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FINDINGS OF FACT AND DECISION
NYC Case Number: 222494
NYS Case Identifier Number: 567322
Student’s Name: [REDACTED]
Date of Birth: [REDACTED]
District: [REDACTED]
Hearing Requested by: Parent
Date of Hearing: 1/10/22
3/2/22
4/13/22
5/25/22
7/13/22
8/10/22
9/8/22
Record Close: 10/14/22
Hearing Officer: Nancy M. Lederman, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY 10, 2022
For the Student:
[REDACTED], ESQ., Attorney
For the Department of Education:
[REDACTED], ESQ., Attorney
NAMES AND TITLES OF PERSONS WHO APPEARED March 2, 2022
For the Student:
[REDACTED], ESQ., Attorney
[REDACTED], Parent
[REDACTED], Parent
For the Department of Education:
[REDACTED], ESQ., Attorney
NAMES AND TITLES OF PERSONS WHO APPEARED April 13, 2022
For the Student:
NONE
For the Department of Education:
[REDACTED], ESQ., Attorney
NAMES AND TITLES OF PERSONS WHO APPEARED May 25, 2022
For the Student:
[REDACTED], ESQ., Attorney
[REDACTED], Parent
[REDACTED], JR., Parent
For the Department of Education:
[REDACTED], ESQ., Attorney
[REDACTED], ESQ., ATTORNEY
[REDACTED], School Psychologist
[REDACTED], School Psychologist
NAMES AND TITLES OF PERSONS WHO APPEARED July 13, 2022
For the Student:
[REDACTED], ESQ., Attorney
[REDACTED], Psychologist
[REDACTED], Teacher, [REDACTED]
[REDACTED], Parent
[REDACTED]., Parent
For the Department of Education:
[REDACTED]ESQ., Attorney
[REDACTED], ESQ., Attorney
NAMES AND TITLES OF PERSONS WHO APPEARED August 10, 2022
For the Student:
[REDACTED], ESQ., Attorney
[REDACTED], ESQ., Attorney
[REDACTED], Parent
[REDACTED], Parent
For the Department of Education:
[REDACTED], ESQ., Attorney
[REDACTED], ESQ., Attorney
NAMES AND TITLES OF PERSONS WHO APPEARED September 8, 2022
For the Student:
[REDACTED], ESQ., Attorney
[REDACTED], Parent
For the Department of Education:
[REDACTED], ESQ., Attorney
[REDACTED], ESQ., Attorney
This case was brought before me pursuant to appointment by the New York City Department of Education (DOE) under the Individual with Disabilities Education Act (IDEA), 20 United States Code §1415(f)(1).
[REDACTED] ([REDACTED]) is a [REDACTED] -year-old student whose parents [REDACTED] and ([REDACTED, parents or parent) brought the instant hearing, arguing that the DOE had failed to provide [REDACTED] with a free appropriate public education (FAPE) for the 2021-2022 school year. The hearing convened on January 10, March 2, April 13, May 25, July 13, August 10, and September 8, 2022. Extensions were entered in compliance with state regulations, with a final compliance date of October 28, 2022.
DISTRICT AND PARENT POSITIONS
The due process complaint notice (DPCN) in this case claimed that the district failed to provide [REDACTED] with a free appropriate public education (FAPE) in the 2021-2022 school year, claiming that the recommended program was inappropriate, that the performance levels, management needs, and goals and objectives were inadequate to address and failed to accurately describe the child’s special needs, that the IEP failed to address his behavioral needs, and that the recommended placement was inappropriate. As relief, the parent asked for prospective funding and/or tuition reimbursement for the child’s enrollment at [REDACTED] and provision of transportation services. Exs. 1, A. At hearing on January 10, 2022, the parent attorney confirmed that the request was solely for reimbursement.
