New York City Department of Education, Impartial Hearing Decision

REDACTED

FINDINGS OF FACT & DECISION

Case No.: 211759

Student’s Name: [Redacted]

(referred to as “Student”)

Date of Birth: [Redacted]

District: [Redacted] – NYC DOE

Hearing Request by: [Redacted]

(referred to as “Parent”)

School: [Redacted]

(referred to as “Private School”)

Date of Complaint: August 24, 2021

Hearing Dates: June 16, 2022

August 23, 2022

Actual Record Close Date: August 23, 2022

Decision Date: September 6, 2022

Hearing Officer: Vanessa M. Gronbach, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 16, 2022

For the Student:

NONE

For the Department of Education:

NONE

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 23, 2022

For the Student:

[Redacted], Parent Attorney

[Redacted], Parent

For the Department of Education:

[Redacted], District Representative

ISSUES

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) through the Parents’ Due Process Complaint (“DPC”) filed on or about August 24, 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, as well as transportation (P-Ex. A).

PROCEDURAL HISTORY

The undersigned was appointed as hearing officer in this matter on December 23, 2021. A prehearing conference was held on January 10, 2022, to discuss the issues in the case. After several status conferences and a lack of communication from the District, a hearing was scheduled for June 16, 2022. The June 16th hearing date was adjourned due to attorney illness. The hearing continued on August 23, 2022, and concluded on that day (See, Transcripts).^[2] The District presented two documents but no witnesses. The Parent presented exhibits^[3] and two witnesses by affidavit. The record closed on August 23, 2022. There were approximately five 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 classified as a student with an Other Health Impairment (P-Ex. A-1). The Student was described as having significant delays in expressive, receptive and pragmatic language, fine motor skills, social skills, sensory motor skills, attentional deficits, social emotional deficits, auditory processing deficits and behavior deficits (P-Ex. A-1).

The Student began receiving services through Early Intervention (P-Ex. O-1). In preschool, the Student attended a center-based preschool program in a 12:1:2 classroom with speech therapy and OT (P-Ex. O-1). The Student struggled that year and in his 2nd year of preschool his program was changed to a small integrated classroom with 9 students and 3 adults (P-Ex. O-1). The Student continued to struggle significantly in the class and mid-year he began receiving counseling both individually and in a group (P-Ex. O-1). The Student was not able to self-regulate, was unaware of other people, was very self-directed, and his behavioral and attentional challenges impeded his learning (P-Ex. O-1). With 1:1 support he was able to learn but without it, he struggled and could not function appropriately (P-Ex. O-1).

On May 12, 2020, the District’s Committee on Special Education (“CSE”) met to develop an IEP for the Student (P-Ex. O-2). The Parent and the school psychologist from the Private School participated by telephone (P-Ex. O-2). According to the Parent, the CSE did not discuss any evaluations of the Student or goals during the meeting (P-Ex. O-2).

During the IEP meeting, the Parent explained that the Student continued to need a very high level of individual attention, instruction, and support in order to function appropriately and to learn (P-Ex. O-2). It was also discussed that the Student had disruptive and unsafe behaviors and needed continual 1:1 attention and support to address his behaviors that interfere with his learning, even in his smaller classes and supportive school setting (P-Ex. O-2). The Parent also stressed the Student’s need to have the support of a 1:1 crisis management paraprofessional to address his behavioral needs for the upcoming school year (P-Ex. O-2). The school psychologist from the Private School provided the CSE documentation to this effect, but the CSE refused to consider recommending behavior supports (P-Ex. O-2). The Parent shared her concern that the Student would be unable to function and learn in a classroom without appropriate behavioral supports, including the support of a 1:1 crisis management paraprofessional (P-Ex. O-2). The CSE instead said that the public school he attended would have to assess his behaviors and determine if he needed behavioral supports once he was attending the public school, which would inappropriately have required the Student to start school in a program without behavioral supports in place (P-Ex. O-2).

The CSE recommended a 12:1:1 classroom program (5 periods per week of math and ELA and 3 periods per week of social studies and science) with counseling, occupational therapy and speech language services (D-Ex. 1; P-Ex. O-2). The Parent was concerned that the classroom would be too large and overwhelming since the Student had attended much smaller, more supportive classes during the 2019/20 school year, and still had a lot of challenges that required substantial additional support (P-Ex. O-2). Despite the Parent’s concerns, she stated that she would consider the 12:1:1 program, however she only received the school location letter after requesting it on August 24, 2020 (P-Ex. C; O-2-3).

