New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 566444 - NYC: 221797

FINDINGS OF FACT AND DECISION

Student's Name ^[1]: [REDACTED] ("Student")

Date of Birth: [REDACTED]

School District: [REDACTED]

Hearing Requested by: [REDACTED] ("Parent")

Request Date/Date Complaint Filed: November 18, 2021

Date(s) of Hearing: January 6, 2023, February 17, 2023

Actual Record Closed Date: March 17, 2023

Date of Decision: March 31, 2023

Date of Distribution if Different than Decision Date:

Hearing Officer: Lisa S. Rusk, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

JANUARY 6, 2023

For the Student:

[REDACTED], Attorney

[REDACTED], Parent Student

For the Department of Education:

[REDACTED], District Representative

[REDACTED], Special Education Teacher

[REDACTED], Assistant Principal

NAMES AND TITLES OF PERSONS WHO APPEARED

FEBRUARY 17, 2023

For the Student:

[REDACTED], Attorney

[REDACTED], Parent Student

[REDACTED], Counselor, [REDACTED]

[REDACTED], Pediatric Neuropsychologist

For the Department of Education:

[REDACTED], District Representative

INTRODUCTION AND PROCEDURAL HISTORY

This matter comes before the undersigned Impartial Hearing Officer ("IHO") on Parent's Due Process Complaint ("DPC"), dated November 18, 2021. (Ex. P-A) ^[2]. The record does not contain any evidence of a response by [REDACTED] (hereinafter referred to as "the District"). A prior IHO was assigned on April 5, 2022. Based upon a review of the prior transcripts, the previous hearing officer held conferences on May 18, 2022, June 23, 2022, July 25, 2022 and September 12, 2022 and issued five extensions of the compliance date.

Upon the unexpected incapacity and passing of the prior IHO, this IHO was appointed on October 17, 2022. A pre-hearing conference was held on October 24, 2022. Status conferences were held on November 9, 2022, October 28, 2022 and December 9, 2022 while the parties attempted to resolve the matter. Five orders of extension were granted at the request of both parties for settlement negotiations and the availability of witnesses. Hearing dates were held on January 6, 2023 and February 17, 2023. A final extension was granted to permit the parties to submit written closing submissions. Both parties submitted written closing submissions on March 17, 2023.

The District entered into evidence exhibits 1-2 and presented the testimony of two witnesses. The Parent entered into evidence exhibits A-X and Z-GG^[3] and presented the testimony of three witnesses, including the Parent. The record was closed on March 17, 2023.

JURISDICTION

The due process hearing was held, and a decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (hereinafter, "IDEA"), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq. ^[4]

BACKGROUND

The Student was [REDACTED] years old at the time of the hearing request and classified by the District's Committee on Special Education (CSE) with an other health impairment ("OHI"). During the 2020-21 school year, the Student was in the fifth grade. The CSE met on July 22, 2020 and recommended placement in an integrated co-teaching class ("ICT")^[5] for math 2 periods per day, ELA 3 periods per day and social studies 1 period per day. The CSE also recommended the related services of 1:1 counseling for 30 minutes 2 times per week, group counseling for 30 minutes 1 time per week, 2:1 occupational therapy ("OT") for 30 minutes 1 time per week, 1:1 OT for 30 minutes 1 time per week, 3:1 speech language therapy for 30 minutes 1 time per week and 1:1 speech language therapy for 30 minutes 1 time per week. The individualized education program ("IEP") also included the recommendation of a full-time behavior support paraprofessional (Ex. D-1-18-19). The Parent rejected the District's IEP and unilaterally placed the Student at [REDACTED] (hereinafter referred to as "the private school").

ISSUES

The Parent's DPC raises the following procedural and substantive issues regarding the 2020-21 school year IEP's and the District's failure to offer the Student a free appropriate public education (FAPE):

• The District failed to provide a valid or sufficient prior written notice.

• The District failed to recommend a valid school placement.

• The District failed to provide the Parent and the professionals who have worked with the Student meaningful participation in the decision-making process.