FINDINGS OF FACT
[REDACTED] is a [REDACTED] -year-old child, diagnosed with autism spectrum disorder and classified as having autism. [REDACTED], [REDACTED]’s mother, testified about [REDACTED]’s early displays of delays in motor skills and movement, echolalia, and lack of eye contact, resulting in multiple evaluations by [REDACTED] in January 2020, which also saw a number of communication and physical issues. The speech evaluation confirmed echolalia, talking about himself in the third person, short sentences, and lack of eye contact. The physical evaluation revealed a lack of balance, and the occupational therapy evaluation also revealed him to be behind in several areas. The parents then contacted [REDACTED] in the spring of 2020, but they were unable to get him an in-person appointment until the fall of 2020. Tr. 397-472.
At a CPSE meeting in March or April 2020, the committee agreed he should be placed in a special education preschool. Beginning in July 2020, he attended [REDACTED] placed by the CPSE in a 12:1:2 class, with one head teacher and two assistant teachers, and also receiving two sessions of physical therapy and two sessions of occupational therapy weekly, 30 minutes each. The therapists noted he was distracted and not focused during sessions and had a hard time following instruction. The program was effectively the 6:1:2, a hybrid model of instruction under COVID, with the class split in half and each half going two days a week. [REDACTED] said that fewer children in the classroom was very beneficial to [REDACTED]’s learning environment and ability to focus. He continued to display characteristics that caused concern, including physical limitations, poor conversational skills, and limitations in his ability to interact with peers or be in a group setting. The speech pathologist at the school in informal dealings and observing the child suggested he be evaluated, and a request was made to CPSE for a speech evaluation. It was clearly a major deficiency, despite a wide vocabulary, and twice weekly 30-minute speech services were added to his program in April 2021. Tr. 397-472.
Evaluation. [REDACTED] was evaluated by Dr. [REDACTED] in October 2020. Tr. 397-472. [REDACTED], a clinical psychologist, testified about the evaluation she conducted of the child in October 2020, when he was four years old. There was extensive testimony about her qualifications, and the various diagnostic neurodevelopmental and psychological evaluation she conducted. She described the different tests, explaining that the child met the classification for autism spectrum disorder (ASD). Tr. 220-293; Ex. 11.
In regard to language testing, she noted significant delays in a couple of areas, delays recalling sentences, interpreting sentences, and sentence structure, scores falling from the extremely low to the average range. She explained that although the test used, the CELF, did not test for pragmatic or social language, there was still impact in holding information in memory and recalling that information, also showing challenges in terms of receptive language. In measuring for pragmatic speech with the CARS, his score resulted in mild to moderate symptoms of ASD. She stated that although he had a wide vocabulary, he does not engage in back-and-forth conversation with others. He also engages in some echolalia and stereotype speech and pronominal reversal, fusing the pronouns. On the adaptive behavior assessment, the parents’ report about the child’s independent behavior indicated scores ranging from borderline to average difficulties in his self-care and social skills. In addition to trouble with reciprocal conversations, [REDACTED] also noted trouble in nonverbal aspects, such as diminished eye contact during the evaluation, rare use of gestures to augment his speech, and struggling to initiate a response. She noted that he was focused and appropriate in responding to the cognitive assessment, but after the first few assessments had been conducted, he started displaying more dysregulated and hyperactive behavior, requiring a lot of prompting and repetition and positive behavior supports. At the time, he was described as using single words and phrases, needing prompting for communication and parallel play; when talking about negative emotions he would shut down and play with his hands. She also noted him engaging in complex mannerisms like jumping and flapping his arms, and having intense interests, repetitive and restricted behaviors, inherent in a diagnosis of ASD. Tr. 220-293; Ex. 11.
