Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

221836

Redacted

Redacted

Parents

Martin J. Kehoe III, Esq.

July 18, 2022

221836

Redacted

Redacted

Parents

Martin J. Kehoe III, Esq.

July 18, 2022

Case Number:

Student’s Name:

District:

Hearing Requested By:

Hearing Officer:

Actual Record Close Date:

Table of Contents

I. Introduction 2

II. Overview 2 a. Parents’ Position 3 b. District’s Position 4 c. Background of the Case 5

2020-2021 SY 5

d. Student History 6 e. Legal Overview 9

III. Prong I 11 a. Did the District Present a Prima Facie Case? 11 i. Legal Standard 11 ii. Analysis 14 iii. Conclusion 21

IV. Prong II 22 a. Legal Issue: Did the Parents Establish the Appropriateness of the Private Placement? 22 i. Legal Standard 22 ii. Analysis 23 iii. Conclusion 37

V. Prong III 37 a. Legal Issue: Did the Parents Cooperate with the District? 37 i. Legal Standard 37 ii. Analysis 39 iii. Conclusion 39

VI. Compensatory Education 40 a. Issue: Is Compensatory Education Appropriate in this Case? 40 b. Legal Standard 40 c. Conclusion 42

I. Introduction

This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer (IHO) in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (IDEA) and the New York State Education Laws. The School District will be referred to as District, the parent(s) as Parent(s) and the student will be referred to as Student.

The scope of the impartial hearing is limited to the issues raised in the DPC. 8 NYCRR 200.5 (j)(1)(ii), 20 U.S.C. 1415(F)(3)(B), B.P. v. New York City Dep’t of Educ., 841 F. Supp. 2d 605, 611 (E.D.N.Y. 2012); R.C. ex rel. M.C. v. Byram Hills School Disst., No. 11 civ. 3938, 2012 WL 5862736, p. 11 (S.D.N.Y. Nov. 2012). Issues and allegations not contained within the four corners of this complaint are not to be considered pursuant to the applicable case law and regulations cited above. Similarly, any claims set forth within the DPC that were not addressed at the hearing should not be considered as they are considered abandoned. Application of a Child With A Disability Appeal 08-037 and Application of a Child With A Disability Appeal 10-067, pg. 9, n. 9.

II. Overview

This case primarily involves a demand for tuition reimbursement for the 2021-2022 school year (SY), thus I will treat it as a “reimbursement” case. A board of education may be required to reimburse parents for their expenditures for private education services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim. Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); Sch. Comm. Of Burlington v. Dep’t. of Educ., 471 U.S. 359, 369-70 (1985). The analytical framework for deciding a reimbursement case is typically called a three-prong analysis.

The Parents also made a claim relating to “compensatory education” for the 2020-2021 SY. Regarding the remedy of compensatory education, I find guidance in Reid v. District of Columbia, 401 F.3d 516, (D.C. Cir. 2005) (finding that compensatory education is not a “form of damages” because the courts act in equity when remedying IDEA violations and must “do equity and... mould each decree to the necessities of the particular case”) (quoting Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944)); See also, Wenger v. Canastota, 979 F. Supp. 147, 150-51 [N.D.N.Y. 1997].

The Parents filed the complaint notice on November 19, 2021. (Ex. A) I was appointed as the IHO on November 22, 2021. A hearing was held across multiple dates.^[1] The Parents introduced exhibits A-I into the record and called four (4) witnesses: the Founder and Head of School at the Private School (the Head of School); the Assistant Head of School at the Private School (the Assistant Head of School); the Clinical Director and Therapist at the Private School (the Clinical Director); and the Parent/Mother. The District offered exhibits 1-11 but did not call any witnesses. However, the District cross-examined two (2) of the Parents’ witnesses. Both the Parents and the District submitted closing briefs on July 14, 2022, which are included in the record as IHO #1 and IHO #2, respectively. a. Parents’ Position The Parents allege that the District failed to offer the Student a Free Appropriate Public Education (FAPE) for both the 2020-2021 and 2021-2022 SY. (Ex. A-1)

The Parents are pursuing a finding that the District failed to offer the Student a FAPE and as a remedy, the Parents seek the following:

• • Prospective placement at the Private School for the FAPE violations during the 2020-2021 SY;
• • Direct payment for the cost of unilateral placement at the Private School for the 2021-2022 SY; and
• • Reimbursement for the cost of occupational therapy services Parent obtained during the summer of 2021. (Ex. A-7)

The Parents maintain that the unilateral placement at the Private School is appropriate for the Student. Additionally, the Parents hold that the equities are in their favor. (Ex. A.7-8) b. District’s Position The District asserts that they offered the Student a FAPE for both the 2020-2021 and 2021-2022 SYs.

In developing the Student’s Individualized Education Plan (IEP), the District notes that they obtained relevant information regarding the Student’s intellectual, academic, language, social-emotional, adaptive, and physical functioning. (T. 35-36) They also note that appropriate team members participated at the Committee on Special Education (CSE) meeting and that their recommended placement is tailored to the Student’s needs. (T. 36)

Lastly, they argue that the equities favor the District, thus the Parents are not entitled to the requested relief. (T. 37) c. Background of the Case

2020-2021 SY

On June 19, 2020, a CSE meeting was held to develop an IEP for the Student for the upcoming 2020-2021 SY. In attendance was the Parent, the District Representative, the School Social Worker, the School Psychologist, and the Preschool Special Education Teacher. (Ex. 4.23-24)

At the meeting, the CSE recommended a specialized integrated program, specifically designed for children with Autism. Along with Integrated Co-Teaching (ICT) services, the team recommended a variety of related services.^[2] (T. 36 & Ex. 4.16-17)

2020-2021 SY

On June 18, 2021, the CSE met for an annual review meeting. This time in attendance was the Parent, the Related Service Provider/Special Education Teacher, the General Education Teacher, the District Representative, the Speech Teacher, the Occupational Therapist, and the Assistant Principal. (Ex. 2-24)

The CSE team’s recommendations were nearly identical to the prior year’s; however, some notable changes include a reduction in Occupational Therapy and Speech Language-Therapy as well as the removal of Parent Counseling and Training. (Ex. 2.15-16).^[3]

Following the meeting, on September 10, 2021, the Parents signed a contract, agreeing to unilaterally enroll their child at the Private School for the 2021-2022 SY. (Ex. I) The Parents sent the District a ten-day notice letter on September 15, 2021, in which they rejected the District’s recommended program and placement.

In the letter, the Parents advised the District that they unilaterally placed the Student and would seek public funding for tuition. (Ex. B) The Parents noted that the District failed to conduct initial “turning five” evaluations when the Student entered kindergarten the prior year. However, the Parents remained amenable to resolving the matter before they ultimately filed the complaint notice on November 19, 2021. (Ex.s B-2 & A) d. Student History The Student was about five (5) years old at the start of the 2020-2021 SY. He is described as “a wonderful, lovable, sweet child.” (T. 85) During the SYs at issue, the Student carried a disability classification of Autism.^[4] (Ex. 4-1) Prior to the start of the SY, on May 5, 2020, the District conducted a psychological evaluation of the Student. (Ex. 9)

In their evaluation of the Student, the District utilized the following assessment methods: Parent Interview; Classroom Observation; Vineland Adaptive Behavior Scales – Third Edition (Vineland-3); and Gilliam Autism Rating Scales – Third Edition (GARS-3).^[5] (Ex. 9-1)

The findings of the evaluation are as follows:

Communication/Activities of Daily Living

According to the Vineland Adaptive Behavior Scales-Third Edition (Vineland-3) (5/5/2020) with the parent as the rater, [the Student’s] adaptive functioning was assessed to be in the Moderately Low range. However his Communication and Daily Living Skills were in the Adequate (average) range. He responds to parents voice, responds to his name, understand the meaning of "yes", knows at least 50 words, says at least 50 words, uses nouns and verbs and negatives in sentences.

Socialization

Vineland-3 with the parent as the rater, [the Student’s] Socialization skills were rated to be Moderately Low and his relative weakness. He shows affection, smiles in response to praise, uses words to express himself, shares when told to do so. However, he does not try to interact with others independently, show interest in children his age, or talk about his interests. He also has some difficulty with transitions, coping with disappointment, and following limits.

Motor Skills

According to the Vineland-3, [the Student’s] Motor Skills are in the Adequate range. He is able to open doors by turning doorknobs, write using pencils or markers, use a twisting hand motion, draw circle and triangle freehand, safely climb objects, throw balls with one hand, and run smoothly without falling. He does not yet ride a bicycle, or color pictures completely inside the lines.