• The CSE was invalidly constituted.

• The CSE failed to rely upon and consider sufficient and appropriate evaluative information to justify its recommendations, goals and program.

• The CSE improperly predetermined the Student's program recommendations.

• The District significantly modified the Student's program without consideration of the input of the Parent and the professionals who worked with her resulting in a substantively inappropriate IEP.

• The District made its school placement decision based upon availability of resources, not the Student's individual needs.

• The District failed to notify the Parent in a timely manner of a school placement recommendation to implement the IEP.

• The District committed numerous procedural errors and ignored the Parent's correspondence and requests for clarification.

• The District failed to provide a cogent and responsive explanation for its recommendation and actions.

• The District failed to recommend a program in conformity with NYS regulations.

• The District failed to comply with the timelines established by state and federal regulations.

The District did not present a response to the DPC or present an opening statement but argued in its closing statement that the Student was offered a FAPE for the 2020-21 school year. The District argued that the CSE developed its recommendations based upon the evidence and data provided prior to the CSE meeting, as well as from the input provided by the Parent and the private professionals at the meeting. The District argued that the placement at P.S. 91 was available and was capable of delivering the services listed on the IEP. The recommended program and placement were the least restrictive environment (LRE) for the Student, and a 12:1:1 District class would have been too restrictive. Procedurally, the District argues that utilizing a draft IEP at the CSE meeting was permissible.

With regard to the placement at the private school, the District argues that the Parent has failed to meet her burden. The District argues that there is no evidence to support the Parent's claim that the Student could not be educated in a classroom with more than 10 students. The private school is not the LRE for the Student.

FINDINGS OF FACT

The Parent testified the Student is a creative, sweet and lovable child that loves cats. She has serious difficulties with language and some behaviors that have made school a real challenge for her. The Parent first noticed her behavioral issues in 2013 when she was three years old (T:168). In 2014 in anticipation of the Student's transition to kindergarten, the Parent had her evaluated by pediatric neuropsychologist [REDACTED]. The Parent was concerned that the Student would be overwhelmed and overstimulated if placed in a large classroom (T:169). The neuropsychologist diagnosed the Student with ADHD, oppositional defiant disorder (ODD) and childhood-onset fluency disorder. The Parent testified that the ADHD contributed to her low frustration tolerance, leading to tantrums and elopement. The fluency disorder caused her to struggle with spelling, weak composition skills and lack of language skills, also leading to frustration(T:170).

In 2015, at her Turning-5 meeting, the Student was classified as a student with an OHI and recommended for an ICT classroom (T:170). The Parent did not place the Student in the ICT classroom because in her opinion it was far too large. Instead, she attended kindergarten at [REDACTED] where the class ratio was 10:2. [REDACTED] was not supportive enough for her, and she had a really hard year (T:171). She began the current private school in the first grade. She placed the Student at the private school because the classroom student to teacher ratio was 10:5, a paraprofessional and reading specialist was available and the setting was for "twice exceptional" students (T:172). She remained at the private school from the 2016-17 through 2019-20 school years. The District funded the program up until the school year at issue (T:173).

At the end of 2018, the Parent obtained a neuropsychological evaluation of the Student from [REDACTED]. She testified that she agreed with the recommendations contained in the report, specifically for class placement, because the Student requires a small, structured classroom, staff trained in "twice exceptional" students and a 1:1 behavioral paraprofessional (T:175, Ex. P-B-22). The January 25, 2019 evaluation report refers to her difficulties with sustained attention and related executive functions (B-21). Her behavior at school was variable depending on the demands of the situation. She exhibited explosive temper outbursts at home and at school in which she was aggressive toward adults and posed a safety risk to other individuals (Ex. P-B-21-22). Her 2019 diagnoses included ADHD, combined presentation, ODD (moderate), Intermittent Explosive Disorder and Specific Learning Disorder with impairment in reading (pending confirmation) (Ex. P-B-22). Due to her cognitive difficulties, learning profile and social/emotional difficulties, the evaluation recommended continued placement in a "small (i.e., low student-to-teacher ratio) and structured classroom housed within a small, nurturing special education school that can met her learning needs and provide specialized instruction throughout the day". The report also recommended a 1:1 paraprofessional due to the severity of her issues and her difficulty with self-regulation (Ex. P-B-22-23). The Parent forwarded the report to the District in August of 2019 (Ex. P-C-2). [REDACTED] testified that she first evaluated the Student in May of 2014 and has since reviewed the findings of the 2019 neuropsychological evaluation from [REDACTED]. She agreed with the characterization of the Student as verbally skilled and talkative and her FSIQ of

