New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 567714 - NYC: 222807

FINDINGS REDACTED OF FACT & DECISION

Case No.: 222807

Student’s Name: [Redacted]

(referred to as “Student”)

Date of Birth: [Redacted]

District: [Redacted] – NYC DOE

Hearing Request by: [Redacted]

(referred to as “Parent”)

School: [Redacted]

(referred to as “Private School”)

Date of Complaint: December 15, 2021

Hearing Dates: August 12, 2022

Actual Record Close Date: August 16, 2022

Decision Date: August 30, 2022

Hearing Officer: Vanessa M. Gronbach, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 12, 2022

For the Student:

[Redacted]Esq., Parent Attorney

[Redacted], Parent

[Redacted], Program Director

For the Department of Education:

[Redacted] Esq., District Representative

ISSUES

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) through the Parents’ Due Process Complaint (“DPC”) filed on or about December 15, 2021, regarding the 2021/22 school year (P-Ex. A)^[1]. The DPC alleged that the District denied the Student a Free Appropriate Public Education (“FAPE”) as required by the Individuals with Disabilities Education Act (“IDEA”) by not providing an appropriate program and placement for the 2021/22 school year (P-Ex. A). The Parent has requested tuition reimbursement / direct payment for their unilateral placement of the Student at the Private School (P-Ex. A).

PROCEDURAL HISTORY

The undersigned was appointed as hearing officer in this matter on December 15, 2021. A prehearing conference was held on January 27, 2021, to discuss the issues in the case. After several status conferences and a lack of communication from the District, a hearing was scheduled for August 12, 2022. The hearing concluded in one day (See, Transcripts).^[2] The District did not present a case. The District requested for documents to be admitted into the record however, the District had only disclosed those documents to the Parent the evening before the hearing and the request was objected to and sustained. The Parent presented exhibits^[3] and three witnesses by affidavit. The record closed on August 16, 2022. There were approximately five extensions of the compliance timelines granted by this Hearing Officer, to allow for the District to investigate the matter and then to accommodate witnesses.

FINDINGS OF FACT

The Student was a [Redacted] year old student who attended the Private School during the 2021/22 school year (P-Ex. A). The Student is diagnosed with Autism Spectrum Disorder and classified as a student with Autism (P-Ex. A-1). The Student was described as having significant delays in the areas of expressive and receptive language, pragmatic language, cognitive skills, reading, writing, math, social emotional skills, graphomotor skills, sensory processing skills, executive functioning, gross motor skills, self-regulation, and daily living skills (P-Ex. A-1). The Student was also described as anxious, easily distracted and impulsive (P-Ex. A-1).

The Student was observed to have developmental delays at seven months old and she was evaluated and approved for Physical Therapy, Occupational Therapy, and feeding therapy through Early Intervention (P-Ex. V-1). The Student continued to receive special education services in preschool and then attended a private school in kindergarten through age ten (P-Ex. V-1). The Student attended a different private school in middle school where she remained through the summer of 2019 (P-Ex. V-1). In September 2019, the Student began attending the current Private School and has been there since (P-Ex. V-1).

On April 27, 2021, the Parent participated in a CSE meeting to review the Student’s IEP for the 2021/22 school year (P-Ex. V-1). The Parent had not been contacted by the District regarding the need for any updated evaluations for the Student (P-Ex. V-1). Although the IEP references the psychoeducational evaluation completed in February 2020, it was not discussed at the meeting (P-Ex. V-1). The IEP also references a vocational assessment from February 2020, however the Parent was not provided with a copy of that assessment (P-Ex. V-1).