At the time [REDACTED] was in a 12:1:2 classroom, but there were only six students in the class because of COVID. As noted, she diagnosed him with autism spectrum disorder. Her recommendation was for a small school setting, with an increased teacher-student ratio and access to one-to-one instruction throughout the day directed by individuals experienced with autism and social communication and language delays. She stated the setting should also provide positive behavioral supports to help facilitate his learning. She noted his language and adaptive needs as requiring a lot of prompting and individualized support from people specialized to work with children with autism. The report stated he should be placed in the classroom, with peers with approximately the same cognitive and language abilities. He does not have cognitive deficits, which meant that he should not be in a classroom of students who have significant intellectual disabilities or are nonverbal. Tr. 220-293; Ex. 11.
[REDACTED] also noted [REDACTED]’s diagnosis of autism spectrum providing an explanation of his problems expressing his frustration, coping mechanisms and difficulties with instructions and communication, and her recommendation for a school focused on instruction and growth for children on the autism spectrum on a 12-month basis, with additional ABA in-home services as well. Tr. 397-472.
IEP [REDACTED] meeting, April 7, 2021. [REDACTED], the school psychologist at [REDACTED], testified at length about the IEP meeting. At the time, [REDACTED] was attending [REDACTED] two days a week. Documents reviewed included the preschool evaluations, the evaluations she did with the parents, progress reports, speech and language evaluation, and [REDACTED]’s neuropsychological evaluation. [REDACTED] testified at length about the testing results. His full scale IQ was within the average range, with verbal skills at the below average range, looking at his skills across various domains ranging from extremely low through average. She agreed that there were issues sustaining eye contact, and speech was notable for echolalia and repetition. Tr. 77-178; Ex. 20.
The IEP recommendation was for an integrated co-teaching (ICT) class 20 hours per week with related services of speech once in a group and once individually, occupational and physical therapy, both twice a week individually, all 30-minute periods, and a toileting paraprofessional for 50 percent of the day. Ex. 20.
[REDACTED] explained that [REDACTED]’s academic skills showed him to be ready for [REDACTED], with a special education component built into it that would meet his needs. She noted management needs to address focus through structured class with minimal distractions, verbal cues and prompts, what she called “just the general structure and consistent routine,” affirming that there was only one goal about self-regulation and attention, and his academic goals were no different than goals for general education [REDACTED] children. She also defended the recommendation for ICT for 20 periods per week, conceding that [REDACTED] would not be provided with any special educational support during hours for his lunch, teacher prep, art, gym, dance, and science. She conceded that she rejected a general education setting as not providing sufficient support. Much of her testimony was about improvements [REDACTED] had made, stating that his skills were developing, and he was becoming more engaged and interested in playing with peers. In so testifying, she conceded that she had neither evaluated the child nor been able to observe him, referring instead to the IEP as memorializing her teacher interview. Similarly, [REDACTED] dismissed the need for a functional behavior assessment, stating that the child’s demonstrated disruptive classroom behavior, aggression, and related significant challenges, not being able to focus, jump up and down or start to knock things over were all in the past. She testified that at the time of the IEP meeting, the teacher shared that she prompts [REDACTED] to think about what he was going to say and try again, which allowed him to remain calm. Ex. 20.
The only teacher report that was in evidence at the time of the meeting was the [REDACTED] Progress Report by [REDACTED], the child’s teacher. The January 13, 2021 report noted focus for 5 to 10 minutes, with the need for constant redirection, as well as prompting, verbal/visual cues, repetition, modeling, and positive reinforcement. She noted gains in his annual goals, increasing in attention to an activity to 10 minutes, stating that his communication, cognitive, social and emotional skills demonstrate room for growth. Her conclusion and recommendation was that “for [REDACTED] he would benefit more from a Special Class full time with his mandated services.” Ex. 13.
In describing the IEP meeting, [REDACTED] stated that the parents were blindsided, because never had an educational setting been discussed where [REDACTED] would have a larger class setting than what he had had, specifically the 12:1:2 on his IEP. Instead, the parents were told that [REDACTED] should be placed in an integrated co-teaching class, which she understood to be as many as 25 students, 40 percent with IEPs.