115 supports her characterization as a "twice exceptional" student. She concurred with the recommendations that she be placed in a low student to teacher ratio structured classroom within a small, nurturing special education school with staff trained to teach students with high cognitive abilities who present with learning, language, attentional or related disabilities. She agreed that the current private school could meet her needs (Ex. P-GG-4-5).

The Parent testified that she attended the CSE meeting on July 22, 2020. The last IEP meeting the CSE had held for the Student was in 2015. The District did not seek to reevaluate the Student prior to the meeting, but she did again send the District the 2019 neuropsychological evaluation (T:176). In anticipation of the meeting, she also emailed the District the private school's reports (Exs. P-Z, P-AA, P-BB, P-CC and P-EE). She testified that at the meeting, the District staff did not agree with her and the private school staff in attendance, but did not give a good reason for recommending the District program (T:176-77). No behavior intervention plan ("BIP") was developed by the District and the neuropsychological was not discussed (T:177). The CSE did review the private school progress reports provided (T:189). She determined the CSE's recommendation was inappropriate (T:178).

The 2020-21 IEP developed on July 22, 2020 is in evidence at Ex. D-1. There is no reference to any evaluations, including the 2019 neuropsychological, on the IEP. The prior written notice references only a social history update from November 20, 2019, which is not in the record (Ex. D-2). The District special education teacher testified that the school psychologist would have reviewed the neuropsychological if provided by the Parent. The IEP contains information from her fourth-grade progress reports. She is reading on a 4th grade level overall. Writing is at the beginning 3rd grade level, and math is at a 4th grade level overall with 1:1 support (Ex. D-1-1). The present levels of performance are verbatim excerpts from the Spring 2020 private school narrative report (Ex. P-F). Her current academic achievement levels for reading, writing, math and speech and language are described. The Parent's concerns regarding academics are included on the IEP (Ex. D-1-3-4). Under social development, her current functioning is cited from the school report card and input is included from the Parent and school staff. Under physical development, a current report is included from her occupational therapist (Ex. D-1-6). The management needs include various strategies to address her behavioral, social, executive functioning and written expression deficits (Ex. D-1-7).

The IEP contains goals related to her reading fluency, written expression, math calculation and word problems, sensory processing, pragmatic language, social language skills during conversation, frustration tolerance, self-regulation/coping strategies and expression of emotions (Ex. D-1-9-17). Each goal contains evaluative criteria, an evaluation schedule and a method for evaluating progress. The IEP indicates that she requires behavioral interventions and that a BIP has been uploaded (Ex. D-1-8). The special education program consists of ICT math 2 periods per day, ICT ELA 2 periods per day and ICT social studies 1 period per day. Her related services are: counseling 1:1 two times per week for 30 minutes and 5:1 one time per week for 30 minutes, occupational therapy 1:1 one time per week for 30 minutes and 2:1 one time per week for 30 minutes and speech-language therapy 1:1 one time per week for 30 minutes and 3:1 one time per week for 30 minutes. The IEP also includes a full time "group" paraprofessional for behavioral support (Ex. D-1-18-19). The IEP includes the Parent's and private school staff's concerns regarding the recommended program (Ex. D-1-25).

