2 (a)(7((i) states: Procedures to locate, identify and evaluate all nonpublic private elementary and secondary school students with disabilities including religious-school children as required by the Education Law must be established to ensure the equitable participation of parentally placed private school students with disabilities and an accurate count of such students. The Child Find activities must be comparable to that for other students attending public school in the school district. The school district shall consult with representatives of private schools and representatives of parents of parental placed private school students with disabilities on the Child Find process sets forth his obligation also extends to "parentally-placed private school children who reside in a State other than the State in which the private schools that they attend are located." Id. § 300.131(f).

Clearly, STUDENT was off the Department’s “radar.” It did not comply with timelines, failed to evaluate the child or convene a CSE. Most egregiously, it failed to even communicate with the Parent despite her plea for help. Clearly, the Department’s neglect established a procedural violation which denied the child’s right to FAPE. See Timothy O., 822 F.3d at 1124; see also S.B. v. San Mateo Foster City Sch. Dist., 2017 U.S. Dist. LEXIS 217440. "A procedural violation denies a FAPE if it results in the loss of an educational opportunity, seriously infringes the parents' opportunity to participate in the IEP formulation process or causes a deprivation of educational benefits." J.L. v. Mercer Island Sch. Dist., 592 F.3d 938, 953 (9th Cir. 2010). As a result, the burden was unjustly placed upon the Parent to retain educational experts, evaluators and placements. But for the Parent’s sophistication, persistence and ability to underwrite these expenses, STUDENT would have continued to deteriorate and decompensate. Regrettably, if the Department has been assiduous about anything, it is its unswerving disrespect and disregard for the IDEA and its provisions.

Were School 1 Preparatory School, REDACTED and REDACTED appropriate educational placements for REDACTED during the 2020-2021 and 2021-2022 school years?

Specifically, the Second Circuit has set forth a stringent standard for demonstrating the appropriateness of a parent’s unilateral placement. "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement…” (Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]; Frank G. v. Bd. of Educ., 459 F.3d 356 [2d Cir.2006]). Parents need not show that the placement provides every special service necessary to maximize REDACTED's potential (Frank G., 459 F.3d at 364-65). When determining whether the parents' unilateral placement is appropriate, "[u]ltimately, 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; see also Gagliardo, 489 F.3d at 112). While evidence of progress at a private school is relevant, it does not itself establish that a private placement is appropriate (Gagliardo, 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]]). A "private placement is only appropriate if it provides 'education instruction specifically designed to meet the unique needs of a handicapped child'" (Gagliardo, 489 F.3d at 115 [citing Frank G., 459 F.3d at 365 [quoting Rowley, 458 U.S. at 188-89] [emphasis added]]).

The Gagliardo Court further specified that no one factor is necessarily dispositive in determining whether a unilateral placement is appropriate. While grades, test scores and regular advancement may constitute evidence that a child is receiving educational benefit, it is clear that “the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs” will be considered in determining the appropriateness of a unilateral placement.  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; see Frank G., 459 F.3d at 364-65; see also A.D. and H.D. v. New York City Dep't of Educ., 06 Civ. 8306 [S.D.N.Y. April 21, 2008]). The private school need not employ certified special education teachers, nor have its own IEP for REDACTED (Application of a Child with a Disability, Appeal No. 02-111).

Although it is clear that the District’s placement must comport with its LRE requirement, this is not the Parents’ burden. Moreover, in the matter at bar, there WAS no placement. While parents are not held as strictly to the standard of placement in the least restrictive environment as local educational authorities are, the restrictive nature of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement (J.C., 231 F.3d at 105; Application of a Child with a Disability, Appeal No. 02-111; compare Application of a Child with a Disability, Appeal No. 99-44.

Turning to the question of whether the Parent’s placements were appropriate, the parent bears the burden of proof with regard to the appropriateness of the educational program for which they seek reimbursement during the 2017-2018 school year (M.S., 231 F.3d at 104; Application of a Child with a Disability, Appeal No. 02-111). In order to meet that burden, the Parent must show that both Catalyst and Mountain Springs offered an educational program, which met her son’s special education needs (Burlington, 471 U.S. at 370; M.S., 231 F.3d at 104-105; Application of a Child with a Disability, Appeal No. 02-111). The private school need not employ certified special education teachers, nor have its own IEP for REDACTED (Application of a Child with a Disability, Appeal No. 02-111). While parents are not held as strictly to the standard of placement in the least restrictive environment as local educational authorities are, the restrictive nature of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement (M.S., 231 F.3d at 105; Application of a Child with a Disability, Appeal No. 02-111).

