New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 568165 - NYC: 223202

FINDINGS OF FACT AND DECISION

Case No.: 223202

Student’s Name: [REDACTED]

(hereinafter referred to as “Student”)

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Request by: [REDACTED]

(hereinafter referred to as “Parent”)

Hearing Dates: February 15, 2022

Record Close Date: March 12, 2022

Hearing Officer: Anjelica Cappellino

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 15, 2022

For the Student:

[REDACTED], Parent

For the Parent:

[REDACTED], District Representative

INTRODUCTION

This matter comes before the undersigned hearing officer (“IHO”) through the Parent’s Due Process Complaint (“DPC”) filed on December 27, 2021. See D-Ex. 1.^[1] The Parent, who represents herself pro se, is asserting that the New York City Department of Education (“the District”) did not provide the Student with an appropriate placement for the 2021/2022 school year. The District submitted a response on December 30, 2021 denying the allegations. See D-Ex. 2.

PROCEDURAL HISTORY

The undersigned IHO was appointed to the above matter on December 29, 2021. A prehearing conference was held on February 3, 2022. A hearing was conducted on February 15, 2022. At the hearing, the District put forth its case, which consisted of witness testimony from school psychologist, [REDACTED], and exhibits 1 through 13. The District maintains that the Student’s present Individualized Education Plan (“IEP”) “was reasonably calculated to confer” an educational benefit, and as such, the Student is not entitled to relief. Tr. 55. The Parent presented her own testimony, as well as the testimony of [REDACTED], the Student’s stepfather. The Parent’s Exhibits A, C, D, E, and F were entered into evidence.^[2] As part of her relief request, the Parent seeks “an autism-based setting” and is “open to any school that is ASD-based.” Tr. 61.

FINDINGS OF FACT

The Student’s Background and History The Student is [REDACTED] years old and currently attends kindergarten in a 6:1:1 setting at a [REDACTED]. Tr. 86. The Student and Parent are from Pennsylvania and recently moved to New York City. Prior to his autism diagnosis, the Student was in an Early Intervention Program in Pennsylvania, and per an evaluation report, exhibited delays in the areas of cognitive development, communication, social, emotional, physical, and adaptive development. See D-Ex. 3, Early Intervention Evaluation Report, dated October, 9 2020 at 9-13. On March 4, 2021, during a pediatric psychological evaluation conducted in Pennsylvania, the Student was diagnosed with Autism Spectrum Disorder, Speech Sound Disorder, and Developmental Delay. See D-Ex. 4, Pediatric Psychological Evaluation Progress Notes at 9. The evaluation concluded that the Student, who is mostly nonverbal, “evidences significant delays across a range of developmental domains including cognitive, fine motor, adaptive, as well as…in receptive and expressive language skills.” Id. at 9. The evaluation recommended that the Student would “benefit from a supportive, highly structured environment,” “a low student-to-teacher ratio” and “ample opportunity for individual attention and small group instruction.” Id.

The Student and Parent moved to New York City from Pennsylvania in 2021 and the Student was enrolled at his present school on September 21, 2021. See D-Ex. 8, Educational Evaluation, dated November 18, 2021, at 1. Prior to his enrollment and in advance of his IEP meeting, the District conducted evaluations which included a social history evaluation, See D-Ex. 7, Social History Evaluation, dated August 3, 2021, as well as a “classroom observation”^[3] and psychoeducational assessment. See P-Ex. F, Prior Written Notice, dated September 20, 2021, at 2. However, no psychoeducational report was ever provided from the Student’s August 2, 2021 assessment.

During the psychoeducational evaluation, the Student spit on and hit the evaluator in an attempt to get out of the room, and as such, the evaluator described him as “not testable.” Tr. 192. Despite no report, the Parent indicated that the evaluator’s assessments and individual goals “aligned directly” with her own, and that the Student needed “one-to-one” in a “more restrictive setting.” Tr. 192-3. According to the Parent, the evaluator said the Student “needed to be in an ABA environment.” Tr. 193. The Parent testified that she never received the evaluation, despite it being listed on the Prior Written Notice, because the evaluator no longer worked for the District at the time of the IEP. Tr. 194. This individual also conducted the initial “classroom” observation. Tr. 200. The District is “certain” the evaluation was conducted “but no report was ever produced.” Tr. 195; 203-5. Although the Student was ultimately reevaluated in November at the Parent’s request, the Parent believes that had she had the same evaluator that conducted these two observations and assessments to conduct the IEP, he would have known how to place the Student.^[4] Tr. 201.

The August 2021 IEP

Despite no written report and the evaluator no longer working for the District, an IEP meeting was conducted on August 16, 2021. Tr. 203. Because no report existed, the IEP was based on the reports from Pennsylvania. Tr. 205. The Student’s disability classification was autism. See D-Ex. 11, August 30, 2021 IEP at 1. The IEP recognized that the Student exhibited difficulties with language acquisition and early academic skills and was not yet toilet trained. Id. at 3. The IEP recommended a 12-month special education classroom in a 6:1:1 setting along with occupational therapy three times per week for 30 minutes (one individual session; two group sessions), speech-language therapy three times per week for 30 minutes (two individual sessions; one group session), and parent counseling and training for 60 minutes once a month. Id. at 18.