District Special Education teacher [REDACTED] (hereinafter referred to as "the special education teacher") testified that this is his twelfth year with the District. He is a NYS certified special education teacher, school building leader and school district leader. He was the special education teacher who participated in the development of the Student's 2020-21 IEP, along with a district representative, general education teacher, the Parent and staff from the private school, including a school psychologist, reading specialist, STEM teacher and ELA teacher (T:97-98). He testified that the IEP recommendations were based upon the evidence and data provided to the CSE prior to the meeting and the input from the Parent and private school staff. Every section of the IEP was reviewed at the meeting (T:100-101). It was discussed that the Student had a low frustration tolerance and needed support with emotional regulation. He did not recall any discussion of tantrums (T:123-24). He testified that during the meeting the CSE recommended an ICT setting with SETSS ^[6], related services and a behavior paraprofessional (T:103). He testified that the IEP and prior written notice contained a mistake, and the ratio for the paraprofessional recommendation should have been 1:1 instead of group (T:122-23). He explained that in the ICT setting there are 2 teachers and up to 32 students, the lesser of 40 % or 12 would be special education students. He described the model as a positive model that allows peers with similar learning profiles to interact and learn from one another (T:104). He testified that the Student's needs were not severe enough for placement in a self-contained 12:1:1 setting (T:105). He testified that related services are built into the Student's daily schedule and may be push-in or pull-out (T:106). The special education teacher testified that based upon the information presented to the CSE the ICT program with SETSS and related services was the most appropriate program for the Student (T:108-109).

The special education teacher testified that the CSE incorporated the behavior intervention plan (BIP) from the private school into the IEP (T:116-17). He testified that he would have written the academic goals and management needs, and the District representative would have completed the present levels of performance (T:117-18). He could not recall if the updated social history was discussed (T:120, Ex. D-2).

The Assistant Principal ("AP") testified that she has been an AP at [REDACTED] since 2011 (T:142). She testified that there are ICT classes at every grade level, and there was room for the Student during the 2020-21 school year. The school has all related services, including speech and OT (T:143). She stated that all paraprofessionals outside of self-contained classes are provided on a 1:1 basis (T:145).

The neuropsychologist testified that she reviewed the July 22, 2020 IEP and that the ICT class would not have been appropriate for the Student because she required more 1:1 support. In addition, no BIP was developed to be implemented in the public school setting. Finally, she opined that a "group" paraprofessional would not have been supportive enough (Ex. P-GG-5).

The Parent testified that on or about August 4, 2020, she wrote to District CSE representative [REDACTED] regarding her concerns with the July 22, 2020 CSE meeting. She did not receive a response (T:178, Ex. P-L). The District recommended on or about August 4, 2020 that the Student receive her program at P.S. 91. She called the number she was provided a few times, but it was not in service. She wrote another letter to the District on or about August 31, 2020, and again did not receive a response (Exs. P-M and P-N). She ultimately re-enrolled the Student at the private school for the 2020-21 school year (T:178-79).

On August 12, 2020, the school psychologist at the private school wrote the Student often engaged in tantrum-like behaviors and elopement from the classroom. Her behaviors could last from minutes to up to an hour. He wrote that the Student required a 1:1 paraprofessional for her supervision and safety. Her emotional, behavioral, social and sensory needs required frequent adult attention to keep her regulated (Ex. P-K-1).

At the private school during the 2020-21 school year, the Student attended from 8:15 am to 3:15 pm from Monday through Thursday and from 8:15 am to 12:00 pm on Friday, beginning each day with morning meeting. Her classes included social studies, computer science, math, ELA, science, health and wellness, art and theater. She received the related service of occupational therapy and several opportunities for social learning/social cognition/speech therapy. She also received additional academic instruction in reading/writing, ELA support and academic tutorial (Ex. P-R).