Most significantly, a finding of progress is not required for a determination that a student's unilateral placement is adequate (Scarsdale Union Free Sch. Dist. v. R.C., 2013 WL 563377, at *9-*10 [S.D.N.Y. Feb. 4, 2013] [noting that evidence of academic progress is not dispositive in determining whether a unilateral placement is appropriate]; see M.B. v. Minisink Valley Cent. Sch. Dist., 523 Fed. App'x 76, 78 [2d Cir. Mar. 29, 2013]; D.D-S. v. Southold Union Free Sch. Dist., 506 Fed. App'x 80, 81 [2d Cir. Dec. 26, 2012]; see also Frank G., 459 F.3d at 364).19 Nevertheless, a finding of progress is, a relevant factor to be considered (Gagliardo, 489 F.3d at 115, citing Berger, 348 F.3d at 522 and Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 26-27 [1st Cir. 2002]; see T.K. v. New York City Dep't of Educ., 810 F.3d 869, 878 [2d Cir. 2016]). Application of the New York City Department of Education, App. No. 20-147.

I find that the Parent’s placements were appropriate for the relevant school years and I will address each placement separately.

School 1 Academy School Year: 2020-2021

At the outset, it is clear that the program offered at School 1 initially correlated well with REDACTED’s functional needs. The child’s executive and emotional weaknesses were addressed daily through small group instruction and individual counseling. This was entirely appropriate for REDACTED and his executive deficits. REDACTED, moreover, participated with peers whose functional profiles were consistent with his own. Understanding that the Zoom format would be challenging for many of its students, School 1 offered limited in-person academic seminars and counseling. Nevertheless, as the year progressed, STUDENT ’s emotional and functional abilities were deteriorating and REDACTED was unable to engage meaningfully with the Zoom format mandated by the Covid pandemic.

As REDACTED’s needs accelerated, School 1 attempted to enrich STUDENT ’s program with additional 1:1 academic and emotional support. However, STUDENT ’s ability to function appropriately within this setting gradually deteriorated, despite the various accommodations and modifications offered through the Bridge program. Although Mr. Teacher 1 opined that School 1 might have been able to provide the services STUDENT required, ultimately the remote format was ineffective for the child. STUDENT became increasingly depressed, disengaged from the world and obsessed with video screens and games. By the spring of 2021, REDACTED was now exhibiting extreme therapeutic needs which could not be addressed within the Zoom format. STUDENT was no longer attending classes or submitting assignments. Leaving the house was problematic. REDACTEDs grades declined dramatically and it was clear STUDENT was unable to focus on educational materials. Although additional 1:1 instruction was offered, REDACTED simply stopped attending classes. By the spring of 2021, both School 1 and the Parent recognized that STUDENT ’s needs had now surpassed what School 1 could provide and REDACTED was withdrawn from the School 1 program.

REDACTED REDACTED

There is no dispute that out-of-school behavior is definitely a relevant consideration in determining the condition and progress of a particular handicapped child. There is also no dispute that full-time residential placement is sometimes necessary to impart the requisite educational benefit. See Jefferson County Board of Education v. Breen, 853 F.2d 853 (11th Cir. 1988)(a child with serious psychiatric problems who was frequently hospitalized following suicide attempts). In Drew P. v. Clarke County School District, 877 F.2d 927 (11th Cir. 1989) the Court addressed the situation of an autistic child requiring almost constant supervision. In both scenarios, the child's behavioral, psychological or medical needs were so intertwined with his or her educational problems that they could not be separated or ameliorated to the extent that significant educational benefit could be imparted without residential placement.

Absent support and guidance of the Department despite her request, the Parent was required to become proactive in terms of managing STUDENT ’s needs. At the least, the Parent attempted to keep her home safe for STUDENT She noted, however, that her son was now a 16-year-old boy and she could not necessarily control him. STUDENT generally refused to leave the house and, under these circumstances, she was helpless to access the support he required. Clearly, STUDENT additionally needed to disengage from computer screens and games. This, however, was nearly impossible in a normally functioning household.^[3] There was simply no other means of achieving this other than removal from the environment which was facilitating this dysfunction. As such, REDACTED required a totally immersive setting in which technology was unavailable to wean and “detox” from his addiction.