According to the Gilliam Autism Rating Scale Third edition (GARS-3) completed by the parent (5/5/2020), [the Student] achieved an Autism Index which fell within the severity level indicating that "The probability of Autism Spectrum Disorder (ASD) is Probable." He makes rapid lunging movements. He does not initiate conversations with others. It is somewhat like him to pay little attention to peers, follow gestural cues, display little to no excitement when showing toys to others, shows minimal or no response when others attempt to interact with him, and shows no little to no interest in other people. (Ex. 9.1-2)

On or about September 15, 2021, the Private School administered a Functional Behavioral Assessment (FBA) to identify some of the Student’s the problem behaviors. In the report, the Evaluator wrote the following:

Self-awareness-Always verbally acknowledge the positive efforts or positive social behaviors that [the Student] exhibits on a frequent basis. [The Student] will identify positive social initiatives and feedback by verbally prompting him into an observation of appropriate social interaction and physical movement of others while displaying positive social behaviors. By the formulation of re-establishing social behavior, we can disturb the habitual negative social/thought pattern and help [the Student] retain a clear understanding of how to behave/verbalize and use appropriate social ability and how he thinks regarding his emotions when in public or at home. It is essential that [the Student] find positive peer/staff/family role models currently in his life to assist him with the understanding that he has many more options to gain the attention and sensory needs he tends to seek. Once [the Student] feels confident in his ability to alter his social interactions and emotions there will be a change in his overall social behavior. [The Student] is to be redirected when needed when in public establishments. [The Student] is to be frequently recognized for any effort he displays no matter how minor the efforts may be. My goal is to reestablish a new positive thought process when negative thoughts arise. (Ex. H-1)

The Evaluator noted that the Student struggles at home, in school, and in public social environments. Additionally, the Student presents significant behavioral issues and is prone to being “socially provoked by his peers or school staff”, causing him to “react with negative behavior patterns.” (Ex. H-2)

The Private School utilized this data to develop a Behavior Intervention Plan (BIP) for the Student. Under the “Intervention Strategies”, the Evaluator suggested the following:

[The Student] will work on understanding himself and building trusting and positive relationships between himself, his peers, and his teachers/family. [The Student] will be verbally redirected when needed, as well as verbally prompted to help him stay on task confident in himself and in his positive social ability. [The Student] will understand what to do and what not to do in his educational and home setting through simple, positive, interactions with his educational team and family. For every behavioral/conversational difficulty [the Student] displays, there will be a strategy in place to modify or enhance the behavior/action. Each problem behavior will be corrected with the collaboration and understanding of [the Student’s] educational team and family. [The Student] will receive feedback that is more positive and positive interactions with his peers, educational team, and family to help build his overall confidence in himself and his social surroundings. [The Student] will show gains if we cheer him on, understand his reasoning behind his actions, and acknowledge his efforts, similar to a coach/role model. (Ex. H.2-3)

The BIP also included several antecedent strategies to reduce triggers for problem behaviors and increase success for new behaviors. (Ex. H-3) The Evaluator concluded the FBA/BIP by recommending close progress monitoring of the Student. (Ex. H-5) e. Legal Overview The IDEA is a comprehensive statutory framework established by Congress to aid the states in providing disabled children with a free appropriate public education (“FAPE”). 20 U.S.C. § 612(a)(I). “A [FAPE] is available to all children with disabilities residing in the state between the ages of 3 and 21.” 20 U.S.C. § 612(a)(1)(A). The IDEA defines a FAPE as special education and related services that:

(A) have been provided at public expense, under public supervision and direction, and without charge,

(B) meet the standards of the state educational agency,

(C) include an appropriate preschool, elementary, or secondary school education in the state involved, and

(D) are provided in conformity with the individualized education program required under § 614(d) of this title. 20 U.S.C. § 601(9).^[6]

A FAPE is crafted through the collaboration of the disabled student’s parents, teachers, and school district administrators and is recorded in an IEP. 20 U.S.C. § 614(d). The “core of the statute … is the cooperative process that [IDEA] establishes between parents and schools.” Schaffer v. Weast, 546 U.S. 49, 53 (2005). The IEP is, in brief, a comprehensive statement of the educational needs of a disabled child and the specially designed instruction and related services to be employed to meet those needs. 20 U.S.C. § 601(14). In New York State, the IEP is produced by a committee on special education (“CSE”), whose members are appointed by the board of education or trustees of the school district. N.Y. Educ. Law § 4402(1)(b)(1) (McKinney Supp. 2005).

The IDEA provides numerous procedural safeguards to protect the due process rights of disabled children and their parents. See generally, 20 U.S.C. § 615. These procedures include the opportunity for parents to obtain an IEE of the child (20 U.S.C. § 615(b)(I)) and file a complaint with the state or local educational agency (20 U.S.C. § 615(b)(6)). Any such complaint is resolved through an “impartial due process hearing” in which parents of disabled children have “an opportunity to present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a [FAPE] to such child.” 20 U.S.C. § 615(b)(6). Parties to an administrative proceeding under the IDEA have the right to written findings of fact and decisions on any complaint about the provision of a FAPE. Polera v. Board of Education Newburgh, 288 F.3d 478, 482 (2nd Cir. 2002).

In New York State, “[t]he board of education or trustees of the school district or the state agency responsible for providing education to students with disabilities shall have the burden of proof, including the burden of persuasion and burden of production, in any such impartial hearing …” N.Y. Educ. Law § 4404 (1)(c), modifying the rule enunciated in Schaffer where “[t]he burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief.” Schaffer, 546 U.S. at 537.

III. Prong I a. Did the District Present a Prima Facie Case? i. Legal Standard

Procedural Standard

Detailed procedural provisions lie at the heart of the IDEA. 20 U.S.C. §§ 612 and 615; 34 C.F.R. §§300.300-300.576; Evans v. Rhinebeck Central School District, 930 F. Supp. 83 (S.D.N.Y. 1996); B.E. R.R. v. State Bd. of Educ. 874 F.2d 1036, 1041 (5th Cir. 1989). In order to achieve the goal of providing all children with eligible disabilities with a FAPE, the IDEA statute requires that the states comply with “extensive procedural rights and safeguards” in order to receive federal funds for use in special education programs. See 20 U.S.C. § 615(a); LIH v. New York City Board of Educ., 33 IDELR 1 (E.D.N.Y. 2000); J.G. v. Board of Education of the Rochester City Sch. Dist., 830 F.2d 444, 445 (2d Cir. 1987).

The United States Supreme Court has made it clear that the Act’s procedural guarantees are not mere procedural hoops through which Congress wanted state and local educational agencies to jump. See Brandon R.R. 874 F. 2d at 1041, Walczak v. Florida Union Free School Dist., 142 F.3d 119, 122 (2d Cir. 1998). Rather, the formality of the Act’s procedures is itself a safeguard against arbitrary or erroneous decision making. The United States Supreme Court has articulated that material procedural violations, in and of themselves, often can constitute failures to provide a FAPE. In fact, a single material violation of the Act’s procedural guarantees is a sufficient ground for holding that a school district failed to provide a FAPE. Id.

For this reason, the Supreme Court held in Board of Education v. Rowley, 458 U.S. 176 (1982), that the very first inquiry in a case of this type is to determine whether or not there have been any material procedural violations. As the Rowley Court held, “… the importance Congress attached to these procedural safeguards cannot be gainsaid.” 458 U.S. 176.

In evaluating whether the District has complied with the procedural requirements of the IDEA, I consider whether the alleged procedural violation either 1) impeded the Student’s right to a free and appropriate public education, 2) significantly impeded the Parent’s opportunity to participate in the decision making process regarding the provision of a free and appropriate education, or 3) caused a deprivation of educational benefits. 20 U.S.C. § 1415(f)(3)(E)(ii); see also, Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp.2d 415, 419 (S.D.N.Y. Jan. 9, 2007), Application of a Child with a Disability, Appeal No. 07-007.

Substantive Standard The purpose of IDEA is to provide students with a “basic floor of opportunity” of access to specialized instruction and related services that are individually designed to provide educational benefits. Board of Education, Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 189-190, 102 S. Ct. 3034 (1982); Walczak v. Florida UFSD, 142 F.3d 119 (2nd Cir. 1998). Neither the IDEA nor Article 89 of the New York State Education Law requires a school district to provide special education and related services designed to maximize the potential of a disabled student. Nor do federal and state education laws require a school district to provide the best possible educational program and related services or match those services requested by a parent. Application of a Child With a Disability (City School District of Buffalo), S.R.O. Decision 04-20 (2004). Rather, the goals and mandates of the IDEA and N.Y. Education Law are relatively modest: namely, to provide appropriate specialized education and related services sufficient for the disabled student to benefit from his/her education. Straube v. Florida UFSD, 801 F. Supp. 1164, 1175-1176 (S.D.N.Y. 1992); Moubry v. Independent School District, 9 F. Supp.2d 1086, 1104 (D. Minn. 1998) (citing Rowley).