There was no disagreement about related services being continued, but the setting presented a big disagreement. It was the first time they ever heard anything about putting him in a mixed environment with general education students. She also described [REDACTED] and [REDACTED] as the only ones talking at the meeting, as not taking into account the parents’ concerns about putting him into a larger classroom. [REDACTED], the child’s preschool teacher at the meeting, definitely supported the ICT recommendation, despite the progress report she had authored stating he would benefit from a special class full-time with his mandated services for [REDACTED]. [REDACTED] also recalled [REDACTED] saying for the record that this was the worst recommendation that could be made for the child. Tr. 397-472.
[REDACTED] also testified about attending the IEP meeting, which included discussions about his need for extensive prompting and support in a classroom of six students, as well as of his adaptive needs and toileting needs at the time. Asked about the ICT recommendation in the IEP, she stated that the classroom size and teacher-student ratio was not appropriate, that the child needed a much smaller classroom size with a student to teacher ratio that was more teachers to students. She noted the struggles he would have been understanding directions and communicating independently. She stated the district disregarded her opinion. Tr. 220-293; Ex. 20.
[REDACTED], the child’s teacher at [REDACTED], also commented on the IEP, noting that an ICT class was significantly larger than a self-contained 12:1:2 or 8:1:2 class and stating that it would have been a very inappropriate settings for the child, due to his significant sensory needs for structure and organization, and his response to any sort of disruption. She emphasized his need for one-to-one supports in order to engage appropriately. She also thought a half-time para for toileting was not appropriate, not enough, and too disruptive and challenging in the larger setting, Tr. 302-366.
Placement at [REDACTED]. The parents received a school placement in the summer for an ICT class at [REDACTED]. Tr. 397-472. [REDACTED], a school psychologist assigned to [REDACTED], testified that the school offers ICT classes for [REDACTED]. There was one class in the 2021-2022 school year, with 17 students in the class. She described the class population as mostly general education students and 40 percent with IEPs and confirmed that there had been space in the classroom for additional students with IEPs at the beginning of the school year. Her testimony was generally about the composition of an ICT class, with both the general education and special education teacher. The school also has three full-time speech providers, and two full-time and one part-time occupational therapist. Toileting paraprofessionals are available if needed. She testified that teachers were available for the entire school day for children, including art, gym, and all subject areas, but agreed that the child’s IEP indicated 20 periods of ICT instruction for the child, as opposed to a standard recommendation of 25 periods. She stated that the IEP would have been modified to fit the school schedule. She was less certain, when describing whether the classroom teachers would be staying during art or gym, which is considered mainstreaming, saying that would be a question for the school administrator. Tr. 182-194.
[REDACTED] visited the school, and spoke with an IEP coordinator, who confirmed they had a class and services, although he could not tell the class size or mix of students with or without IEPs. She also asked about the health paraprofessional for toileting, and he explained the tasks. [REDACTED] stated that she was not allowed to see the classroom, but she knew it to be larger than she thought appropriate for him with only two teachers and students with a variety of needs. Tr. 397-472.
[REDACTED]. The parents told the DOE at the [REDACTED] meeting that they were in the application process and were seriously considering acceptance. [REDACTED] noted that other schools were also explored as well. Tr. 397-472. She testified that she thought [REDACTED] would be able to address [REDACTED]’s special education needs, noting it was dedicated to educating children on the autism spectrum, with all the in-house therapy services he needed. The [REDACTED] classroom was 8: 1:2, which they thought again was appropriate for him coming from the 12:1:2/6:1:2 hybrid classroom. Tr. 397-472.
[REDACTED], a head teacher in the [REDACTED] classroom at the [REDACTED] school, stated that [REDACTED] was currently a student in her class. She met him during the application process, noting information about the range of needs included many sensory deficits in terms of obvious overstimulation.[1] She described him as a student who requires a great deal of structure, order, and predictability, noting deviation from the schedule resulting in verbal and physical oppositional behavior, as reported by his previous school. This impacts his ability to continue growing academically and to participate in the classroom, as well as interact with peers. Tr. 302-366.