In the August 24, 2020 letter, the Parent also informed the District that she had not received a copy of the IEP either (P-Ex. C). After receiving a copy of both, the Parent continued to have concerns regarding the IEP recommendation and the lack of behavior supports, specifically the fact that the IEP indicated that the Student did not need any behavioral supports (D- Ex. 1; P-Ex. O-3).

The Parent was also concerned that the IEP recommended OT for only 1 time per week when during the meeting, she had understood OT would be recommended 2x30 per week to meet his sensory motor challenges (D- Ex. 1-19; P-Ex. O-3). The IEP also inaccurately indicated that the Student was diagnosed with ADHD, however he had never received such a diagnosis (D-Ex. 1-4; P-Ex. O-3). Despite her concerns, the Parent spoke to the school psychologist at the proposed public-school location (she was unable to visit due to COVID) (P-Ex. O-4). The Parent was told that there were already 12 students enrolled at the start of the school year, and it was not made clear how the class would accommodate the Student as well (P-Ex. O-4). In addition, the Parent was told that the Social Studies class was only provide 2 periods per week, whereas the IEP specified 3 periods per week (D-Ex. 1-19; P-Ex. O-4). Regarding the Student’s behavioral challenges, the Parent was told that the school would have to evaluate his behaviors and come up with a plan to address them after he began attending the program (P-Ex. O-4). This was very concerning to the Parent since it meant the Student would be without behavioral supports for an indeterminate amount of time at the start of the school year (P-Ex. O-4). The Parent was also told that direct instruction in social skills was not provided at the public school, which is an area of need for the Student (P-Ex. O-5).

Because the Parent did not receive an appropriate IEP or placement for the Student, the Parent enrolled the Student at the Private School for the 2020/21 school year (P-Ex. J; O-5). The Parent has not been able to make payments to the school due to limited financial means (P-Ex. L; M). According to the Parent, the Student made significant progress during the 2020/21 school year (P-Ex. O-6).

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 only presented two documents, the May 2020 IEP and the Prior Written Notice, but did not present witnesses to explain the recommendations made in the IEP, why a Functional Behavior Assessment could not be completed at the Private School before the end of the school year, how the Student’s behaviors would be addressed, or to explain whether or not the recommended public school could actually provide the supports recommended in the IEP. The District failed to meet its burden in demonstrating that FAPE was provided to the Student for the 2020/21 school year, therefore 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 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 Private School’s Language Curriculum Coordinator (“LCC”) and Director of Related Services testified regarding the Private School and the Student by affidavit (P-Ex. N). As part of her duties, she prepares and implements language programming, trains teachers on incorporating language-based lessons in the classroom, attends team meetings for each student, administers and analyzes speech-language assessments, collaborates with related services providers, reviews evaluations and progress reports, and works with the school psychologist and administration to implement supports such as behavior plans (P-Ex. N-1-2).

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. N-2). The students enrolled at the Private School share common learning disabilities and social-emotional challenges and include students with language processing disorders, dyslexia, Attention Deficit Hyperactivity Disorder (“ADHD”), Executive Function Disorder, Auditory Processing Disorder, and other challenges (P-Ex. N-2).

During the 2020/21 school year, the Private School enrolled 54 students (P-Ex. N-2). The school’s curriculum is based on New York State Common Core standards, with accommodations developed for each student’s needs (P-Ex. N-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. N-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. N-2). Teachers also use other instructional methodologies, including, but not limited to, the Wilson Reading System and Verbalizing & Visualizing (P-Ex. N-2). Teachers provide direct and systematic instruction in small groups, 1:1 instruction when needed, behavior modifications, multi-modality input (with visual/auditory/ tactile methods), review and repetition, incremental teaching, scaffolding, mnemonics, and feedback (P-Ex. N-2). Teachers participate in 4 full days of teacher/staff training, formal training sessions are held on a monthly basis, and staff undergo a two full days of professional development per year (P-Ex. N-3). The Private School also provides training for our students’ parents/guardians, to enable carryover of skills and supports to the home and community environments (P-Ex. N-3).