The narrative report from January of 2021 described the interventions being utilized by the private school with the Student. In ELA, her instruction focused on grammar, punctuation and capitalization. She was provided a differentiated spelling and vocabulary program aligned with the third grade Common Core Standards. She was provided frequent breaks, executive functioning strategies and tools, breaking assignments into manageable tasks and teacher support to complete assignments (Ex. P-U-8). The Student was provided 1:1 support in Reading/Writing in addition to frequent movement breaks, a wobbly chair, student choice, visuals and use of a whiteboard to stay organized (Ex. P-U-9). Her reading level on Fountas and Pinnell at the beginning of the year was a Level U and was a level W by January (Ex. P-U-12). The Student participated in the Singapore math curriculum and Beast Academy and showed understanding on many fifth grade standards. She was provided with 1:1 instruction, small group instruction, frequent breaks, visuals and math manipulatives (Ex. P-U-9-10). Her January 2021 report further elaborates on her progress in occupational therapy, social cognition/speech language therapy and counselling (Ex. P-U-13-15).

The private school counselor testified via affidavit (Ex. P-HH). The District had no cross-examination for the counselor (T:164-65). The private school is an independent school for "twice exceptional" students (gifted students with learning disabilities) in grades kindergarten through 12th grade with a total enrollment of 190 students. Students present with a range of disabilities including learning disabilities, ADHD, emotional disabilities, social-pragmatic deficits, highfunctioning autism (Ex. P-HH-1-2).

The counselor testified that she started at the private school in their lower school in August of 2019, and the Student was assigned to her in August of 2021. She participated in weekly sessions with her to implement her BIP. She reviewed the 2019 neuropsychological evaluation and documents from the private school for the 2019-20 and 2020-21 school years, including her progress reports (Ex. P-HH-3). The private school provided her with a 1:1 paraprofessional during the 2020-21 school year to ameliorate her behaviors and provide her with better access to her education (Ex. P-HH-4).

By the 2020-21 school year, the Student's BIP shifted from reacting to serious behaviors to arresting any disruptive behaviors before they began to interfere with her academics and social progress (see Ex. P-Q). Her academic work progressed during 2020-21. In her Fall 2020 report card, she scored at Independent understanding or Approaching independent understanding in all measures of ELA, Science, Computer Science, Theater, Music and Art. Her Spring mid-term narrative report indicated that she had gained strength in consulting reference materials, using adjectives, reporting on topics, engaging respectfully in a range of collaborative discussions with peers, reading and comprehending poetry, accurately quoting from text, mastering long division, actively participating in class discussions in social studies and displaying creativity. The counselor characterized the Student's time at the private school as a success, enabling her to improve upon her behaviors in a way that allowed her to obtain academic benefit (Ex. P-HH-5-6).

The neuropsychologist also testified that the Student thrived at the private school during 2019-20 and 2020-21. Her behaviors reduced in severity and number. Her behavioral issues and distractibility were significantly ameliorated while at the private school (Ex. P-GG-6).

The Parent testified that she had a great year at the private school during the 2020-21 school year. She saw improvement in flexibility of thinking, a slight reduction in eloping and she developed academic self-confidence. For example, she was able to test on grade level for reading (T:182). She has since moved to a District recommended State approved nonpublic school (T:183).

The tuition at the private school for 2020-21, including the paraprofessional was $130,750 (Ex. P-H). The Parent has paid $17,000. She is unable to pay the balance (T:180-81, 192-93).

CONCLUSIONS OF LAW

The Individuals with Disabilities Education Act (IDEA) provides that children with disabilities are entitled to a FAPE (20 U.S.C. § 1400 [d][1][A]). A FAPE consists of specialized education and related services designed to meet a student's unique needs, provided in conformity with a comprehensive written IEP (34 C.F.R. § 300.13). A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). In order to meet its substantive FAPE obligations, a district must offer a student an IEP that is "reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances" Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988 (2017). If a procedural violation has occurred, relief is warranted only if the procedural violation affected the student's right to a FAPE. 8 NYCRR §200.5[4]; J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 (2d Cir. 2000).

In New York State, school districts have the burden of proof, including the burden of persuasion and burden of production in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement or payment for services for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement (NYS Educ. Law § 4404(1)(c)). (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School Dist. Four v. Carter, 510 US 7 [1993]). It is well settled that an appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]).(Application of a Child with a Disability, SRO Appeal No. 22-154).