This straightforward obligation of the District is underscored by the obligation to demonstrate the appropriateness of the program recommended by its CSE. To meet its burden, a board of education must show that its recommended program is reasonably calculated to confer educational benefits. Bd. of Educ. v. Rowley, 458 U.S. 176 (1982). The recommended program must also be provided in the least restrictive environment. 34 C.F.R. § 300.550(b); 8 NYCRR 200.6(a)(1).

ii. Analysis

I first look to the Parents’ allegations to evaluate the scrutiny to apply in evaluating the District’s presentation. In the complaint notice, the Parents raise the following issues regarding the 2020-2021 SY:

• • The District failed to conduct initial turning-five evaluations when the Student entered kindergarten during the 2020-2021 SY. Such failure to conduct required evaluations amounts to a deprivation of a FAPE for the Student.
• • A CSE meeting took place on May 15, 2020. It was a very short meeting and failed to provide a meaningful opportunity to the Parent to participate.
• • The CSE meeting participants were not in possession of sufficient information relating to the Student's functioning in order to make an appropriate program recommendation.
• • The CSE meeting was not duly constituted with all required members.
• • The IEP created by such CSE meeting was inappropriate and insufficient to address the Student’s academic and social/emotional needs.
• • The present level of performance section of the IEP failed to provide sufficient information regarding the Student’s functioning levels in academic, social/emotional and related services areas.
• • The annual goals contained in the IEP were inappropriate and insufficient.
• • The IEP failed to recommend program modifications and accommodations.
• • The CSE failed to recommend any assistive technology devices and/or services in the IEP. The District failed to conduct an assistive technology evaluation to determine the need for an assistive technology device and failed to recommend an assistive technology device, thereby violating the Student's right to a FAPE.
• • The CSE failed to develop an appropriate behavioral plan or conduct functional behavioral assessment.
• • The program recommended by the District was inappropriate.
• • The CSE failed to recommend a 1:1 support in the IEP.
• • The placement at the [District Program] recommended by the District was inappropriate.
• • The District failed to convene a CSE meeting to review the Student’s progress during the 2020-2021 SY even after learning that the Student was not doing well in the [District Program]. (Ex. A.2-3)

As for the 2021-2022, the Parents raised the following claims:

• • The District failed to conduct any evaluations in preparation of the CSE meeting to develop the IEP for the 2021-2022 SY. Such failure to conduct required evaluations amounts to a deprivation of a FAPE for the Student.
• • The District failed to evaluate the Student in all suspected areas of disability for the Student.
• • The District failed to conduct evaluations in the areas of occupational therapy, physical therapy, speech-language therapy and assistive technology.
• • The CSE failed to recommend that a FBA be conducted to determine the need to develop a BIP. The Commissioner's regulations require school districts to conduct an FBA as part of the initial evaluation process. 8 NYCRR 200.4(b)(l)(v). The District’s failure to conduct an FBA and develop a BIP amounts to a failure of a FAPE for the Student.
• • The Parent asked for an FBA and a BIP but the CSE informed the Parent that the [District Program] does not conduct an FBA and they do not utilize a BIP. The assumption of the [District Program] is that if a student requires an FBA or a BIP, then the student does not belong in the [District Program].
• • The District failed to recommend that a BIP be prepared to address the Student’s behavioral issues.
• • The District failed to provide required notice of the CSE meeting five days prior to the meeting. Such late notice of the meeting constitutes a violation of the procedural requirements of the Commissioner's regulations pursuant to 8 NYCRR §200.S(c)(l).
• • The June 2021 CSE was not in possession of any current documents or progress reports to determine the Student’s needs.
• • The June 2021 CSE was not duly composed with all required members. The CSE members, including special education teacher, general education teacher and occupational therapist, were not duly certified in their respective areas of teaching and service.
• • The CSE failed to ensure that the parents had a meaningful opportunity to participate in the CSE meeting. The CSE meeting was a very short meeting and did not provide an opportunity to the Parent to voice all concerns or ask questions to the CSE members.
• • The present level of performance section of the June 2021 IEP failed to describe the Student’s academic and social/emotional difficulties in sufficient details.
• • The management needs section of the June 2021 IEP failed to describe all known management needs of the Student.
• • The CSE failed to recognize and recommend strategies, positive behavioral interventions, supports and other strategies to address behaviors that impede the Student’s learning and that of others.
• • The CSE failed to recommend a particular device or service to address his communication needs. The CSE's failure to recommend a particular device or service to address the Student's communication needs is a violation of a FAPE for the Student.
• • The CSE failed to recommend appropriate academic and related services goals in the IEP.
• • The annual goals contained in the IEP are not measurable and are vague.
• • The annual goals do not address all known deficiencies of the Student.
• • The annual goals were not discussed at the CSE meeting and were developed by the DOE personnel after the CSE meeting had concluded.
• • The CSE failed to recommend any speech goals for the speech-language therapy services. The CSE failed to address the Student’s articulation issues,
• • The CSE failed to address his low vocabulary issues.
• • The CSE failed to recommend parent counseling and training. The Student is diagnosed with Autism Disorder and is required to have parent counseling and training provided for his parent.
• • The CSE failed to recommend services or accommodations to address the Student’s sensory issues.
• • The CSE failed to address the Student’s daily living skills deficiencies.
• • The ICT classroom setting recommended by the District is inappropriate and does not offer the Student a FAPE. While the Student is strong academically, he requires significant support to address his behavioral issues. He requires a small, structured classroom setting which can address the Student’s advanced academic skills while addressing his significant behavioral issues at the same time.
• • The CSE failed to recommend any supplementary aids and services/program modifications/accommodations in the IEP. Such services are required pursuant to the Commissioner's regulations 8 NYCRR 200.4(d)(2)(v) and a complete failure to recommend any such services is a violation of a FAPE for the Student.
• • The CSE failed to recommend any assistive technology devices and/or services in the IEP. The District failed to conduct an assistive technology evaluation to determine the need for an assistive technology device and failed to recommend an assistive technology device – thereby violating the Student's right to a FAPE.
• • The CSE failed to recommend supports for school personnel on behalf of the student. The Student suffers from significant disabilities relating to his behaviors. Without such supports for school personnel, the teachers and other staff working with the Student are unlikely to be able to provide appropriate services to him.
• • The ESY program offered by the CSE was insufficient and inappropriate. There was no discussion regarding the ESY program.
• • The District failed to make a placement recommendation for the ESY program. There was no placement recommendation made by the District and the Parent was not informed where the extended school year program was taking place.
• • The CSE failed to recommend a 1:1 aide or support for the Student in the classroom setting. The Parent requested a 1:1 support at the CSE meeting but was told that the [District Program] did not provide a 1:1 support for students.
• • The CSE failed to conduct an FBA and develop a BIP. The CSE failed to recognize that the Student exhibits behaviors that interfere with his academics. The CSE was aware and on notice that the Student engaged in such behaviors since the [District Program] staff members participated at the CSE meeting and the Parent informed the CSE of such issues. Furthermore, the CSE failed to include any strategies in the IEP that would address his behavioral issues within the classroom setting. Such failures amount to a deprivation of a FAPE for the Student.
• • The Parent stated at the CSE meeting that the [District Program] was not working for the Student and requested a different setting for the Student. The CSE agreed that another setting would be more helpful but failed to make a recommendation for a different program.
• • The District failed to issue a notice to the Parent indicating that a particular placement has been recommended by the District.
• • The District failed to recommend a placement for the Student for the 2021-2022 SY.
• • The [District Program] is inappropriate and does not provide a FAPE for the Student. The behavioral supports required by the Student must be integrated into the program which the [District Program] cannot provide. (Ex. A.4-7)

This is the backdrop in which I weigh the District’s recommendations, ever mindful that the District has the burden of proof. In New York State, “[t]he board of education or trustees of the school district or the state agency responsible for providing education to students with disabilities shall have the burden of proof, including the burden of persuasion and burden of production, in any such impartial hearing …” N.Y. Educ. Law § 4404 (1)(c), modifying the rule enunciated in Schaffer where “[t]he burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief.” Schaffer, 546 U.S. at 537.

The District bore the burden of both production and persuasion to establish that they provided the Student with a FAPE as well as all other issues alleged in the DPC. N.Y. Educ. Law §4404(1)(c); See Application of a Student with a Disability, Appeal No. (“SRO No.”) 16-028; 13-200; SRO No. 11-091; SRO No. 11-053; (all holding that, in cases that do not involve a unilateral placement, the burden of proof is on the District). See also L.O. v. New York City Dep't of Educ., No. 15-1019, 2016 WL 2942301 (2d Cir. May 20, 2016).