When grouping students into specific classrooms, the Private School considers each child’s age, academic and behavioral needs, and social and emotional development (P-Ex. N-2). Students are grouped so that they are placed with similarly aged peers, i.e., within two years of each other in terms of age, to ensure social and emotional compatibility, and a student’s ability within a given subject is also considered in making decisions concerning class grouping (P-Ex. N-2). Students may be regrouped during the course of the school year based on individual performance as measured against that of their classmates, as reported by the student’s teachers and therapists (P-Ex. N-2). Each new student is assessed for language and reading proficiency, motor deficits (P-Ex. N-3).

The Student began attending the Private School in September 2018 and attended the program for the entire 2020/21 school year (P-Ex. N-3). The Student was assessed at the beginning of the 2020/21 school year and presented with scattered skills, with deficits in attention and focus while listening to spoken paragraphs, creating meaning from oral narratives and text, answering questions about the content of the information given, and the ability to use critical thinking strategies for interpreting beyond the given information (P-Ex. N-3-4). The Student also presented with oral motor deficits, including decreased strength and range of motion of the oral articulators and inability to imitate clinician’s model for diadochokinetic tasks; with oral sensory seeking behaviors such as putting his fingers in his mouth, biting on his clothing, and mouthing objects in his immediate vicinity and sucking on his hair (P-Ex. N-4). The Student’s pragmatic/social communication challenges included difficulty with communicative intentions (requesting information/action, conveying information, expressing attitude/emotion, and regulation of social interactions) and conversational abilities (maintaining attention and focus, establishing and maintaining topic, presupposition, turn taking, using politeness markers, and asking for clarification and/or repetition) (P-Ex. N-4). The Student’s greatest challenges however were his dysregulation, impulsivity, self-directed behaviors, poor attention, inability to sustain focus, and anxiety (P-Ex. N-4). He had difficulty understanding physical and verbal boundaries, behaved in a socially inappropriate manner towards his peers and challenged his teachers (P-Ex. N-4). The Student had low tolerance for frustration, often employed physical aggression which included kicking, banging, or throwing objects, and his emotions were highly labile, laughing when inappropriate and crying and/or yelling when reprimanded (P-Ex. N-4). During recess or lunch times, he would seek to gain the attention of the older boys by jumping on their backs, wrapping his hands around their necks and his legs around their waists, and he often poked others in the back using either his finger or his full hand (P-Ex. N-4). The Student demonstrated difficulty with adapting at the start of the school year; was unable to comply with classroom or school rules without significant support; continuously disrupted classroom learning, argued with teachers and classmates alike, and once, when told to return a classmate's pencil, he pushed the point of the pencil into the other child’s hand, saying that he did not want the pencil any longer (P-Ex. N-5).

The Student also demonstrated poor executive functioning skills in the areas of impulse control, emotional control, flexible thinking, self-monitoring, organization, concentration, analysis and processing of information, and problem solving (P-Ex. N-5). Transitioning from class to class was difficult as he was unable to organize himself, dragging his jacket along the floor, and spilling materials out of his open and overstuffed backpack (P-Ex. N-5). To address his difficulties, the Private School developed and implemented a behavioral plan and social/ emotional supports, as well as a 1:1 crisis management paraprofessional to assist with his aggressive, unsafe and inappropriate behaviors, ensure the safety of others, and allow normative learning activities to continue in the classroom and in the school environment (P-Ex. N-5).

The Student also presented with concerns related to occupational therapy in areas such as sensory seeking behaviors, attention and focus, regulation, coordination, visual motor and visual perceptual skills, motor planning, following directions, fine and gross motor skills, and handwriting (P-Ex. N-5). The Student had great difficulty with activities of daily living (ADLs) with regard to personal hygiene, the ability to dress himself independently, and keeping himself groomed (P-Ex. N-5).