The CSE recommended a Special Class 6:1:1 program (P-Ex. V-2). It was discussed that the students in that program had different academic and social profiles than the Student (P-Ex. V-2). The Parent was concerned that the 6:1:1 program could not provide the Student with the type and intensity of individualized instruction, academic and behavioral support that she needed (P-Ex. V-2). The post-secondary goals and coordinated set of transitional activities on the IEP were vague and did not appear to be tailored to the Student, instead some appeared to be carried over from the previous IEP and contained template language (P-Ex. V-2). Additionally, the Parent did not receive a prior written notice or school location letter for the Student for the 2021/22 school year (P-Ex. V-2). On August 17, 2021, the Parent sent the District a letter expressing their concern regarding the IEP and notifying the District that they had not received a placement, and their intent to unilaterally place the Student at the Private School for the 2021/22 school year, however the District did not respond (P-Ex. B; V-2).

The Parent signed a contract with the Private School on August 30, 2022 (P-Ex. S; V-2). The Parent did not make any tuition payments and are not able to pay costs of tuition (P-Ex. R; T; V-2). The Parent observed the Student make progress at the Private School during the 2021/22 school year, specifically in her social skills she became more expressive towards others and had grown in her actions and effects on others; and she is eager to learn and attend school each day (P-Ex. V-2).

CONCLUSIONS OF LAW

The Individuals with Disability Education Act (“IDEA”) is comprehensive statutory framework established by Congress to ensure that students with disabilities are afforded FAPE. See, 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 US 49 (2005). A “free appropriate public education consists of educational instruction that is designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child to benefit from the instruction.” Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 188 (1982). In order to demonstrate that FAPE is being provided, the school district must show “that it complied with the procedural requirements set forth in the IDEA, and that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits.” See, Application of Child with a Disability, Appeal No. 05-061, quoting, Rowley at 206. The student's recommended program must also be provided in the least restrictive environment with non-disabled peers. See, Walczak v. Florida Union Free Sch. Dt., 142 F.3rd 119 (2nd Cir. 1998).

Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally, Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Rowley, at 206-07).

An appropriate program begins with an IEP which accurately reflects the results of the 1) student’s present levels of performance; 2) provides for the use of appropriate special education services to address the child's special education needs; 3) establishes annual goals which are related to the child's educational deficits; 4) identifies transitions services; 5) provides a start and end date to the recommended program and services; and 6) criteria and evaluation procedures for the measurement of goals. See, Walzczak, supra; Id., Appeal No. 00-005. “The initial procedural inquiry is no mere formality.” Walczak, at 129. “Adequate compliance with the procedures prescribed [by IDEA] would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP.” Rowley at 206. For an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression. This progress, must be meaningful; i.e., more than mere trivial advancement. Walczak, supra.

In Endrew F. v. Douglas County School District, 580 U.S. __, 14 (2017), the Court held that, “[t]o meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances, as a focus on the particular child is at the core of the IDEA. The instruction offered must be “specially designed” to meet a child’s “unique needs” through an “individualized education program.” §§1401(29), (14) (emphasis added), to reflect the fact that a contemplated IEP must be focused on the “particular child that is at the core of the IDEA”. In such case, the school is still required to ensure the student is given an IEP that requires not just academic but also functional progress and, although the goals may differ for students, each child must have an IEP that includes goals and services to enable a child to make both academic and functional progress. The court further stated that an IEP “is not a form document. It is constructed only after careful consideration of the child’s present levels of achievement, disability, and potential for growth” §§1414(d)(1)(A)(i)(I)–(IV), (d)(3)(A)(i)–(iv), and that “a student offered an educational program providing “merely more than de minimis progress” from year to year can hardly be said to have been offered an education at all.” The Court in Endrew further stated that, “[t]he IDEA demands more. It requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Although the Supreme Court declined to elaborate on the definition of “appropriate progress” from case to case, it stated that, “the adequacy of a given IEP turns on the unique circumstances of the child for whom it was created.” Finally, The Supreme Court in Endrew declined to hold, as it declined to hold in Rowley, that “every handicapped child who is advancing from grade to grade... is automatically receiving a [FAPE].” Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty v. Rowley, 458 U. S. 176, 203, n. 25 (1982). A Student’s “IEP need not aim for grade-level advancement. But his educational program must be appropriately ambitious in light of his circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives.” Endrew F. v. Douglas 580 U.S. ___ (2017). “It cannot be the case that the Act typically aims for grade-level advancement for children with disabilities who can be educated in the regular classroom, but is satisfied with barely more than de minimis progress for those who cannot.” Id.