Procedural Concerns

Other than the Student’s annual review meetings, no CSE meetings were held to discuss the Student’s struggles. (T. 167) Additionally, no one from the District Program reached out to the Parent to discuss the creation of an FBA. The Parent also mentioned that there was no BIP during the 2020-2021 SY. (T. 168)

The Parents alleged that they never received notice of the placement. The District’s attorney asked if she followed up, to which the Mother responded:

... I had emailed the principal during the summer, and she said that there was no one in the office that would be able to help me. And I contacted the District, and I didn't get any information from them. (T. 186)

Ultimately the Mother confirmed that she received the meeting notice for the June 2021 CSE meeting. But when asked why she did not request in writing that the subcommittee refer the matter to the CSE. The Mother answered that she did not because there was no alternative placement for the Student... (T. 200)

Substantive Concerns

During the hearing the Mother was asked about the Student’s program during the 2020-2021 SY. She relayed that, “[the District Program] is an ICT program for normal to high functioning autistic students.” (T. p 159)

I note that this programming is inconsistent with the Student’s GARS score from the 2020 administration which revealed significantly problematic scores nearly every domain. (Ex 9-1 see FN5)

She continued:

[H]is behaviors escalated, just not being able to attend to any given task, not being able to physically regulate, wanting to run out of the class. He would hit sometimes, kick. Just not able to attend and complete a task, basically, in the classroom. (T. 159-160)

The Mother described additional struggles regarding the District Program:

... I saw the teachers basically every day that he went to school. We would have conversations about [the Student’s] behavior that day,... informing me of what was happening in the class, in terms of his behavior, the hitting, the kicking, the wanting to run out of the room, things like that.

... I spoke to the principal in person a few times about [the Student’s] behavior and things that were happening, mostly because every time he would hit another student, you know, I would get a call from the principal stating that this was happening, or I get a call from the teacher. At one point the principal had asked -- had requested for [the Student] to stay home for a while because it just wasn't working out in the classroom.

... I also spoke to the director of [District Program] to see if we can get [the Student] a one-to-one. But I was told that if [the Student] was going to be in [District Program] and -- and in that setting, they don't offer one-to-ones for [the Student]. Not for him, but they don't offer one-to-one for students. (T. 163-164)

The Mother added that the only support that was provided was a class para for “a short while” but it did not work. (T. 165)

The Mother regularly communicated with the Student’s teachers, who all shared the opinion, that the District Program was not appropriate for him, specifically, the regular ICT class was not appropriate. However, at the Student’s annual review meeting, the CSE did not recommend a different placement, despite acknowledging that he was struggling in the District Program. At the meeting, the Parent voiced her opinion that the District Program was not appropriate for her son. (T. 169-170)

During cross-examination, the Mother was asked to clarify if the CSE team agreed that their recommended program was inappropriate for the Student, to which she stated:

Yes, we did have discussions about finding a different program, and this was because of issues that started from the very beginning. So by the time the IEP appointment, by the time the IEP meeting came about in June, it was already understood by everyone that his current placement wasn't appropriate for him. So -- it wasn't -- it wasn't something like I just went to them and I said, I don't want this anymore, I don't like this, the school is not working. We had already had months of communication, but it just came out on-record during the IEP meeting, this was just one of the things that we discussed during that time. (T. 181-182)

Next, the Mother was asked if she requested a re-evaluation; however, she could not recall. (T. 182) She was asked if she looked into any other District programs for her son. The Mother stated:

It was just during the IEP meeting, I... asked if... I were to find a different placement, or if he were to be put in a different school, would that be okay? And they agreed, yes, it would be okay. (T. 183) iii. Conclusion

While I credit the District for putting forth exhibits and cross-examining the Parents’ witnesses, I am left to speculate concerning the particulars of the CSEs’ actions over the two years in question. This is a procedural violation which likely results in a denial of FAPE. See, L.O. v. N.Y. City Dep't of Educ., 822 F.3d 95, 111 2016 U.S. App. LEXIS 9239.

The fact that there were no witnesses on behalf of the District is likely fatal to their case. Typically, I would expect a “CSE witness” to explain the intellectual underpinnings of the CSE’s resultant IEP. The review process, the rationale employed by the CSE members and the deliberations that may or may not have contributed to their final recommendations.

I would also expect a “witness of location.” They would be someone who is familiar with the physical placement options and can affirm the availability of the placement and the logistics of addressing the mandate in the IEP. Again, this witness was missing, despite numerous specific allegations that the placement was inappropriate.

Moreover, as a substantive matter, IDEA requires an educational program reasonably calculated to enable a child to make progress appropriately considering the child's circumstances. Endrew F. v. Douglas Co. School Dist. Re-1, 137 S. Ct. 988 (2017). In this case the testimony of the Mother was striking: She testified that the CSE reached a consensus, over the course of months, that the 2021-2022 program was inappropriate. The District did not rebut these allegations even though it is their. obligation to demonstrate the appropriateness of the program recommended by its CSE. (Application of a Child Suspected of Having a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Handicapped Child, 22 Ed Dept Rep 487 [1983]). To meet its burden, a board of education must be able to “... offer a cogent and responsive explanation for their decisions...” Endrew F., Supra.

In this case the testimony of the Parent was clear that the District placement was not appropriate and the District did nothing to disturb that impression. As such, I find that the District failed to provide the Student a FAPE for both the 2020-2021 and 2021-2022 SYs. I, therefore, rule for the Parents on Prong I.

IV. Prong II a. Legal Issue: Did the Parents Establish the Appropriateness of the Private Placement? i. Legal Standard

I now consider whether the Parents met their burden of proving the appropriateness of the placement of the Student at the Unilateral Placement. On Prong II, New York federal courts have held that parental placements are “subject to fewer constraints than that applied to the school authorities.” Schreiber v. E. Ramapo Cent. Sch. Dist., 700 F. Supp 529 [S.D.N.Y. 2010] The Second Circuit has clearly stated:

“... [P]arents 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 v. Arlington Cent. Sch. Dist., 489 F.3d 105 [2d Cir. 2007] quoting Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d Cir. 2006]

Moreover, parents "may not be subject to the same mainstreaming requirements as a school board." Frank G. v. Bd. of Ed. of Hyde Park [2d Cir. 2006] quoting M.S. v. Bd. of Ed. of City Sch. Dist. of Yonkers, 231 F.3d 96, 105 [2d Cir. 2000] citing Warren G. v. Cumberland County Sch. Dist., 190 F.3d 80, 84 [3d Cir. 1999] (holding that "the test for the parents' private placement is that it is appropriate, and not that it is perfect"). ii. Analysis The Parents unilaterally placed the Student at the Private School for the 2021-2022 SY. They called four (4) witnesses to articulate the appropriateness of the placement.

The Founder and Head of School at the Private School – Testimony The Founder and Head of School at the Private School (the Head of School) began her testimony by explaining the mission of the Private School:

The mission of the school is to provide an environment for students who typically fall through the cracks in any other situation. They have special education needs. They are very capable students, but if they’re not given the right environment, they’re not thriving in school. We have kids who have school refusal, school phobia, dropoutism. All sorts of, you know, risk factors for kids that are not thriving in school. So our mission and commitment is to give them an environment where they can find their place, build up their self esteem and self worth, believe in themselves as solid students and citizens, and build the skills that let them thrive, and you know, finish school, go to college if that’s their direction…

…[W]e provide all of the academic services at a very high level. We have a rigorous program that can accommodate students who are ready for honor’s classes or AP classes. And we also have -- you know, we work on very individual basis, so the students can work at their pace. If they’re not ready for high level work, we give them the ability to work where they are at this time, and push them a little harder, so that they can finally feel comfortable and confident that they can succeed. And they all do work -- their resiliency grows, and they work much better once they feel that they have the right supports behind them. (T. 67-69)

When asked to describe a typical student profile who is enrolled at the Private School, the Head of School answered:

So our students come in -- as I said they are all capable, highly capable in various different areas, academically or you know, art, music, and things of that sort. But you know, again, they have capabilities that have not been recognized before. They do come in with a variety of challenges that include social-emotional challenges, and that’s fairly consistent among all of our students. Many of them have extreme anxiety, depression, and that, again, we see that in most of our kids.

We have students who are on the spectrum, so high functioning, what once would have been called Asperger’s students; we have a large percentage of our kids fall in that category. We have a couple of students who are more traditional. If that’s even a word -- autism, so we have ASD.

All of our kids have been diagnosed with ADHD. And then we have a whole host of other conditions that typically don’t get identified, but combined to create this challenge for them that they can’t really succeed, whether it’s executive functioning challenges -- all of them have some form of sensory processing issues. We have several students with dyslexia, so we basically handle all of those type of recognized challenges, you know, in a very individualized way. (T. 69-70)

The Head of School continued her testimony by detailing the academic model at the Private School:

Our model is a one-to-one model. So all of their academic subjects, they see a teacher individually, one-on-one. We do build in a social component throughout the day, not in their academic classes, but whether it’s in gym, or -- we have other classes. We have cooking, we have a tech room, a tech lab, so in those kind of areas we try to have the kids work with other students, so that they can practice their special -- their social-emotional work, you know, that we’re working on with them. (T. 70-71)

In terms of related services, the Head of School noted that the Private School offers an abundance of supports for students:

We provide -- we do an assessment when the kids come in. And then we provide speech therapy, which is basic articulation. It's pragmatics, and also our speech pathologist does PROMPT therapy.