If the District is unable to prove that it met its burden under Prong I of the three prong Burlington/Carter test, the Parent in order to meet her burden must establish by a preponderance of the evidence, that the unilateral placement provided "educational instruction specifically designed to meet the unique needs of the student" (Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 [2d. Cir. 2007]. However, the private school placement "need not meet the IDEA definition of a free and appropriate public education" or "state education standards or requirements" (Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d. Cr. 2006]. The private placement need not provide certified special education teachers or an IEP. Parental placements are not subject to the same mainstreaming requirements as a school district placement. The private school placement must be reasonably calculated to enable the child to receive educational benefits, and must be likely to produce progress, not regression.

The standard to apply is whether "[the] unilateral private placement ... provides educational instruction specifically designed to meet the unique needs of a handicapped child" Gagliardo, 489 F.3d at 115):

"No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. 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). Finally, under the third prong of the Burlington/Carter test, equitable factors must weigh in the favor of the parent in order to qualify for an award of tuition reimbursement. Where parents "lack the financial resources to 'front' the costs of private school tuition, and in the rare instances where a private school is willing to enroll the student and take the risk that the parents will not be able to pay tuition costs – or will take years to do so- parents who satisfy Burlington factors have a right to retroactive direct tuition payment relief" (Mr. and Mrs. A. v. New York City Dept. of Educ., 769 F.Supp. 2d 403,428 [SDNY 2011]. Proof of inability to pay is not required to establish the propriety of direct retrospective payment of tuition or fees by a school district (Ferreira and Rojas v. New York City Dept. of Educ., 22 Civ 4993, 123 LRP 9785 [March 14, 2023 SDNY]).

ANALYSIS

As stated above, it is the District's burden to demonstrate that it has offered the Student a FAPE. The Parent alleged numerous procedural and substantive deficiencies resulting in a denial of a FAPE for the 2020-21 school year. The Parent alleges that the District failed to provide a valid or sufficient prior written notice. The prior written notice contains the program recommendations contained on the IEP. While the prior written notice may not have accurately listed the evaluations upon which the determination was based, the record does not support a finding that such a violation standing alone rises to a deprivation of a FAPE. The DPC states further that the District committed numerous procedural errors and ignored the Parent's correspondence and requests for clarification. Unfortunately, the annual review process for this Student occurred during the summer and it appears little or no staff was available to respond to the Parent's correspondence. However, based upon a review of the hearing record, in my opinion, the crux of the Parent's complaint has to do with the program and placement recommendations and not any lack of notice or procedural violations. I will review each allegation separately.

The DPC alleges that the District failed to provide the Parent and professionals meaningful participation in the decision-making process. The IEP lists the input of both the Parent and the private school staff. While the Parent may have disagreed with the ultimate program recommendations, there is no indication that the Parent and the private school staff were unable to meaningfully participate. In fact, what appears to be the entire present levels of performance were based upon the Parent and private school's input. The Parent alleges that the CSE improperly predetermined the Student's program recommendations, but there is no evidence in the record to support that claim.

The Parent alleges that the CSE was invalidly constituted and that the District representative was unable to recommend a NYSED approved non-public school program. The record fails to support this claim. In fact, the special education teacher testified that the CSE in this case had the authority to recommend referral to a nonpublic school (T:108).

The Parent alleges that the District failed to notify the Parent in a timely manner of a school placement recommendation to implement the IEP and failed to comply with the timelines established by state and federal regulations. The CSE met on July 22, 2020. A copy of the IEP was emailed to the Parent on July 24, 2020. On August 3, 2020, the Parent received a school location letter from the District (Ex. P-M-15). I am unable to find that the District failed to comply with any state and federal timelines.

The DPC alleges that the CSE failed to rely upon and consider sufficient and appropriate evaluative information to justify its recommendations, goals and program. The IEP listed the Student's then-current grade level performance in reading, writing and math. The academic performance section of the IEP described the Student's functioning level based on the progress reports of the private school, which included input from his teachers and related services providers. Her social development refers to her issues with frustration tolerance and emotional regulation. The IEP also refers to her issues with tantrums and elopement. It references a need for a 1:1 paraprofessional (Ex. D-1-5). The physical development section refers to her deficits in sensory regulation (Ex. D-1-6).The information contained in the 2019 neuropsychological evaluation is not inconsistent with these reports. Based upon the totality of the information, the CSE had a full understanding of the Student's then-present levels of functioning and needs, as set forth in the IEP.