She described [REDACTED] as a nonpublic special education school, serving students on the autism spectrum in grades K through 8. Class size in the lower school, grades K through 5 is 8:1:2, with an integrated social skills and academic curriculum. The school also has speech, occupational therapy, physical therapy, and counseling, and [REDACTED] received speech, occupational therapy, and physical therapy. In the 2021-2022 school year, there was one [REDACTED] classroom with seven students. The social skills curriculum was taught by a dedicated social skills teacher and was integrated in the classroom throughout the day by the teacher, associate teacher, an assistant teacher. The associate teacher in the class was certified in early childhood education; the assistant teacher has a bachelor’s degree in adaptive education. Tr. 302-366.
[REDACTED] began with [REDACTED] in November 2021, returning from maternity leave. She had noted his incoming information and received updates from her leave replacement, and also co-taught with the teacher for the first few weeks after she returned, observing and gathering information on the child’s current needs. At the time, he was reading above grade level, although comprehension did not match decoding skills. Math indicated significant behavioral challenges, and writing was similarly below grade level due to those concerns. She stated that it was very challenging for [REDACTED] to progress past the foundational skills that he came with due to behavioral challenges. She described his need for control of his surroundings and predictability in the day, due to deviation causing dysregulation. Changes could include a change in schedule or unpredictable behavior from a teacher. He would stamp his feet and clench his fists, throwing objects and yelling and hitting, at times causing the class to be evacuated. Tr. 302-366.
She described observing and supporting him while gathering data to come up with a supportive intervention plan. She described the plan with four buckets of what was expected, including a safe body, a quiet voice, listening, and completing an activity. He got stars for success with the buckets, earning time watching train videos, which was a big motivator for him. This was implemented basically every half hour every day for 2 to 2-1/2 months. It was a labor-intensive plan, requiring a one-to-one person next to him at least 60 percent of the time throughout the day. It had an enormous impact, providing the child with the tools to understand he enjoys learning, and the motivator with knowledge acquisition. When he was regulated, he was able to enjoy the learning, and the school was able to phase the interventions out by mid-March. She described the plan as teaching him what it meant to be part of the classroom in a meaningful way. She also described strategies, including having the child identify the best strategy for when he is feeling dysregulated, which was really helpful in that he was able at times to proactively identify when he needed a break. She described giving [REDACTED] the autonomy and independence that he craves so he can have control over his learning and emotions. Tr. 302-366.
[REDACTED] testified that [REDACTED] still requires other support, but not the same intense intervention. She stated that the child had several supports implemented from September 2021 but confirmed that his behavior impeded his ability to grow academically in the first part of the school, and described him beginning to access the academic portion of instruction as starting to become effective around February 2022. She described growth in his comprehension skills as exceptional, almost matching his above grade level decoding. She described progress in math also, allowing him to reach one to one correspondence to about 12, which she said was a really big hurdle. In writing, which had seen most behavioral concerns, progress was seen in him being able to express when it was difficult, with him saying it was hard and beginning to ask for help rather than having an emotional outburst. [REDACTED] confirmed there was improvement in writing numbers and letters by the end of the year. She stated he has made progress on the goals; the goals were not met but progress was made. Tr. 302-366. Exs. K, L.
His toileting was a large challenge, as he was not fully potty trained. He has numerous accidents per week beginning the year, requiring support to get cleaned up and change, he became pretty oppositional, requiring time to convince him to be changed and cleaned up. A schedule for the bathroom was established in the spring, encouraging him to use the bathroom or try every half-hour, which was later extended to once every hour, still requiring a one-to-one person. He still has several accidents per week, but more recently there had been weeks without any accidents. Tr. 302-366.