Here, the District did not present a case and therefore did not meet its burden in demonstrating that FAPE was provided to the Student for the 2021/22 school year. The District did not present any witnesses to explain the recommendations made in the IEP or explain why a school location was not offered to the Student.

According to the Program Director from the Private School, the IEP stated that the Student did not need “positive behavioral interventions, supports of other strategies to address behaviors that impede [her] learning or the learning of others” (P-Ex. U-6). This was incorrect given the Student’s noncompliant and sometimes aggressive behavior in the classroom while at the Private School (P-Ex. U-6). The Student needed a tremendous amount of positive reinforcement and behavioral supports to address her behavioral and academic needs (P-Ex. U-6). The annual goals included in the IEP were also wholly inappropriate and not tailored to her needs, given her cognitive delays (P-Ex. U-6). Many of the math goals were not attainable and not realistic for the Student to achieve in one school year (P-Ex. U-6). The management needs included on the IEP were insufficient to manage her social/emotional and behavioral needs, as the Student needed to be prompted to maintain appropriate physical distance from others, refrain from unwanted contact and aggression, and to speak in full sentences in an appropriate tone and manner (P-Ex. U-7). In addition, the Student needed to learn with visual and auditory aids to support her learning and the IEP failed to make any recommendation for such aids (P-Ex. U-7). Moreover, the Student was not offered a school location in which the IEP could be implemented (P-Ex. V). Based on the all of the above, I find that the District did not provide the Student with FAPE for the 2021/22 school year.

PARENT’S BURDEN

Parents seeking reimbursement “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate” Gagliardo, at 112; see M.S. v. Bd. Of Educ., 231 F.3d 96, 104 [2d Cir. 2000]). “Subject to certain limited exceptions, ‘the same considerations and criteria that apply in determining whether the school district's placement is appropriate should be considered in determining the appropriateness of the parents’ placement…’” Gagliardo, at 112, quoting Frank G. v. Bd. of Educ., 459 F.3d 356, 364 (2d Cir. 2006). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). When determining whether the parents’ unilateral placement is appropriate, ultimately, the issue turns on whether that placement is “reasonably calculated to enable the child to receive educational benefits” (Frank G., 459 F.3d at 364; Gagliardo, 489 F.3d at 115). A private placement is only appropriate if it provides education instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; 34 CFR 300.39[a][1]; Educ. Law § 4401[1]; 8 NYCRR 200.1[ww]; Rowley, 458 U.S. at 188-89).

The Supreme Court of the United States has held that the appropriateness of a unilateral placement turns on whether it is reasonably calculated to enable the child to receive educational benefits, which is not limited to a single dispositive factor. Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982). The Second Circuit cited several factors that may be considered evidence that a child is receiving an educational benefit, including grades, test scores, and regular advancement, yet clarified that courts assessing the appropriateness of a parent’s unilateral placement must “consider the totality of the circumstances in determining whether that placement reasonably serves a child’s individual needs.” Frank G. 459 F.3d at 364; accord Knable ex rel. Knable v. Bexley City Sch. Dist., 238 F.3d 755 (6th Cir.2001) (holding that a unilateral private placement with small classes, where the student made educational progress and grades and behavior improved, was appropriate). Under the IDEA, to meet the requirements for reimbursement, parents do not need to show that a private placement provides every single service required to “maximize their child’s potential.” Frank G. 459 F.3d at 364; See M.S. ex rel. S.S. v. Bd. of Educ., 231 F.3d 96, 102 (2d Cir.2000) (“The test for parents’ private placement is not perfection.”). Parents must only demonstrate that the placement provides “educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.” Frank G. 459 F.3d at 364; Rowley, 458 U.S. at 188–89. “Specially-designed instruction means adapting, as appropriate to the needs of an eligible student under this Part, the content, methodology, or delivery of instruction to address the unique needs that results from the student’s disability.” 8 NYCRR § 200.1(vv). Where “the hearing record shows that [the Private School] did not provide OT or PT...” and the school “provided programs that assisted the student in developing both fine and gross motor skills,” “the lack of these services” is “not sufficient to support a finding that [the Private School] is not appropriate given that these services did not appear to be necessary to the student receiving educational benefits and [Private School] did address the needs to some extent. The student’s primary needs related to his attention and academics, and [Private School]...adequately, if not perfectly, addressed them.” Application of the Board of Education of the Arlington Central School District, Appeal No. 16- 023 at 24-25