For the 2020/21 school year, the Student was placed in a cohort group of 6 students, which would break down into smaller units for individual subjects, based on the students’ respective abilities in each subject (P-Ex. N-6). His teachers used the Orton Gillingham approach, direct and systematic instruction, Verbalizing & Visualizing®, behavior modification techniques, multi-modality input (visual/auditory/tactile), review and repetition, incremental teaching, scaffolding, mnemonics, and feedback to address his academic needs (P-Ex. N-6). The Orton Gillingham approach was successfully implemented for reading courses in both English and Hebrew (P-Ex. N-6). This approach facilitated learning as it allowed for children with deficits in phonological and/or auditory processing to use multiple sources of intelligence to master challenging material and information (P-Ex. N-6). Instruction was paced to accommodate the Student’s abilities and the introduction of new materials was geared to take into consideration individual strengths and difficulties (P-Ex. N-6). ELA focused on development of fundamental critical thinking skills, including developing schema, increasing vocabulary, describing experiences through senses, appropriate sentence structure, retelling information sequentially, responding to WH questions, making associations, categorizing, maintaining topic, understanding the perspectives of others, and following one/two-step directions (P-Ex. N-10).

The primary focus of the Student’s math course was to build knowledge of place value, learn and understand how to round numbers, and develop greater competency with addition and subtraction (P-Ex. N-9). The instructional continuum included counting numbers of greater value, estimating and rounding to the nearest 10, understanding and solving word problems, addition and subtraction with regrouping and the development of the language of mathematics (P-Ex. N-9). Later in the school year, multiplication and division were introduced, as was identifying key words recognition to aid in solving math problems (P-Ex. N-9). Supports included the use of manipulatives, hands on learning, incremental instruction, spiraling of information taught, the use of songs to retain new information, daily reviews, and the use of visual supports (P-Ex. N-9).

The focus of the writing course was for students to learn how to identify and produce a variety of sentences and learn how to draft writings, leading up to the production of paragraphs (P-Ex. N-10). The Student needed a lot of individual support in order to develop his writing skills, and he was provided with consistent support, as well as 1:1 instruction, which was scaffolded and delivered using multiple modalities (P-Ex. N-10). An individualized writing plan for instruction was created by his occupational therapist to help remediate his fine motor and writing skills deficits (P-Ex. N-10).

The Student was also provided with a sensory diet to provide him with sensory input to help with regulation, impulsivity, focus, and attention (P-Ex. N-6). The sensory diet was developed and revised as necessary by the occupational therapist (P-Ex. N-6). The Student also had an individualized handwriting program developed by the OT which was implemented in all of his classes and was adjusted throughout the school year to meet the Student’s presenting needs (P-Ex. N-6). During Lunch a supervising teacher was assigned to a table in the school lunchroom with 8 students (P-Ex. N-9). Instruction during lunch included introduction of table manners and nutritional concepts, presentation of dining etiquette, role playing, and feedback (P-Ex. N-9).

The Student also had a personalized behavior plan developed by the School Psychologist, in conjunction with his classroom teachers, which included Zones of Regulation, to increase metacognition of his behaviors; behavior charts to aid in identifying his emotions; a daily schedule introduced during the arrival period and classroom reminders to reduce transitioning challenges; a sensory plan to help with regulation, an alert system to keep him focused; provision of positive feedback for appropriate behaviors; and a token economy and positive behavior support system for his social-emotional needs (P-Ex. N-6). Teachers and the 1:1 paraprofessional implemented the behavior plan throughout the day, and meetings were held with the Parent in order to facilitate parent training for carryover of the behavioral plan in the home environment (P-Ex. N-6).

In addition to his classroom instruction, the Student received related services of: Occupational therapy, 3 x 30 minutes per week (individual); Speech-language therapy 2 x 30 minutes per week (individual); Counseling 1 x 30 minutes per week (Social Skills Group), and 1 x 30 minutes per week (individual) (P-Ex. N-11). Skills targeted during occupational therapy sessions included attention and focus, regulation, sensory seeking behaviors, following directions, visual motor, fine motor, balance, oral motor and gross motor skills, and handwriting (P-Ex. N-11).

The Private school transitioned to remote instruction on October 14, 2020 until November 2, 2020, due to COVID-19 (P-Ex. F; N-12). 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 (P-Ex. N-12). The Student continued receiving instruction and related services during remote learning, supported by his 1:1 paraprofessional, and continued to make important gains towards his targets (P-Ex. N-13).