[REDACTED] confirmed progress, stating that within three months he mastered going up and down the stairs with alternating feet, and within a few months was able to write his name with the proper grip. As the time of her testimony, he was reading at almost the second-grade level and doing well in math. For the first time he was talking about his peers, which he had never done before, and his storytelling has improved. She stated that he was learning how to make predictions which he had not had been able to do before. She noted his teacher’s report that he has a strong thirst for knowledge and was a very quick learner and has a definite sense of belonging. She noted his improved balance, mastering riding a three-wheel scooter and skipping, which he couldn’t do coming into the year, and jumping a further distance. He was working on throwing and catching, which still needed improvement, but showed improvement from the prior year. Toileting was still a challenge, and she credited the school with tremendous help in trying to get him on the schedule and to be more aware of his signals, noting coordination among the three teachers in the room for potty breaks. By the end of the school year, he was more comfortable with discussions about emotions, starting to identify when he was tired or hungry, which he had not done before. He has also become more affectionate, citing the schools use of small group activities focusing on peer-to-peer interaction as well as community walks, and acceptance by his peers in the school. Tr. 397-472.
Contract. The parents’ contract with [REDACTED] was for a 10-month school year at a cost of $65,000. Ex. H. An affidavit from the school indicated payment of $15,800 as of November 2, 2021. Ex. J. At hearing on August 10, 2022, [REDACTED] testified that the parents paid out of pocket for the entire amount. Tr. 397-472.
CONCLUSIONS OF LAW
The decision in this case rests on a determination of the three-pronged test set forth by the United States Supreme Court in the Burlington case, which provided that a board of education may be required to pay for educational services obtained for a child by the child’s 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. School Committee of the Town of Burlington v. Dept. of Educ., Massachusetts, 471 U.S. 359 (1985); Florence County Sch. Dist. Four v. Carter, 510 US 7 (1993).
ISSUE 1 - Appropriateness of School District Program
A central purpose of the Individuals with Disabilities Education Act (IDEA) is to ensure that students with disabilities have available to them a free appropriate public education (FAPE). 20 U.S.C. § 1400(d)(1)(A); see Schaffer v. Weast, 126 S. Ct. 528 (2005); Bd. of Educ. v. Rowley, 458 U.S.176 (1982); Frank G. v. Bd. of Educ., 459 F.3d 356 (2d Cir. 2006). A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP, which is reasonably calculated to enable the student to receive educational benefit. See Bd. of Educ. v. Rowley, 458 U.S.176 (1982); 20 U.S.C. § 1401(9)(D); 34 C.F.R. § 300.17; see 20 U.S.C. § 1414(d); 34 C.F.R. § 300.22. The student's recommended program must also be provided in the least restrictive environment (LRE). 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. § 300.114(a)(2); 8 NYCRR 200.6(a)(1).
In this case I find that the DOE has failed to sustain its burden. It was clear that the recommended ICT program was wholly inappropriate for [REDACTED], sending him from a 6:1:2 hybrid environment with three teachers into a class of as many as 25 students with two teachers, and failing to address his behavioral needs in any serious way. While it was clear that the child did not have cognitive deficits, given his various sensory deficits and attention and behavior issues, there was no basis in the record for the recommendation. As [REDACTED] recommended, a small school setting with an increased teacher-student ratio and access to one-to-one instruction throughout the day was needed to facilitate his learning.
Instead, [REDACTED]’s testimony, noting that she had never observed or evaluated the child, relied entirely on what she was told by the child’s preschool teacher about a considerable number of improvements the child had shown in a wide range of attentional and behavioral issues. By all accounts, [REDACTED], the teacher in question, agreed with the ICT recommendation, but what was in evidence was the contradictory report she had authored less than three months before recommending “a Special Class full time with his mandated services.” There was no further written report nor was there any explanation of the discrepancies between the “reports.” There was no explanation of why behavior was not addressed in the IEP, with only a single goal about self-regulation skills and attention, and with the only excuse for a plan being management needs noting his need for a structured classroom environment with minimal distractions. There was no explanation of how that would occur in a class three or four times the size pf the class he had been in. I note that [REDACTED] was quoted as saying that this was the worst recommendation that could be made for the child.