A private school placement must be “proper under the Act” (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school must provide an educational program which meets the student’s special education needs. See, Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129. A parent’s failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (id. at 14). The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.

“Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child’s individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child’s potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.”

(Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).

Finding that the District did not provide FAPE to the student during the 2021/22 school year, the burden now shifts to the Parent to prove the appropriateness of the Private School.

After reviewing the testimony and evidence provided, I find that they have met that burden. The Parent’s burden is to demonstrate that the Private School provided educational instruction specially designed to meet the unique needs of the Student, which is supported by such services as are necessary to permit the child to benefit from instruction.

The Program Director at the Private School testified by affidavit regarding the Private School and the Student (P-Ex. U). The Program Director is responsible for the continuous observation and evaluation of students; plans the curricula and goals at the start of the school year; meets with the classroom teachers on a continuous basis to adjust the goals as needed; and participates in annual IEP meetings held by the District (P-Ex. U-1). The Program Director also meets with the related service providers regularly and provides workshops on educational techniques to staff (P-Ex. U-1). All teachers, including lead teachers, teaching assistants, and paraprofessionals receive training provided by the Private School (P-Ex. U-1). The Private School also formally trains teachers in a variety of behavioral methodologies, communication devices, technology devices/ program/ applications, and health and safety (P-Ex. U-1).

The Private School was described as a school for children and young adults with special needs (P-Ex. U-1). The Private School is goal focused; it recognizes that each student learns in their own way, so they develop individualized goals for each student based on their own strengths and needs, with a focus on academic skills, social/emotional skills, and life skills (P-Ex. U-1). Instruction is provided by staff in a positive environment (P-Ex. U-1). The program is focused on making sure students can function as independently as possible in society after they finish school, so they work closely with their parents to carry over the work they are doing in school to home (P-Ex. U-1). They provide a high staff-to-student ratio, and students receive all of their related services in school (P-Ex. U-1). They also provide a sensory room, an indoor gym, and two heated pools, to address our students’ sensory-processing needs (P-Ex. U-1). Students also have swimming twice weekly, with either a physical therapist or occupational therapist (P-Ex. U-1). At the beginning and end of each school year, the classroom teachers conduct performance and observation-based assessments on each student to measure their baseline present levels of performance and classroom progress (P-Ex. U-2). Then, the teachers and Program Director meet monthly to check in on each student’s progress and adjust goals if necessary (P-Ex. U-2).

The Student attended the Private School during the 2021/22 school year (P-Ex. U-2). At the start of the 2021/22 academic year, the Student exhibited global academic delays and required a lot of prompting and individualized instruction to learn (P-Ex. U-2). In addition, the Student was interested in being part of a group and socializing, but she did not understand how to interact appropriately with others (P-Ex. U-2). Frequently, the Student would make her classmates uncomfortable as she did not recognize physical boundaries and would often stand too close or intentionally touch others, sometimes aggressively (P-Ex. U-2). She often spoke without exhibiting empathy and was frequently stubborn and would refuse to join in any unwanted activity (P-Ex. U-2). In order to avoid a situation that she found difficult, such as math class, she would refuse to participate (P-Ex. U-2). The Student required a lot of prompting, time to process, and work to be broken down into smaller steps in order to learn and complete work (P-Ex. U-2).