The IEP proceeds to adequately set forth her annual goals to which the Parent has failed to set forth any specific objection beyond a generalized complaint that they are not justified by sufficient evaluative information. Page 9 of the DPC alleges that some of the goals are appropriate but unrealistic in the context of the recommended program, whereas, page 10 of the DPC alleges that the goals are inadequate in scope and specification. The Parent failed to allege what areas of need were not addressed by the annual goals. I find the goals set forth in the IEP to be satisfactory.

Turning to the recommended program, the Parent objects to the "group" paraprofessional listed on the IEP. However, I find that the designation of a "group" paraprofessional on the IEP was a typographical error. The Parent acknowledged in her correspondence to the District that the CSE recommended a 1:1 paraprofessional for the Student (Ex. P-M-7, 12). Both District staff members who testified stated that they had never heard of a group paraprofessional outside of a special class placement. The IEP also explicitly refers to a 1:1 paraprofessional under social development (Ex. D-1-5). I find that the IEP designation as "group" was an unintended clerical error and not a deprivation of FAPE.

The ultimate determination is whether the District's recommended program of ICT classes and related services was reasonably calculated to enable the Student to attain her IEP goals and achieve meaningful educational benefit. It is uncontroverted that the witnesses that actually knew the Student, along with the evaluative and school reports in the record, stressed that the Student required a small, structured, individualized setting in order for her needs to be met and progress to be made. I am troubled that the only witness who testified in support of the District's IEP recommendations testified more than once to the appropriateness of the ICT program along with SETSS and related services (T:100, 103,105,106,108). He described how SETSS services could be delivered and that an ICT recommendation with SETSS and related services was appropriate for the Student (T:106,108). The IEP does not recommend SETSS services, and the Student would not have received them had she attended the District's program. There is no description in the record how the recommended ICT program with up to 32 students could have provided the Student with the kind of individualized instruction she required in order to make progress or how the listed strategies to address the Student's management needs would have sufficiently supported the Student. I find that the District failed to offer the Student a FAPE for the 2020-21 school year.

Turning to the private school program selected by the Parent, based upon a thorough review of the testimony and evidence, I find the Parent met her burden that the private school provided the Student with specific instruction to meet her unique special education needs during the 2020-21 school year. The uncontroverted testimony reflects that the private school provided her with specific strategies to help regulate her behaviors so that she was available for learning. The BIP in place targeted her interfering behaviors and lessened their severity, frequency and duration. I have considered the District's argument that the private school was not the LRE for the Student. Private schools are not held to the same LRE standard as public schools.

I find that the private school was an appropriate unilateral placement, and the equitable considerations weigh in favor of the Parent.

ORDER

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

1. ORDERED that the District shall reimburse the Parent for tuition paid in the amount of seventeen thousand dollars ($17,000.00) upon presentation of proof of payment; and it is further

2. ORDERED that the District shall pay the private school directly for the balance of the Student's 2020-21 school year tuition in an amount not to exceed one hundred thirteen thousand seven hundred and fifty dollars ($113,750.00) within 30 days of the date of this decision;

SO ORDERED.