The limitation of special education support in an ICT setting to 20 periods weekly was also inappropriate, adding an extra layer of failure to the district’s actions. I note [REDACTED]’s rejection of a general education setting as not providing sufficient support for [REDACTED], yet somehow defending a program that would have left him without any special educational support during all the remaining hours of lunch and instruction in full classes for art, gym, dance, and science. Given the inadequacy of the recommendation, clearly the recommended placement implementing the inappropriate plan also fails.
For the reasons noted above, I find the district failed to provide FAPE to [REDACTED].
ISSUE 2 - Appropriateness of Parent Placement
Under the second prong of Burlington, the parents bear the burden of proving the appropriateness of the services sought for [REDACTED]. M.S. v. Board of Education of the City of Yonkers, 231 F.3d 96, 104 (2d Cir. 2000); Application of a Child with a Disability, Appeal No. 99-51; Application of a Child with a Disability, Appeal No. 94-29; Application of a Child with a Disability, Appeal No. 95-57. In order to meet that burden, the parents must show that [REDACTED] offered an educational program designed to meet [REDACTED]’s special education needs. School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); Application of a Child with a Disability, Appeal No. 99-51; Application of a Child with a Disability, Appeal No. 98-76; Application of a Child with a Disability, Appeal No. 94-29. A unilateral placement is only appropriate if it provides education instruction specifically designed to meet the unique needs of a handicapped child. Gagliardo v. Arlington Central School District, 489 F.3d 105 (2d Cir. 2007).
In this regard, I find that the parents have sustained their burden of demonstrating the appropriateness of the program at [REDACTED] for [REDACTED]. I credit [REDACTED]’s evaluation and recommendation and note that the program at [REDACTED] met the standards articulated in the evaluation. I credit [REDACTED]’s description of the program as addressed the child’s severe behavioral issues with a plan that allowed him to feel control, noting expectations for safe body, quiet voice, listening, and completing an activity, with rewards that worked as motivation for him. As she described, it was a labor-intensive plan which had an enormous impact in [REDACTED]’s understanding and enjoyment of learning and teaching him what it meant to be part of the classroom in a meaningful way. I note the success in that the school was able to phase out the interventions by mid-March. I credit the strategies designed to give the child control over his learning and emotions, allowing him to identify the best strategy for when he is feeling dysregulated and needs a break. Specific progress was noted in progress reports, and specifically in “exceptional” comprehension skills, math one-to-one correspondence, and writing numbers and letters, and in him expressing difficulty and asking for help in lieu of an emotional outburst.
In addition, I credit [REDACTED]’s testimony concerning [REDACTED]’s progress in various balance and coordination and motor activities. I also note her testimony that he was more comfortable with discussions about emotions, starting to identify when he was tired or hungry, and becoming more affectionate, which she attributed to the school’s use of small group activities and community walks.
I discount the district’s position that at best the program was appropriate for only a portion or half of the year. First, I note that there was progress, just goals not being met in the first half of the year, as well as the more significant progress made following implementation of the behavior plan. Certainly as [REDACTED] testified, an effective plan could not be created without first observing the student and taking data concerning his behavior. Even more significant, it is the parent’s decision at the start of the school year that is dispositive in this regard. The district also argued that the parents decided to have [REDACTED] attend [REDACTED] long before the start of the school year, thus not entitling them to tuition reimbursement for the full year. That claim must fail. The parents informed the DOE of the application process during the IEP meeting, and their decision to have [REDACTED] attend [REDACTED] before the start of the 2021-2022 was based on legitimate concerns they expressed about an ICT program with too many students and without sufficient support.
For the reasons noted above, I find that [REDACTED] provided a program for [REDACTED] designed to meet her special education needs.