For the 2021/22 school year, the Student attended a class with a total of five students, one lead teacher, and two teaching assistants (P-Ex. U-2). All of the students in her class were functionally similar to the Student and were within two years of age, chronologically (P-Ex. U-2). The classroom itself was set up with a lot of visual and auditory aids, and lots of hands-on activities (P-Ex. U-2). In addition, it was important to link learning to life activities and skills (P-Ex. U-2). The class participated in baking, which involved both measuring and money skills when they went to the store to buy ingredients (P-Ex. U-2). Moreover, the class responded well to reward and consequences; while they were afforded warmth and understanding by their teachers, there were also consequences for inappropriate behaviors, as the students were cognitively capable of learning responsibility and accountability for their actions (P-Ex. U-2).

The lead teacher in the class was a certified special education teacher with over twenty years of experience teaching and the two teaching assistants had many years of experience in the field of special education at that time (P-Ex. U-2).

At the start of the year, individualized goals were developed for Reading/Language Arts, Math, Communication and Socialization, and Life Skills (P-Ex. U-6). Materials were designed to meet her specific goals and objectives (P-Ex. U-6). In order to appropriately educate the Student, the Private School addressed her behavioral and social/emotional needs first, with a very high staffing ratio in the classroom and someone was always available to provide the Student with behavioral supports before her behaviors worsened (P-Ex. U-2). At the beginning of the 2021/22 school year, the Student exhibited behaviors towards her peers that showed a lack of concern about their feelings and could sometimes turn aggressive (P-Ex. U-2). At the beginning of the year, the Student continued to speak in a manner that lacked appropriate emotion and was without empathy toward others and their feelings, which created an obstacle to proper peer relationships (P-Ex. U-2). Furthermore, although the Student would follow specific behavioral directives, she had not developed a sense of belonging and empathy as a motivator for good behavior (P-Ex. U-3). To appropriately address the Student’s behavioral and social emotional deficits, she needed to work with experienced educators and staff with whom she was familiar (P-Ex. U-3). Adjusting to new staff was challenging but when the familiarity was there, less time was wasted (P-Ex. U-3). Therefore, to ensure the continuity of progress, for the 2021/22 school year, the Student was purposely assigned the same classroom teacher as the prior year (P-Ex. U-3). The experienced staff at the Private School addressed the Student’s behavioral and social/emotional needs by providing her with consistent reminders and prompts to behave appropriately; and rewards and reinforcements for displaying prosocial behaviors (P-Ex. U-3). The Student was constantly reminded about cause and effect and was taught various replacement strategies (such as using appropriate words, asking a staff member for assistance, or standing away from others for a few minutes) that served the same function as her maladaptive behaviors (P-Ex. U-3). In addition, tasks were broken down, she was provided with repetition, modeling, role play techniques, and behavioral charts were used (P-Ex. U-3). The Student received rewards for such things as interacting in a calm and non-aggressive manner and for completing tasks with no more than two prompts (P-Ex. U-3). At the end of every four weeks, the goals were modified, and she received a new chart to complete (P-Ex. U-3). The behavioral and social/emotional supports put into place at the Private School were successful during the 2021/22 school year (P-Ex. U-3).