The record indicates that REDACTED is accredited by the AdvancED Accreditation Commission and COGNIA, accrediting organizations which enable students to earn academic credit for their coursework, through the State of REDACTED. REDACTED is also a member of the National Association of Therapeutic Schools and Programs. As such, it provides intense psychotherapy to both the child and family. Indeed, REDACTED’s mission statement reflects the desire to provide intensive therapy without abandoning academics. Exh. K. During STUDENT ’s experience at REDACTED, the Parent testified that he received academic credits as well as intense therapy. Upon discharge, STUDENT remained fragile, but able to participate in a less restrictive environment.

Although no one testified on behalf of the REDACTED REDACTED, the record indicates that the program is designed to serve students whose profile is consistent with that of STUDENT In sum, while there was no testimony on behalf of the School, neither was there any testimony from the Department to controvert the evidence submitted by the Parent. Documents submitted into the record were not disputed, and to the extent possible, the Parent opined that REDACTED was an appropriate setting for REDACTED. Indeed, the Parent’s testimony largely corroborated the statements made by REDACTED on its website Ultimately, at the time of placement, REDACTED was an appropriate setting for the child’s fragile emotional status. Exhs. L-Q.

REDACTED Academy:

I find that REDACTED provided an appropriate and meaningful placement for STUDENT based upon the School’s student profile, small class sizes, over-all small school enrollment, intense therapeutic intervention and academic programming. The record indicates that REDACTED is an intensely supervised step-down program for students articulating from psychiatric programs, including wilderness interventions. It includes a great deal of one-to-one tutoring and full-time supervision in its residential facility.

REDACTED profile reflects children who have been diagnosed with anxiety and/or depression. Many exhibited executive functioning deficits, inconsistent with their cognitive abilities, as well as ADHD, similar to STUDENT Moreover, STUDENT ’s significantly low processing speed, relative to his cognitive strengths, is a common characteristic of many REDACTED students. REDACTED is not violent and, as stated earlier, the School does not service children with ODD, histories of violence or suicidal behaviors. Tr. at 85.

Among their areas of specialization, REDACTED utilizes Grit and Growth, a specific program to address motivation, perseverance and, ultimately, screen addiction for appropriate students. Grit and Growth is an empirically research based behavioral intervention utilized with individuals struggling to overcome fixed and dysfunctional mind-sets. Given STUDENT ’s screen and technology addictions, this program has been productive for REDACTED. As a non-violent student on the ASD spectrum, STUDENT was described by REDACTED’s witness as a “perfect fit” for the School. Tr. at 87.

The testimony of Ms. Teacher 2 described various programmatic interventions which were individually designed to address the child’s anxiety, ADHD and specific learning disorders in written expression. STUDENT receives multiple accommodations and strategies for addressing his executive deficits, including executive functioning coaching, extended time on tests, chunking of assignments, preferential seating, minimizing distractions, multimodal presentations of material, guided notes, “Brain Breaks,” and pairing with peer mentor when possible. Exh. U. The witness noted that STUDENT demonstrated significantly low processing speed, relative to his cognitive strengths. As a result, REDACTED struggled with developing various academic skills and functioning appropriately within the classroom. Tr. at 94. In response, REDACTED instructed REDACTED on the “hidden curriculum” behind absorbing academic material, such as learning to take notes, manage time, break down assignments and advocate for assistance etc. Tr. at 90.

In addition to academic support, REDACTED participates in intensive individual and group therapy with additional focus on anger management and relationship skills, totaling approximately 11 ½ hours per week. Interventions additionally focus upon such eye balance and STUDENT ’s dependance upon gaming, technology and device screens. REDACTED’s screen addiction clearly interfered with STUDENT ’s ability to access an education and had become a manner of disengaging with the real world. Clearly, until STUDENT could be weaned from this, academic intervention was illusory.

Are the Parents entitled to equitable relief pursuant to Burlington, supra, for the 2017-2018 school year?