And then she is also responsible for social-emotional curriculum, so she works with them on learning. They do all sorts of social skills building, both in a classroom setting, but more really in real time work in -- either in the kitchen when we're cooking or in gym, or if we're doing multi -- cross-curricular projects for example; that's what I wanted to say before. We do a lot of project-based learning. So when the kids are working on special projects, they typically have another peer that they're working with. A couple of teachers will be working with them, and all of the skills that she's teaching them for social skills is practiced in these other real -- you know, real time situations with teachers being able to mediate if something comes up between the kids, you know, where the skills are not being demonstrated, we are there to help them acquire those skills. (T. 71-72)

When asked about the behavioral, social-emotional services provided at the Private School, the Head of School said the following:

We have a very integrated approach to our behavioral services. We work with both the -- [the Speech Pathologist] works with our behavioral psychologist [who] meets with the students at least two times a week, three times a week, depending on what we’ve assessed.

So between the two of them we build up behavior plans when necessary. Some of the kids have a formal FBA, but typically we go right into a behavior plan based on, you know, what we've observed after several weeks of observation at the beginning of the year to -- it's very student-centered, student-driven, motivational approach to behavior change that is not punitive at all. It's built on positive reinforcements, positive environment, giving a lot of well earned praise. Kids do wonderful things all day, so we make it a point to notice and make a point about the wonderful work that they're doing. If something comes up where there's a behavioral issue, we, again, attack it from the positive rather than the negative. However, you know, some kids need more of a reinforcer, so we have -- and especially for our younger kids, we do, you know, a reward token system when necessary. And then we have our occupational therapists, who again, between [the Behavioral Psychologist] and [the Speech Pathologist]… The three of them work together in developing also, a more physical behavior plan full of sensory stimulation or sensory calming. She does sensory diets with them, so we have a number of different tools and tactics to be able to help the children calm down where they're dysregulated, help stimulate them when they're, you know, kind of lethargic, or not looking to get involved in the work. And you know, between the -- among the three of them, we have a plan of action that is, again, very individualized and you know -- yeah. (T. 72-74)

Next, the Head of School was asked about the size of the school, to which he answered that there are fourteen (14) students enrolled at the Private School. (T. 74) When asked about the teachers’ credentials, she stated that “for the most part [they] are dual-certified special ed and gen ed.” (T. 75)

The Head of School was then asked to describe the supports and training that the Private School provides to parents. She answered:

We have a very strong commitment to working with the families because, you know, we only have the kids for six hours a day, and families have been dealing with their kids' challenges for such a long time. They often have certain things in place already, so we would like to be able to support whatever plan of action, or programs that they're already doing on the outside, so that the children have a seamless approach. Many -- in many cases, the parents don't know what to do, so we hold monthly parent workshops where the parents can log on. The workshops are also open to the entire community, so we can share some of our expertise with families even though they don't attend our school.

And to those workshops, we -- we'll typically speak about a particular issue that all of our families are, you know, dealing with, and then we have that open to a question and answer period.

We also send home monthly progress reports to the families, so they're full apprised of what the kids are working on, on a monthly basis. We, you know, welcome and celebrate any kind of input from the parents. They can call us at any time. So we have a very, you know, ongoing relationship with them. You know, it's an open -- open-door policy basically. And again, we try to impart with them, if they need help at home, we have worked with developing behavior plans that we send home with them when they've requested that. So that what we're doing at school carries on at home as well. (T. 75-76)

The Head of School noted that students are regularly assessed and are provided with monthly progress reports which are not graded. (T. 77)

Later in her testimony, the Head of School stated that she is familiar with the Student and described him as follows:

[The Student] is a wonderful, lovable, sweet child. He's on the spectrum. He has various other incredible things about him. He has an incredible musical ability. He has incredible math skills and talents that make us all -- we're amazed. He's able to do math on a level that -- he's in 1st grade. Actually, he's going into 1st grade, but he's able to do math in an extraordinary way that -- we have to sit down with a pencil and paper and a calculator to make sure he's telling us, you know -- what he's telling us is right, but it's always right. He has some social-emotional issues and behaviors which have been extreme at different times of the year. We generally try to put -- we have a threshold of accepting students with behaviors into the school. You know, because we want everyone to feel safe and you know, that they can come to school and not feel like they have to, you know -- that there's any risk involved.

[The Student], on occasion, can be very loud. [He] can also become aggressive to teachers and other students. So we have -- we hired -- we had to have a behavior -- a second person, a behavioral assistant to work in the classroom because of the extreme behaviors. Again, because of our -- we don't have things like, you know, quiet rooms that (indiscernible), for instance, would have.

We don't prescribe any kind of negative behavior modifications, and we definitely don't like to restrain children. If it all, you know -- we -- I would say 99 1/2 percent of the time, we would never restrain a child. Unless there's a danger to the child or teacher, in which case, we do have a humane type of restraint that hopefully, you know, doesn't have to be used very often. And as I said, we haven't in our 5 1/2 years of existence.

We did have to do that with [the Student] a couple of times. We have sent him home on a couple of occasions because of his behaviors, but in the overall seven or eight months that he's been there, it is -- you know, it's not that profound. We have been able to really work with him. We've changed teachers in his classroom to help moderate his behaviors. We found that he was -- he reacts differently to different tones of voice, so we have a different teacher in there now who is -- has a much more quiet, low key kind of voice. So we're seeing tremendous change in him recently. But it's been challenging up and down with [the Student], more right after holidays when he was home for the winter break and then again in the February winter break. He comes back more dysregulated than he is when he's with us for a consistent time. (T. 85-87)

The Head of School continued by describing some of the Student’s most prominent struggles at school:

[The Student’s] ability to focus on his work is, you know, usually his biggest challenge for his academic work. He gets dysregulated easy, or he gets distracted very easily. So through the course of the day we have to use various things to help him reregulate. So that could include the use of the sensory diet that I described, where his teacher has been taught by our occupational therapist what types of things that she can use with [the Student] in the room when he's not with the OT person, but that the classroom teacher can use as well, whether it's giving him fidgets, but sometimes fidgets are distracting, so sometimes he needs to do some physical outlet.

He can do some exercise in the class. He has a trampoline in the room when he would like to be a little more physical. She can have him do, you know, pushups, or just let him -- they do some, you know, wall pushups, things of that sort. So we have a host of different sensory processes that work with him very well. So when he is dysregulated, rather than insist upon him sitting, and just continuing to try to get him to work, we found that giving him breaks throughout the day help him tremendously, and then he is able to sit down and get back to his work. (T. 87-88)

Despite these struggles, the Head of School noted that the Student has been succeeding at the Private School:

There is absolutely progress in a lot of areas. I mean, from a behavioral standpoint, I would say the last three to four weeks, we've seen a tremendous change in him. We're seeing very little of the aggression that we had all year. It comes up every now and then where if he's upset about something, and the physical breaks down help, you know, he has reached out to grab a teacher or kick a teacher. It happens very, very infrequently at this point, but it's still there. But the changes in his ability to reregulate or be redirected is tremendous. So it takes fewer breaks in the day to get back to his work, and his academic work is wonderful.

He's a very smart boy, and you know, when he finally realized that he can actually sit down and accomplish something, that alone has given him a different sense of who he is as a student and helps with the self regulation skills that we're trying to teach him. (T. 88-89)

When asked if she felt the Private School is an appropriate placement for the Student, the Head of School answered:

Absolutely, absolutely … When he came in, his ability, again, to learn, he was just not available to learn. His ability to sit still and you know, respond to teacher's requests was just not there. And you know, for all of the different challenges we described earlier in this testimony, there really isn't another program that satisfies -- that provides the kinds of services and expertise that we do. We are specifically -- by mission and by model, specifically set up to work with students like [the Student]. To be able to provide all of the techniques that are, I'm going to say, more cutting edge. There's a lot of research out that's about 40 years old that describes our program and our model, but it takes a very long time for research, unfortunately, to wind up in the school systems.

And so our kids, like [the Student], don't have the luxury of time to have a childhood, you know, not be satisfied with the kinds of tools that we know and exist. So we practice all of those most cutting edge techniques and you know, tools, so a student like [the Student] can really have the most optimal setting.

And as I said before, and I'm not saying this to, you know, part myself on the back, but this is what I've been told from a number of different areas, that we are really pretty unique, that there isn't another school like us around that does our work in the way that we do. So it's working. He's making tremendous progress, so I think that we are a very good setting for [the Student]. (T. 92-93)

Upon cross-examination, the Founder and Head of School at the Private School (the Head of School) was asked if individual instruction is the only model offered at the Private School, to which she responded:

Not exclusively. We will pair children up when we can during the day, typically, not in academics. But art, they can work together. Special projects, we do project-based learning. We have some music students working together During gym and recess, so they have opportunities throughout the day. During cooking, they do have opportunities throughout the day that they see other children.