With her behavioral and social emotional needs met, the Private School was able to concentrate on the Student’s academic, daily living, and vocational skills during the 2021/22 school year (P-Ex. U-4). Throughout the day, she was provided with small group and 1:1 academic instruction, as well as prompting (P-Ex. U-4). In reading, the Student began the 2021/22 school year able to read CVC words, a few words with consonant blends, and she could recognize a small number of sight words(P-Ex. U-4). In reading comprehension, she could answer simple comprehension questions from something that was read to her, and she had the ability to sequence events (P-Ex. U-4). The Private School created a highly individualized program for her and provided small group and 1:1 instruction (P-Ex. U-4). The Private School used a variety of reading and language arts programs, and hands-on activities with different letter and reading manipulatives (P-Ex. U-4). By June 2022, the Student had added more consonant blends and diagraphs to her reading abilities and had also branched into learning Language Arts skills (P-Ex. U-4). She learned to recognize the difference between simple nouns and verbs, was able to identify the main idea of a story, and became more proficient at sequencing and compare and contrast activities (P-Ex. U-4).

The Student began the academic year with limited writing abilities (P-Ex. U-4). She could write lower case and upper case letters and formulate a simple sentence, however her writing was difficult and often letters were too large and not spaced properly (P-Ex. U-4). She required motivation in order to improve; therefore, at the Private School they allowed her to use the computer to write two sentence letters, which she enjoyed (P-Ex. U-4). By the end of the 2021/22 school year, the Student had become more proficient in typing and formulating the content of these letters, her handwriting improved as she learned to better utilize an appropriate grasp for longer periods and practiced formulating letters (P-Ex. U-4).

Math was a difficult subject for the Student and she would become frustrated (P-Ex. U-5). She started the 2021/22 school year with the ability to recognize numbers 0-10 and rote count numbers 0-10, she could tell time on a digital clock and identify coins, she understood the concept of one to one correspondence and greater and less than and was able to complete simple addition problems (P-Ex. U-5). The Student required considerable motivation to complete tasks (P-Ex. U-5). They used life-based activities incorporating necessary math skills, such as shopping and paying for items (P-Ex. U-5). She required individualized and very small group instruction to progress in math and by June 2022, the Student gained the ability to recognize and rote count to 100, she was introduced to word problems involving addition and subtraction, she was also able to identify the value of coins when at the store shopping, add together like group coins, was able to tell time on an analog clock, and began using a calculator for mathematical problems (P-Ex. U-5).

In terms of life skills (activities of daily living), the Student struggled to work well with others and was sometimes uncooperative and stubborn and would refuse to participate, necessitating behavioral interventions (P-Ex. U-5). However, with her behavioral interventions in place, in addition to prompting, the Student made considerable improvement (P-Ex. U-5). During the 2021/22 school year, the Student made significant progress and by June 2022, she was more willing to join a group, worked better with others, even if the activity being done was not her desired choice, and with supervision, she was able to go to the store in a group to purchase materials for an activity, such as baking (P-Ex. U-5). During the 2021/22 academic year, the Student was afforded ample opportunity to participate in various pre-vocational training activities, and was formally taught skills like safety, money skills, and general planning, which were utilized during pre-vocational-related activities (P-Ex. U-5). During the school day, the Student participated in many such activities including baking and cooking, which involved list making, shopping, following directions, measuring, working cooperatively, washing dishes, and cleaning up (P-Ex. U-5). She also learned office/clerical work skills, including typing, general computer skills, and copying and shredding documents (P-Ex. U-5).

The Student was also provided with related services during the 2021/22 school year, including Speech Therapy (2 x 30 1:1; 1 x 30 in a group of 3); Occupational Therapy (2 x 30 1:1; 1 x 30 in a group of 3), and Counseling (1 x 30 1:1, 2 x 30 in a group of 3) (P-Ex. F; G: H; U-6). All providers were New York State licensed in their respective disciplines and goals were created for each respective related service (P-Ex. U-6).