DATED: March 31, 2023

Lisa Rusk

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

APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD

PARENT EXHIBITS

EXHIBIT DATE DOCUMENT No. of

A. Impartial Hearing Request 11/18/21 15 pages

B. Psychoeducational Evaluation 1/25/2019 42 pages

C. Consent Form, Fax Receipt, and Cover Letter sending Ex. B to DOE 8/7/2019 3 pages

D. 2019- 2019-2020 Mid-Semester 1 [REDACTED] 2 2020 Progress Report

E. Fall 2019 [REDACTED] Supplemental Report Card Rubric Fall 2019 3 pages

F. 2019-2020 Fall & Spring Combined [REDACTED] Report Card 6/17/2020 16 pages

G. [REDACTED] Behavior Intervention Plan for 2019-2020 11/1/2019 10 pages

H. 2020-2021 [REDACTED] Tuition Contract 5/6/2020 5 pages

I. [REDACTED] Letter from [REDACTED] re: Student's need for 1:1 paraprofessional in 2020-2021 6/15/2020 1 page

J. [REDACTED] Letter from [REDACTED] re: Job Description and Qualifications for [REDACTED] 1:1 Paraprofessional 3/19/2020 3 pages

K. [REDACTED] Letter from [REDACTED] re: Implementation of [REDACTED] 1:1 para 8/12/2020 1 page

L. Parent Email to CSE attaching Letter concerning Jul 2020 IEP and PWN 8/4/2020 13 pages

M. Ten Day Notice to CSE 8/31/2020 15 pages

N. Cover Email for Ten Day Notice (Ex. M) 8/31/2020 1 page

O. CSE Receipt Acknowledging Submission of Ten Day Notice Email (Exs. M & N) 8/31/2020 1 page

P. CSE Response to Ten Day Notice (Ex. M) 9/22/2020 1 page

R. Q 2020- [REDACTED] Behavior Intervention Plan 6 2021 for 2020-2021 2020- [REDACTED] Class Schedule for 2020-2021 2021 1 page

S. [REDACTED] Remote Learning Policies for 2020-2021 9/15/2020 7 pages

T. [REDACTED] Student Attendance for 2020- 2021 6/23/2021 1 page

U. [REDACTED] Progress Report Sept. 2020 – January 2021 1/16/2021 15 pages

V. [REDACTED] Progress Report Jan. 2021 – April 2021 4/18/21 9 pages

W. [REDACTED] Mid-Semester 2 Report Card for 2019-2020 6/15/2020 2 pages

X. Individualized Education Program 6/8/2021 30 pages

Y. WITHDRAWN

Z. Emails from Parent to CSE Attaching Documents for IEP Team 6/17/2020 3 pages

AA. Emails from Parent Reattaching Documents for IEP Team 7/21/2020 4 pages

BB. Emails from Parent to IEP Team Re: Upcoming IEP Meeting 7/21/2020 6 pages

CC. Emails from Parent to IEP Team Re: Upcoming IEP Meeting 7/17/2020 3 pages

DD. [REDACTED] Affidavit Reflecting Parent Payment for 2020-2021 1/27/2020 1 page

EE. Emails Between Parent and CSE regarding CSE's access to documents supplied by Parent 1/21/20 7 pages

FF. Corrected Affidavit Reflecting Cost of 1:1 Paraprofessional 8/11/21 1 page

GG. Affidavit of [REDACTED] 2/15/22 6 pages

HH. Affidavit of [REDACTED] 2/16/22 7 pages

DOE'S EXHIBITS

1. IEP 7/22/20 26 pages DOE

2. Prior Written Notice 9/1/20 4 pages DOE

Footnotes

[1] Personally identifiable information is attached as Appendix A, "Redaction Identification Page," to this decision and must be removed prior to public distribution.

[2] Exhibits shall be referred to as follows: "P" for Parents' Exhibit; "D" for District's or Department's Exhibits; and "IHO" for Impartial Hearing Officer's Exhibits. Exhibits will be followed by the exhibit number and page numbers as needed and appropriate.

[3] A more detailed list of the admitted exhibits is attached as Appendix B, "Documentation Entered Into the Record," to this decision.

[4] The DPC references Section 504 of the Rehabilitation Act of 1973, but no distinct claim was raised under Section 504, and the IHO, therefore makes no findings regarding a 504 violation.

[5] ICT means the provision of specially designed instruction and academic instruction provided to a group of students with disabilities and nondisabled students (8 NYCRR 200.6[g]).

[6] Although not defined in the record or the continuum of services, the District commonly refers to special education teacher support services (SETSS) as a direct instruction service to a special education student.