Prong three of Burlington provides that equitable considerations may be considered when fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M.C. v. Voluntown, 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]). With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; see S.W. v. New York City Dep't of Educ., 646 F. Supp. 2d 346, 362-64 [S.D.N.Y. 2009]; Thies v. New York City Bd. of Educ., 2008 WL 344728 [S.D.N.Y. Feb. 4, 2008]; M.V. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181, at *5 [N.D.N.Y. Jan. 2, 2008]; Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 [S.D.N.Y. Nov. 20, 2007]; Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 [S.D.N.Y. 2005], aff'd, 2006 WL 2335140 [2d Cir. Aug. 9, 2006]; Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-61 [S.D.N.Y. 2005]; see also Voluntown, 226 F.3d at n.9; Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001]; Application of the Dep't of Educ., Appeal No. 07-079; Application of the Dep't of Educ., Appeal No. 07-032).

In furtherance thereof, the IDEA permits the denial or reduction of reimbursement when parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing REDACTED from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense" (20 U.S.C. § 1412[a][10][C][iii][I]; see 34 CFR 300.148[d][1]). This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools" (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]). Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision (Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); see Frank G. v. Bd. of Educ., 459 F.3d 356, 376 [2d Cir. 2006]; Voluntown, 226 F.3d at 68; Lauren V. v. Colonial Sch. Dist.; 2007 WL 3085854, at * 13 [E.D. Pa. Oct. 22, 2007]).

The Parent provided due and proper notice to the Department of their intention to enroll STUDENT in a therapeutic residential placement. Beyond this, there is no evidence or testimony to suggest that the Parents operated in nothing other than a cooperative and collaborative manner. The Parents were active participants in their son’s education and did not rely upon the Department to meet all of their expectations. When REDACTED was left without an appropriate school to attend, the Parents acted proactively to secure a placement. Under these circumstances, I find that there are no equitable factors which militate against the Parent’s right to recovery.

Conclusion

I find that the Parents’ request for relief must be granted as the Department stands in gross violation of its Child Find mandate for the 2020-2021 and 2021-2022 school years.

Wherefore, it is hereby ordered that:

Within thirty (30) days of the date of this Order and upon an Affidavit of Attendance, the Department shall reimburse the Parent for tuition expenses at School 1 Preparatory School for the 2020-2021 school year. The Department shall additionally reimburse the Parents for tuition and all reasonable travel expenses incurred during the 2020-2021 and 2021-2022 schools years for REDACTED REDACTED and REDACTED Academy. Reimbursement shall include additional fees for REDACTED Academy, music instruction and participation in REDACTED’s running club. This amount shall represent the Departments total liability pursuant to the Parents’ Due Process Complaint dated August 12, 2021.

Dated: February 7, 2022

L.B. Almeleh, Esq.

Lynn Botwinik Almeleh, Esq.

New York State Certified Impartial Hearing Officer

Persons in Attendance December 15, 2021 For the Parents:

Atty 1, Esq.

Atty 2, Law Clerk

Teacher 1, Supplemental program Program Director, School 1 Prep

Teacher 2, Assistant Academic Director, REDACTED Academy

Parent

For the Department of Education:

No appearance

Persons in Attendance January 25, 2022 For the Parent:

Atty 1, Esq.

For the Department of Education:

No appearance

NOTICE OF RIGHT TO APPEAL

Within 35 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 the parent plans to appeal the decision, a notice of intention to seek review shall be personally served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed so that a certified copy of the hearing record may be prepared for submission by the school district. If a school district plans to appeal the decision, the district shall file a certified copy of the hearing record together with its petition.

An appealing parties' petition for review shall be personally served upon the opposing party within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period. (8 NYCRR § 279.2(b))

The rules of procedure for proceedings before a SRO are found in Part 279 of the Regulations of the Commissioner of Education available at http://www.sro.nysed.gov/part279home.html.

Footnotes

[1] Although the Department did not appear at the December 15, 2021 hearing, neither did it submit evidence or testimony via affidavit.

[2] Frequent 1:1 attention; extended time for both testing and assignments; avoiding asking questions of STUDENT in class or commenting about him “publicly,” language arts and writing support etc. Tr. at 62.

[3] Parent testified that she attempted to shut off the Wi-fi on weekends, but this became problematic for other members of the household.