You know, I mean, all the children see each other, even during transitions from class to class. They have a few minutes that they can catch up with a friend. They do sometimes go out during the school day. The teacher can take the child out for a walk if that's part of their break. And there are often a couple of kids outside walking with teachers, taking a break or -- we have a garden, so they can go into the garden and work together. So they have ample opportunity to be together with other kids, as well as being in their class. But their academic work is -- it's very important to them to have that one-on-one setting. (T. 94-95)

The Head of School was then asked if students remain in a one-to-one setting if they show signs that they can function in a less restrictive setting. The Head of School answered:

We would be happy to pair them. We find that -- first of all, we only have 14 students right now. We won't ever have more than 25, so I think what I'm saying is going to probably be true throughout. We find that all of our kids have such different kinds of days, that even if we had a student -- two students who were on the same academic level, they don't function the same every day. So one might be more dysregulated, one might be a little more sound sensitive one day. One might need a different type of, you know, tool from our tool box to work with them on the behavioral level. So it's inconsistent, and therefore, inappropriate really for us to put any kids together, for us to expect them to make academic progress, you know, with a teacher where they're not getting the full attention of the teacher.

So while I'm saying it is 100 percent one-on-one right now, that's how it works out with our kids, because we just don't feel it's appropriate to put them together academically. If n occasion arose where we would have two, or even three, kids who were working on the same grade level, and their personalities were such that we can see the consistent resilience to be able to sit in a room and not be distracted by other sounds. Our kids have tremendous sound sensitivity and sensory sensitivity. That's really why it's important for them to be in this one-on-one setting; otherwise, the distractions just, you know, are counterproductive. (T. 95-96)

The Clinical Director and Therapist at the Private School – Testimony The Clinical Director and Therapist at the Private School (the Clinical Director) testified on the Parents’ behalf to demonstrate the appropriateness of their unilateral placement of the Student.

The Clinical Director begun his testimony by detailing his role at the Private School:

Well, I'm there to write the behavior intervention plans and the assessments and make sure that there's a type collaborative consistent model. We set up clinical meetings there with the speech pathologist and occupational therapist, as well as lead special educare, and [the Head of School].

I also am the therapist there, counseling these children. On a an informal, you know, you don't go to deep with the children, you know, so it's like a coaching methodology that we take. But -- and I'm there, and I see each child for periods 25 of 36 minutes.

I also make sure that the staff and, you know, is -- moral is up, and that they understand the theoretical approach of a lesser restrictive learning environment that will help in this basic environment, how it's set up. So I wear a few hats there. (T. 106)

He mentioned that clinical meetings are held on Thursdays and staff meetings on Wednesdays. At these meetings, staff members collaborate and go over academic and behavioral approaches. (T. 107)

The Clinical Director stated that he is familiar with the Student, who he provides counseling services. Additionally, the Clinical Director wrote the Student’s BIP. (T. 109)

He went onto describe the Student’s social-emotional weaknesses and behavioral issues that he observed upon meeting him at the start of the school year:

Well, you know, in the beginning, there was a couple of bumps, you know, he was very -- not very, but he had some physical aggression towards one of the teachers, and he was, you know, he just took a little time to acclimate. But you know, once he started really trusting the staff and the other students, you know, he started really shinning, you know, and showing improvement. And you know, to this day, at this point, there's no inappropriate touching or verbiage. He's transitioning a lot better. You know, a student like him, benefited from a lesser restrictive hands-on learning model. Where just because it's a smaller model where it's not larger, self-contained class sizes, for instance, like a 12:1:2 or something, it gives him the advantage to really learn, desensitize him to things that are affecting him in a natural environment, negative reinforcers that tend to set him off. He's really coming along for a six-year-old. I mean, we're all proud of him. He's trying hard...

… [S]ome verbiage, you know, inappropriate linguistic usage. You know, it could be like, you know, "get that -- get away from me" like, just very child-like immature language. Nothing that was really outlandishly inappropriate, you know, for his age. He had very spatial awareness difficulties, where you know, you know, he would kind of push his way into a social situation, rather than saying, "excuse me", or keeping his safe distance. In other words, if three educators were talking, he'd just role right into the three of us, like knocking over a couple of bowling pins, you know. And we'd say, "no, you just say excuse me" and you know, teaching him spatial awareness, teaching him tactile appropriacies. Teaching him that he can communicate from a healthy distance. He doesn't have to be facially, for instance, right on top of someone.

He, you know, play therapy, regarding like at dear time, where it's a relaxed kind of cool out time. Learning how to do those things appropriately. How do we calm down. How do we transition from an academic episode that's more rigid than the following episode, which could be reinforcing to him, which is just a calm down, sit and relax here, play with a toy, or play with a friend. You know, those kind of transitions, he needed to really learn how to succeed with and he's, again, he's coming along nicely. He's got a great teacher in there. This guy is -- he's really great. You know, he does a lot with him. (T. 109-110)

To address these issues, the Clinical Therapist stated:

I've talked to the OT about developing a sensory guide. So that's been put in place. And the sensory guide, it's nothing really, you know, where this has to be done, you know. It has kind of movement to it. But it's a series of tactile exercises to desensitize him through that touch sensitivity. Graphomotor, these kind a things, fine motor, pinch a grip for his writing. You know, flexion exercises. How to use his physical movement. Again, this coincides with his spatial awareness. He's responding to these things.

And then the speech is also -- it's very triangular. You know, when I write a plan, the OT jumps in, puts a section in there, then the speech comes in. Then we have a triangulated theory that's collaborative between the speech, the OT, and therapy component, and then we bounce off one another, and it circulates. And you know, and reinforcement components can be modified if the strength of an established motivator seems to weaken. But again, very respondent student with positively. (T. 112)

The Clinical Therapist expanded on the positive reinforcement:

I deter his interest if the interest is negative or if the topic seems to be negative or something that can be typically argumentative topic. Then I always redirect, and we redirect, socially, on topics that he's motived by but can kind of help fill in the gaps of that kind of -– if he tends to start fixating or becoming very repetitive or echolalic with a negative stimulus or a conversation.

So it's very simply techniques. It's, you know -- and the way he's spoken to is very, you know, "come on man, you can do it", you know, "let's do this", oh, okay. And he's very good to the most part. It's very rare that, you know -- again, verbally, it's -- for his age, he's still learning his language. So we have the opportunity to develop a new learned language that is not a replace of the old one that could be negative. It's still in development, so all these new things are coming up positive.

But you know, like any kid, you know, he tends to get fixated on computers, for instance. These days, which under the age of -- all of us really, everybody uses their phone and computer. These kids, sometimes they can't get off the computer. So we set up a program where, you know, he needs to be able to transition off a computer which could be a motivator, but that was problematic in the past. He didn't want to get off the computer. Now he's able to transition. Now he's able to find more appropriate things, rather than just some redundant numeric sight that is, you know, a stimulus to him that is not really an educational thing. But coaching, coaching, all the way, you know. (T. 115-116)

Next, the Clinical Therapist was asked how he works on regulating and approving the Student’s ability to regulate his emotions:

Well, this is what -- this is what the primary solvent is. Catch it, you know, as it -- work on the preventative measures. You know, work on the preemptive -- catch it preemptively before negative behavior occurs. We can't rely on consequence, which we don't rely on, and I don't administer any consequence, for the exception of social redirection, especially for a six-year-old little boy. You know, he's still learning everything.

So, I mean, you know, he's to be constantly, incidentally reinforced when -- not in a patronizing way, and you know, I mean it's integrated with the other students -- but he's to be recognized for all his efforts when he's -- when he's on target, when he's behaving. "Hey man, I'm proud of you, keep it up". That goes a long way with any child, goes a long way with him, and it prevents the behaviors from occurring.

Now if they were to occur, some of them, you know, it's a very, sometime abrupt -- sometimes it's in a very abrupt moment. Some stimulus may come into the environment and can set a student off. I haven't seen that with him in a good while. We're very happy about that. But when it was happening, you know, then we're working on calming him down. Calming him down was with, again, social redirection, low verbal tone. If he was screaming and yelling and the educator was to scream and yell, and match that tone, then it, you know, then it accelerates to the bad situation there, and he gets more nervous. But if we contradict or oppose the tone, "it's okay" almost a whisper, shut the lights out, put on some soft music, the minute he calms down, he's to be reinforced.

If we were to do these things as he's blowing up or having an episode, well then we're reinforcing a negative, and it's likely to happen again, because he kind of wins this battle, you know. But he calms down. Again, this has been quite some time since this has happened. But when he was to have these behaviors, you know, you just cut the stimulus back a bit, lower the tone, soft music, and it just kind of really cooled him out.

But now, we see the longitudinal effort made, more so throughout the day, where there's no behaviors, little if any, nothing that is concerned. I mean, yeah, what is it, the other day, he ran in the hall going to a class. And I said, "[Student] stop that" and he did, you know, so there's these things.