With respect to the student’s progress at the Private Schools, a finding of progress is not required for a determination that a student's unilateral placement is adequate, but it is a relevant factor to be considered (Gagliardo, 489 F.3d at 115, citing Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21, 26-27 [1st Cir. 2002]). Here however, the Student made progress (P-Ex. D; E; G; H; U; V). At the conclusion of the 2021/22 academic year, the Student was able to regularly complete a greater variety of tasks with prompting, encouragement, and praise (P-Ex. U-4). Additionally, the Student was better able to relate to her peers and understand the consequences of her actions with regard to their feelings and there were fewer incidents of aggression (P-Ex. U-4). By the end of the school year, the Student had developed a greater understanding of cause and effect, specifically, as it applied to her behaviors which at the beginning of the school year caused her to not participate in activities she enjoyed (P-Ex. U-4). In June 2022, she had gained a greater sense of belonging in a group with her classmates, she was more respectful of the feelings of others, had gained a sense of empathy, was more willing to take responsibility for things she had done wrong and apologized appropriately (P-Ex. U-4). The Student also made gains with her life skills and academics (as mentioned above). Based on all of the above, I find that the Private School was an appropriate placement for the Student for the 2021/22 school year.

EQUITABLE CONSIDERATIONS

Equitable considerations are relevant in determining relief “because the authority to grant reimbursement [under the IDEA] is discretionary.” Frank G., 459 F.3d at 363-64 (quoting, Burlington, 471 U.S. at 374). In balancing the equities, I find in favor of the Parent. To the extent possible, the Parent has participated in all aspects of the special education process and communicated their concerns with the District. In contrast, the District ignored the Parent’s concerns and failed to provide the Student with a school to implement the IEP.

DECISION

Based on a review of the record and the facts mentioned above, I find that the District failed to provide the Student FAPE during the 2021/22 school year. I further find that the Parent’s unilateral placement at the Private School was appropriate and that the District shall directly pay the Private School. I have considered the Parent’s other requests for relief in the Due Process Complaint and they have been denied for lack of evidence in the record.

ORDER

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

• • ORDER THAT, the District shall reimburse the Parent and/or directly pay the Private School for all tuition and fees (for the secular portion of the school day)^[4] for the Student’s unilateral placement at the Private School for the 2021/22 school year.

SO ORDERED

DATED: August 30, 2022

Vanessa M. Gronbach

Vanessa M. Gronbach, Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

An appealing party's request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.

DISTRICT EVIDENCE

Ex. Description Date Pages

NONE

PARENT EVIDENCE

Exhibit

Date

Title

Number of Pages

A 12/15/2021 Impartial Hearing Request 4

B 08/17/2021 Ten Day Notice 2

C 12/15/2021 Findings of Fact and Decision 22

D September 2021 Bi-Annual Evaluation 8

E June 2022 Bi-Annual Evaluation 8

F March 2022 Counseling Report and Goals 2

G April 2022 Occupational Therapy Report and Goals 4

H April 2022 Speech-Language Report and Goals 5

I 2021-2022 School Year Life Skills Goals and Objectives 3 J 2021-2022 School Year Vocational/Life Goals and Related Measurable Skills 2

K 2021-2022 School Year Reading Goals and Objectives 3

L 2021-2022 School Year Math Goals and Objectives 2 M 2021-2022 School Year Communication and Socialization Goals 1 N September 2021 Behavior Modification Plan 1 O 2021-2022 School Year Classroom Routines and Expected Behavior 2

P 2021-2022 School Year Daily Schedule 1

Q 2021-2022 School Year Attendance Record 1

R 01/19/2022 Affidavit of Payment 1

S 08/30/2021 Enrollment Contract 1

T 04/10/2022 Tax Return 2

U August 2022 Affidavit of Program Director 7

V

August 2022

Affidavit of Parent

3

Footnotes

[1] Exhibits shall be referred to as follows: “P” for Parent Exhibit; “D” for the District’s or Department’s Exhibits.

[2] Reference to the Transcript shall be referred to as “T”.

[3] A more detailed list of exhibits is attached.

[4] The Program Director testified that 8.8% of the school week was spent on religious instruction (T. 53-54).