With respect to the student’s progress at the Private Schools, a finding of progress is not required for a determination that a student's unilateral placement is adequate, but it is a relevant factor to be considered (Gagliardo, 489 F.3d at 115, citing Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21, 26-27 [1st Cir. 2002]). Here however, as a result of the special education methods and supports provided, the Student made progress, academically, socially, and behaviorally. Progress was measured by teachers, informally, through assessments, and progress reports (P-Ex. G; H; N-12).

At the beginning of the 2020/21 school year the Student had difficulty with phonemic awareness, and alliteration and rhyming (P-Ex. N-8). Target skills included increasing phonemic awareness and increasing knowledge of phonemic/grapheme relationships, as well as improving blending, fluency, comprehension when reading; and recognition and production of long vowel sounds in words were taught (P-Ex. N-8). By the end of the school year, he learned to decode multisyllabic words, improved his auditory memory, increased his phonemic awareness, was able to apply the reading strategies taught to him to reading long vowel and long vowel/short vowel combination words, his ability to read common high frequency words by sight had improved; and his vocabulary had increased (P-Ex. N-8; N-10). The Student could produce sentences that were more semantically, syntactically, and morphologically correct; was able to ask and respond to who, what, where when and why questions to demonstrate key details in a story; and he learned to infer information based on stories read and to retell stories using visual support (P-Ex. N-11).

The Student also made progress in math during the 2020/21 school year (P-Ex. N-10). The Student developed greater number sense; he became more adept with addition and subtraction; learned to multiply and divide; was also able to round numbers to the nearest 10; and became more adept with understanding and completing math word problems (P-Ex. N-10). In writing, the Student expanded his ability to communicate his thoughts, ideas, and opinions; he expanded his knowledge of sentence structure; developed the ability to expand his writing on the sentence level using question words, accurate tenses, and writing more than one sentence type; was able to compose a paragraph by the end of the school year, with substantial support; and his handwriting also improved (P-Ex. N-10).

The Student also made progress in areas related to OT intervention, as demonstrated by his increased focus, attention, and self-regulation, and his visual motor abilities improved (P-Ex. N-11). The Student also demonstrated growth in his fine motor skills; demonstrated better coordination and handwriting skills; his sensory seeking behaviors decreased, and his teachers reported that he was more able to remain seated in his chair, for longer periods of time, without wiggling or losing his sitting balance (P-Ex. N-11). In Speech, the Student made progress with understanding spoken paragraphs, his syntax developed, he was more capable of understanding relationships between words based on meaning features, function, or place or time of occurrence, and his ability to follow directions had improved (P-Ex. N-11). As a result of therapeutic interventions from counseling (individual) and in a group (Social Skills Group), the Student was somewhat more self-aware of how his behaviors affect others by the end of the 20-21 SY (P-Ex. N-12). He demonstrated a better understanding of the needs of others, which prosocial behaviors his peers responded to; he became more aware of when he was in a state of dysregulation and, at times, was able to utilize calming strategies to calm himself (P-Ex. N-12). 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. In contrast, the District ignored the Parent’s concerns and failed to provide the Student with behavioral supports in order to transition the Student from the Private School to the public school.

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 District shall directly pay the Private School. 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 and provide special door-to-door transportation with limited travel time of no more than 45 minutes on a climate-controlled minibus.

SO ORDERED

DATED: September 6, 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.

PARENT EVIDENCE

DISTRICT EVIDENCE

NONE

Exhibit

Date

Title of Document

Pages

A 08/04/2021 Impartial Hearing Request with Pendency Form 8

B 9/17/2021 Approved Pendency Form 2

C 08/24/2020 Letter from Parent to District 4

D 10/29/2020 Letter from Parent to District 5

E Undated Private School Mission Statement 1

F 2020-2021 Remote Learning Plan 2

G Fall 2020 Private School Progress Report 5

H Spring 2021 Private School Progress Report 5

I 2020-2021 Class Schedule 1

J 09/08/2020 Tuition Contract for 2020-2021 School Year 2

K 06/07/2022 Affidavit of Payment 1

L

2020

U.S. Individual Income Tax Return

2

M

2021

U.S. Individual Income Tax Return

2

N 06/09/2022 Affirmation of Director 16

O

06/09/2022

Affirmation of Parent

6

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.