But preventatives are the biggest. You know, through reinforcement, a good steady flow of frequent acknowledgment, especially to the finished product. You know, if he does a ditto thing, that's to be celebrated. You know, if a child does -- if he does a project, for instance, and they're to be rewarded with something tangible always after the project, they just rush through the project to get to the other thing. The project falls secondly -- it's not as important as what you get. So I like to kind of utilize the project and what they're doing. That's the reward. When it's finished, then you can hang it on the wall, you could do what you want with it and make, you know, copies of it.

In toll, the behaviors are more-steady, which they are, but now these things are -- could be faded back more. They don't have to be so -- it doesn't have to be so frequent, in other words, you know. (T. 117-120)

The Clinical Director then summarized some of the improvements that he observed since he met the Student:

I have seen discontinuation of physical aggression. I have seen a discontinuation of verbal combativeness. I have seen a discontinuation of -- well, I wouldn't say that so -- I would see a very steadily emerging decline in, you know, kind of his spatial bullying, where he'll just throw himself into a group of people, kind of thing, hugging people, you know, touching everybody. That's gotten a lot better.

And I've seen him become much less dependent upon the computer as a motivator, because we removed -- you know, it had -- he had full access to it, like again, most kids have at home, you know. But it got to that point, like I had mentioned. So he wasn't happy about it at first when I said "look, we got to pull the computer back a bit", but he was able to find other motivators. You know, he's very driven by numbers. He's very good at math. So sometimes he'll go on the calculator, and that will make him happy. These little things, or he'll listen to a song. But he doesn't always perseverate, "computer, computer, I need to go on the computer". You know, that's not -- so that's a good thing too … He’s made a lot of friends too … [He’s] become more social and kids like him. (T. 121-122)

The Assistant Head of School at the Private School– Testimony The Assistant Head of School at the Private School (the Assistant Head of School) begun her testimony by stating that she is familiar with the Student and sees him daily. (T. 138) She noted that at the start of the school year, when the Student was beginning first grade, he was performing at a third grade level in Math and a second grade level in ELA. (T. 139)

Regarding the Student’s social-emotional functioning, the Assistant Head of School’s testimony is consistent with that of the other witnesses:

[I]n September, we were having a lot of aggressive outbursts from [the Student], a lot of inability to sit still, focus. He needed a lot of redirection. He was hitting, kicking, biting, ramming into people, unable to walk down the hallways unassisted, very distractible. (T. 139)

To address these issues, the Assistant Head of School stated that the Private School offered the Student a one-to-one teacher, as well as a one-to-one teacher’s assistant to work with him to help him modify his behaviors. (T. 140) She extrapolated with the following remarks:

He was given a lot of redirection during the day, a lot of immediate and positive praise for anything that he did that was positive. He was given assistance walking through the hallways one-to-one so that he was able to transition from one place to another safely. He was given a lot of frequent breaks while doing a task so that he didn't become overwhelmed. He was, let's see, given a lot of structure within his classroom so he had clear expectations. He was given visual schedules so that he knew exactly what was expected of him at each moment of the day. Just a lot of positive reinforcement, also. (T. 140)

The Assistant Head of School went onto describe a typical school day for the Student:

[H]e gets off the bus at 8 o'clock, he goes to his classroom, he usually has breakfast. Then he starts his day with, I believe he goes to ELA first. He goes to his academic courses throughout the day. There's 36 minutes for each class. He does get frequent breaks between those classes. He gets specials, being he goes to gym every day, and then art or music probably every other day. And the rest of the time he is with the classroom teacher until 2:30 p.m. (T. 143)

Next, the Assistant Head of School was asked about the roles of the Student’s one-to-one aide and his behavioral assistant, to which she responded:

So the one-to-one aide gives -- helps him with his transitions, walking down the hallway, helping him with his meals, helping him stay focused during classes, getting him any materials he might need to participate in the class, helping -- when -- if he did have a behavioral outburst, there would -- the -- the one-on-one aide was helping with that, as well. (T. 143-144)

The Assistant Head of School was asked if she observed any improvements or progress in the Student’s behavior since he began attending the Private School. The Assistant Head of School stated:

So we have seen a huge change in his ability to remain on-task. The level of aggressions have reduced significantly. He is now able to be more integrated into the -- to the, into the mainstream population, I would say, where he is able to go into the lunchroom and have social situations with other students. He's able to go on walks with other students, play games outside, recess with other students. We don't see any more aggression. He is able to stay focused in class and complete assignments. (T. 144-145)

Regarding his academic progress, the Assistant Head of School stated that the Student:

[Is] definitely more available to learn now, so he is working through curriculum at, I'd say a very quick pace. I was in the classroom, I believe, last week, and he was working on skills that are well above 1st grade level learning, like literary devices and things that kind of blew my mind. His math skills are well above grade level, as well. Now that he's more available to learn, he, like I said, he is able to move through curriculum at a very fast pace. (T. 145)

To finish off her testimony, the Assistant Head of School explained why she feels as though the Private School is an appropriate placement for the Student:

I believe he means (sic) the -- the structure and the small one-to-one class size. He is very distracted by other students who -- if he -- if he's working on something, he really has a hard time if another student is present. I believe he does well with the very positive behavior and social models that we have here. I believe that he does well with the -- the structure and the positive reinforcement that is offered to him throughout the day. (T. 147)

The Parent/Mother – Testimony The Mother began her testimony by giving some background on the Student from his early days as a Student. She detailed some of her son’s struggles with his previous placements. (T. 155-170)

Upon placing the Student at the Private School, the Mother reached out to the school to determine the appropriateness of the placement:

I had a conversation with the director, a verbal conversation on the phone about [the Student] and about the school. And then she asked for [the Student] to come in to see, you know, just to meet him. We went in for a couple of hours, and then a couple of weeks later, she said that she felt that the child -- the school would be a good fit for [the Student]. (T. 172)

When asked if she had observed any progress since placing her son at the Private School, the Mother replied, “Yes, every day.” (T. 174)

Next, the Parent was asked why she believes the Private School is an appropriate placement for her child:

In terms of academically, I love the fact that they are teaching him on his level, which is obviously way above his grade level and age level. So I am very happy that they know his strengths and they're able to educate him on that level. In terms of his behavioral needs, I like the fact that whatever are his behavioral needs, they are able to address it, and because he gets that one-to-one attention and that's -- that's exactly what he needs. All the teachers, I feel, even -- even the teachers that are not the one that's giving him direct instruction, they all know him. I say hello to them. They -- they will say, oh, [the Student] did -- did XYZ today, he did a great job. So everyone is aware of [the Student’s] abilities, and I just like the fact that [the Student] gets that one-to-one attention that he needs, and that is -- is so important for him. That's really why I like the school. (T. 178-179) iii. Conclusion

I find that the Private School provided educational instruction specially designed to meet the unique needs of the Student. I credit the Parents’ exhibits and witnesses for articulating the appropriateness of the placement in addition to the Student’s progress. The Parents met their burden by establishing that such services were necessary to permit the Student to benefit from instruction. I, therefore, rule for the Parents for Prong II.

V. Prong III a. Legal Issue: Did the Parents Cooperate with the District? i. Legal Standard

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents where equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148^[7]). The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85; M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at 7 [S.D.N.Y. Aug. 27, 2010]).

Tuition reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the child 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. § 612[a][10][C][iii][I]; see 34 C.F.R. § 300.148[d]) 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]) ii. Analysis The Parents attended the Student’s CSE meetings and sent a ten-day notice letter on September 15, 2021, in which they expressed their intent to unilaterally place the Student at the Private School for the 2021-2022 SY. In the letter, the Parents informed the District that they would seek funding from the District for the placement. The Parents also remained amenable to resolving the matter. iii. Conclusion

Upon review of the record, I find that the Parents cooperated with the District and did nothing to impede them from developing an appropriate IEP for the Student. As such, I find no reason for reduction in tuition reimbursement. I, therefore, rule for the Parents in Prong III.

VI. Compensatory Education a. Issue: Is Compensatory Education Appropriate in this Case? b. Legal Standard

Regarding the remedy of compensatory education, I find guidance in Reid v. District of Columbia, 401 F.3d 516, (D.C. Cir. 2005) (finding that compensatory education is not a “form of damages” because the courts act in equity when remedying IDEA violations and must “do equity and... mould each decree to the necessities of the particular case”) (quoting Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944)); See also, Wenger v. Canastota, 979 F. Supp. 147, 150-51 [N.D.N.Y. 1997].

Within the Second Circuit, compensatory education relief in the form of supplemental special education or related services has been awarded to such students if there has been a denial of a FAPE (see P. v. Newington Bd. of Educ., 546 F.3d at 123 [2d Cir. 2008] [stating that "[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and... compensatory education is an available option under the Act to make up for denial of a [FAPE]"]; see generally R.C. v. Bd. of Educ., 2008 WL 9731053, at 12-13 [S.D.N.Y. Mar. 6, 2008], adopted at 2008 WL 9731174 [Jul. 7, 2008]).