ISSUE 3 - Equitable Considerations The third prong of the Burlington decision requires a balancing of the equities in determining whether reimbursement should be awarded. The Individuals with Disabilities Education Act (IDEA) provides that an award of tuition reimbursement may be reduced or denied if notwithstanding their being advised that they should do so, parents neither inform the CSE of their disagreement with its proposed placement and their intent to place their child in a private school at public expense at the most recent CSE meeting prior to their removal of the child from public school, nor provide the school district with written notice of such information ten business days before such removal. 20 U.S.C. 1412(a)(10)(C)(iii).
In this case, there was no evidence that the parent did anything but cooperate with the DOE at all times. As noted, the district representative offered no opinion on equities. Under the circumstances, there is no evidence to warrant any denial of an award.
Transportation. The 2021-2022 school year has passed, making an order for transportation not meaningful for the past but potentially useful for the future. As the district representative offered no position on transportation, an order will include provision for special transportation as indicated on his IEP.
ORDER
- • The DOE shall reimburse the parent $65,000 for payment made [REDACTED]’s tuition at [REDACTED] for the 2021-2022 school year.
- • The DOE shall provide special transportation for [REDACTED] to and from school.
IT IS SO ORDERED.
Dated: October 28, 2022
_____________________________
NANCY M. LEDERMAN
Impartial Hearing Officer
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.
An Appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for proceedings before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.
EXHIBITS
DEPARTMENT OF EDUCATION EXHIBITS
1 Due process complaint, 12/7/20, 6 pages
2 Psychological report, 1/13/20, 8 pages
3 Social history report, 1/13/20, 2 pages
4 Physical therapy evaluation, 1/27/20, 6 pages
5 Occupational therapy evaluation, 1/28/20, 6 pages
6 Speech-language evaluation, 1/29/20, 5 pages
7 Child outcome summary, undated, 12 pages
8 Educational observation, 1/30/20, 2 pages
9 Educational evaluation, 1/30/20, 7 pages
10 Preschool student evaluation summary report, 2/11/20, 7 pages
11 Confidential psychological evaluation, 11/13/20, 18 pages
12 Clinical physical progress report, 1/4/21, 1 page
13 [REDACTED] progress report, 1/13/21, 2 pages
14 Preschool occupational therapy [REDACTED] report, 1/14/21, 3 pages
15 Annual classroom progress report, 1/27/21, 4 pages
16 Preschool occupational therapy annual report, 1/28/21, 3 pages
17 Annual clinical physical therapy progress report, 1/29/21, 2 pages
18 Speech-language evaluation, 2/23/21, 8 pages
19 Social history update, 3/2/21, 4 pages
20 IEP, 4/7/21, 30 pages
21 Prior written notice, 5/7/21, 4 pages
22 Prior written notice, 6/11/21, 5 pages
PARENT EXHIBITS
A Notice of unilateral placement, 8/25/21, 3 pages
B Due process complaint, 12/7/21, 6 pages
C CPSE final notice of recommendation, 3/24/21, 2 pages
D CPSE IEP, 3/24/21, 17 pages
E Social history update, 3/21/21, 4 pages
F Speech-language evaluation, 3/5/21, 7 pages
G Autism elopement alert form, 11/18/21, 2 pages
H [REDACTED] contract, 4/23/21, 2 pages
I [REDACTED] student schedule, 2020/2021, 1 page
J [REDACTED] affidavit of payment, 11/2/21, 1 page
K [REDACTED] progress reports, Fall 2021, 16 pages
L Progress reports, 2022, 15 pages
M Assessment information, undated, 4 pages
N [REDACTED] packet, 2/8/21, 12 pages
Footnotes
[1] The transcript incorrectly reports her as saying that the school determined he would be an inappropriate student for [REDACTED]. The actual statement was that he would be an appropriate student for [REDACTED]. Tr. 313.