Likewise, SROs have awarded compensatory "additional services" to students who remain eligible to attend school and have been denied appropriate services, if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation (Bd. of Educ. v. Munoz, 16 A.D.3d 1142 [4th Dep't 2005] [finding it proper for an SRO to order a school district to provide "make-up services" to a student upon the school district's failure to provide those educational services to the student during home instruction]; Application of the Dep't of Educ., Appeal No. 13-236 [upholding an additional service award of physical therapy]; Application of a Student with a Disability, Appeal Nos. 13-226 & 13-228 [awarding additional services in the form of tutoring or other direct support from a special education teacher]; Application of a Student with a Disability, Appeal No. 13-208 [upholding an additional service award of 100 hours of compensatory one-to-one tutoring in math and reading]; Application of the Dep't of Educ., Appeal No. 13-048 [awarding the student with 1:1 counseling services and 1:1 speech-language therapy in compensatory additional services]).

In fashioning an appropriate award of compensatory education, one must be mindful that the central purpose of such award is to provide a remedy for a specific denial of a FAPE (see Newington, 546 F.3d at 123 [holding that compensatory education is a remedy designed to "make up for" a denial of a FAPE]; see also Reid v. Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005] [holding that, in fashioning an appropriate compensatory education remedy, "the inquiry must be fact-specific, and to accomplish IDEA's purposes, the ultimate award must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place"]; Parents of Student W. v. Puyallup Sch. Dist., 31 F.3d 1489, 1497 [9th Cir. 1994] [holding that "[a]ppropriate relief is relief designed to ensure that the student is appropriately educated within the meaning of the IDEA"]).

Accordingly, an award of additional services should aim to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA (see Newington, 546 F.3d at 123 [holding that compensatory education awards should be designed to "appropriately address the problems with the IEP"]; see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 [11th Cir. 2008] [holding that "[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act"]; Bd. of Educ. v. L.M., 478 F.3d 307, 316 [6th Cir. 2007] [holding that "a flexible approach, rather than a rote hour-by-hour compensation award, is more likely to address [the student's] educational problems successfully"]; Reid, 401 F.3d at 518, 525 [holding that compensatory education is a "replacement of educational services the child should have received in the first place" and that compensatory education awards "should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA"]; Parents of Student W. v. Puyallup Sch. Dist. 31 F.3d 1489, 1497 ["There is no obligation to provide a day-for-day compensation for time missed"]; Application of the Dep't of Educ., Appeal No. 11-132; Application of a Student with a Disability, Appeal No. 11-091). See, specifically, Application of a Student with a Disability, Appeal No. 14-014. c. Conclusion

As a remedy for the 2020-2021 SY, the Parents seek prospective placement and reimbursement for OT services paid for byt the Parents. Although the Parents never specifically made a request for “compensatory education”, their sought remedy relief closely resembles it.

Upon review, I find that the Parents abandoned their claims regarding prospective payment (apparently for a future year) and reimbursement for OT. I, therefore, will not grant an award of prospective payment for future schooling based upon the finding that there was no FAPE for the 2020-2021 SY.

It is therefore ORDERED The District shall reimburse the Parents for the cost of tuition for the 2021-2022 SY upon presentation of proper invoicing for same.

Dated: June 18, 2022

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.

Footnotes

[1] A hearing was held across the following dates: December 22, 2021; January 11, 2022; January 26, 2022; March 7, 2022; April 12, 2022; May 13, 2022; May 27, 2022; May 31, 2022; and June 6, 2022.

[2] The CSE team recommended ICT services for the following subjects: Math (10 x weekly); ELA (10 x weekly); Social Studies (3 x weekly); and Science (3 x weekly). Regarding the Student’s related services, the team recommended the following: Counseling Services (Group, 1 x 30); Occupational Therapy (Individual, 2 x 30); Speech-Language Therapy (Individual, 1 x 30 | Group, 5 x 45); and Parent Counseling and Training (Group, 5 x annually). (Ex. 4.16-17)

[3] The CSE recommended the Student receive the following services over the summer: Occupational Therapy (Individual, 2 x 30) and Speech Language-Therapy (Individual, 1 x 30 | Group, 2 x 30). (Ex. 2.16-17)

[4] NYCRR Part 200.1(zz)(1) Autism means a developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before age 3, that adversely affects a student’s educational performance. Other characteristics often associated with autism are engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences. The term does not apply if a student's educational performance is adversely affected primarily because the student has an emotional disturbance as defined in paragraph (4) of this subdivision. A student who manifests the characteristics of autism after age 3 could be diagnosed as having autism if the criteria in this paragraph are otherwise satisfied.

[5] These tests revealed the following: Vineland-3 Adaptive Behavior Composite (ABC)= 55= 85 Percentile Rank%= 16 Communication= 55= 93, Percentile Rank%= 32 Daily Living Skills= 55= 90, Percentile Rank%= 25 Socialization= 55= 81, Percentile Rank%= 10 Motor Skills= 55= 89, Percentile Rank%= 23 GARS-3 Autism Index Score= 65, 50th percentile Severity Level= 1 ("The probability of Autism Spectrum Disorder (ASD) is Probable") Restricted/Repetitive Behaviors (RB)= 5 Percentile Rank%= 3 Social Interaction (SI)= 10, Percentile Rank%= 50 Social Communication (SC)= 2, Percentile Rank%= <1 Emotional Responses (ER)= 4, Percentile Rank %=2 Cognitive Style (CS)= 10, Percentile Rank %=50 Maladaptive Speech (MS)= 5, Percentile Rank %=3

[6] “Special education” is defined by the IDEA as specially designed instruction, at no cost to parents or guardians, to meet the unique needs of a child with a disability, including (A) instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and (B) instruction in physical education. The term “related services” is defined as transportation, and such developmental, corrective, and other supportive services (including speech pathology and audiology, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, counseling services, including rehabilitation counseling, and medical services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education, and includes the early identification and assessment of disabling conditions in children. 20 U.S.C. § 601(26).

[7] § 300.148 Placement of children by parents when FAPE is at issue. (a) General. This part does not require an LEA to pay for the cost of education, including special education and related services, of a child with a disability at a private school or facility if that agency made FAPE available to the child and the parents elected to place the child in a private school or facility. However, the public agency must include that child in the population whose needs are addressed consistent with §§ 300.131 through 300.144. (b) Disagreements about FAPE. Disagreements between the parents and a public agency regarding the availability of a program appropriate for the child, and the question of financial reimbursement, are subject to the due process procedures in §§ 300.504 through 300.520. (c) Reimbursement for private school placement. If the parents of a child with a disability, who previously received special education and related services under the authority of a public agency, enroll the child in a private preschool, elementary school, or secondary school without the consent of or referral by the public agency, a court or a hearing officer may require the agency to reimburse the parents for the cost of that enrollment if the court or hearing officer finds that the agency had not made FAPE available to the child in a timely manner prior to that enrollment and that the private placement is appropriate. A parental placement may be found to be appropriate by a hearing officer or a court even if it does not meet the State standards that apply to education provided by the SEA and LEAs. (d) Limitation on reimbursement. The cost of reimbursement described in paragraph (c) of this section may be reduced or denied (1) If - (i) At the most recent IEP Team meeting that the parents attended prior to removal of the child from the public school, the parents did not inform the IEP Team that they were rejecting the placement proposed by the public agency to provide FAPE to their child, including stating their concerns and their intent to enroll their child in a private school at public expense; or (ii) At least ten (10) business days (including any holidays that occur on a business day) prior to the removal of the child from the public school, the parents did not give written notice to the public agency of the information described in paragraph (d)(1)(i) of this section; (2) If, prior to the parents' removal of the child from the public school, the public agency informed the parents, through the notice requirements described in § 300.503(a)(1), of its intent to evaluate the child (including a statement of the purpose of the evaluation that was appropriate and reasonable), but the parents did not make the child available for the evaluation; or (3) Upon a judicial finding of unreasonableness with respect to actions taken by the parents. (e) Exception. Notwithstanding the notice requirement in paragraph (d)(1) of this section, the cost of reimbursement - (1) Must not be reduced or denied for failure to provide the notice if - (i) The school prevented the parents from providing the notice; (ii) The parents had not received notice, pursuant to § 300.504, of the notice requirement in paragraph (d)(1) of this section; or (iii) Compliance with paragraph (d)(1) of this section would likely result in physical harm to the child; and (2) May, in the discretion of the court or a hearing officer, not be reduced or denied for failure to provide this notice if - (i) The parents are not literate or cannot write in English; or (ii) Compliance with paragraph (d)(1) of this section would likely result in serious emotional harm to the child. (Approved by the Office of Management and Budget under control number 1820-0030) (Authority: 20 U.S.C. 1412(a)(10)(C))