The Student was unable to start on the first day of school because the Parent had not yet received his placement or information concerning bussing. Tr. 210. Once the placement was obtained (though transportation services were not provided for some weeks later), the Parent testified that the Student experienced some difficulty on his first day transitioning into the school building with the paraprofessional, and she grabbed his wrist because he was pulling away from her. Tr. 212. The Parent expressed disappointment with the school, noting that she was never provided any written documentation, such as daily behavior reports or reports on his goals. Tr. 215-6. The Parent further expressed frustration at communicating with the school psychologist, [REDACTED]. As the Parent described: “[REDACTED] is only present on Wednesdays at the school, so it was very hard for her even when it came to paperwork and things like that my doctor sent in. She was never available. So each time he sent in his recommendations and things like that, she kept saying she didn’t receive it. So what I did, I had him send it to me and I directly brought it into the school because that would have played a huge part in [the Student’s] overall recommendation and placement.” Tr. 214-15.

The December 2021 IEP In light of the Parent’s concerns, on October 5, 2021, she requested a re-evaluation. See D-Ex. 5, Re-evaluation Request Email at 1. School psychologist, [REDACTED], completed the reevaluation for the Student in November 2021, which consisted of a classroom observation, educational evaluation, and social history with his parents. Tr. 77; See also D-Ex. 8, Educational Evaluation, dated November 22, 2021; D-Ex. 9, Classroom Observation, dated November 16, 2021. [REDACTED] also reviewed the physical examination, his attendance, and the Student’s SANDI (Student Annual Needs Determination) results. Tr. 89. As [REDACTED] testified, the Student’s “skills were assessed informally, as the Student had “difficulty in terms of understanding questions…in standard form.” Tr. 77; See also D-Ex. 8 at 2. It was determined that the Student “did possess some academic skills. He was able to identify letters, some sounds, counting, identifying or recognizing numbers, as well as shapes, quantities.” Tr. 78. In terms of [REDACTED] behavioral observations, the Student required “rewording of the questions, paraphrasing, repetition, prompting,” and “had difficulty attending on his own independently. He was receptive, though, in terms of providing him with the…consistent refocusing or redirection, prompting, he was able to respond…with those supports.” Tr. 78. In terms of classroom functioning, the Student has a “short attention span and is easily-distracted.” See D-Ex. 8 at 2. “He requires one on one support to stay on-task and focus,” and “further requires behavior reinforcement in order to focus and complete undesired tasks.” Id. The Student is not toilet-trained and “requires prompts to imitate gross motor movements.’ Id.

[REDACTED] observed the Student “during a whole group lesson,” during which time he “was able to remain in his seat,” and was attentive while watching music and songs on a smart board.” Tr. 79. He was able to engage with ongoing prompting and redirection and he was able to follow “simple one-step directives.” Tr. 79-80. During a one-on-one activity working with puzzles and matching numbers, the Student was able to “show and display his skills” with “consistent one-to-one redirection and prompting and repetition.” Tr. 80. The Student was observed for a class period for about “40, 45 minutes.” Tr. 80. See also D-Ex. 9 at 2.

Because the Student had a cognitive assessment “fairly recently within less than a year,” [REDACTED] did not conduct a cognitive assessment of the Student, but rather, reviewed the Student’s previous pediatric psychological evaluation. Tr. 81; See also D-Ex. 4. [REDACTED] testified that the findings noted that the Student “does present with significant delays in his reasoning abilities.” Tr. 82. [REDACTED] stated that these findings “would hold…in terms of validity.” Tr. 83. [REDACTED] is unaware as to whether the Student’s current school follows “a specific curriculum relative for students that are on the spectrum” but has observed that the school does “include ABA in their instruction as part of their curriculum” for these students. Tr. 86

[REDACTED] was present at the December 1, 2021 IEP meeting. Tr. 83; See also D-Ex. 12, December 3, 2021 IEP at 31. The above findings were memorialized in the December IEP. The Student’s SANDI scores in the areas of reading, writing, math, communication, and social development were in a markedly low range. See D-Ex. 12 at 2. Pursuant to the “Unique Curriculum Student Profile Assessment,” the Student “needs individualized supports, but is able to complete assigned lessons.” Id. at 3. The Student remains mostly nonverbal. Id. at 5.

As stated in the IEP, the Parent expressed frustration with the Student’s placement and believes he needs to be in a school for students with autism, such as a ASD-based non-public school, and one that provides ABA services. The District noted that strategies to meet the Student’s needs “can be and are currently being implemented within his current school program, including those that utilize ABA principles.” Id. The Parent also noted that the Student’s medical doctor recommends a specialized school and has “attempted to provide this documentation but was unable to reach the psychologist or fax it to the school.” Id. at 7. The Parent was advised that she could still provide the documentation to the school and the additional information could be considered. In a Request for Medical Accommodations form, dated January 5, 2022, the Student’s physician stated that: “Based on patient’s diagnosis, it would be recommended that he is placed in an autism-based setting with trained professionals who are familiar with ABA therapy, rather than a general special education environment.” See P-Ex. E; Tr. 234-35.

The IEP team discussed the appropriateness of a “non-mandated” 1:1 behavior paraprofessional and “the ongoing data-collection for an FBA [Functional Behavior Assessment].” Id. at 8. At the time, a FBA and Behavior Intervention Plan (BIP) had not yet been completed, and the team agreed to reconvene once the FBA was completed. Id. at 8.^[5] Overall, in comparison to the August IEP, though there were updates to the Student’s goals, there was no change in recommendation, including the Student’s placement and related services. Id. at 12-23.

The Parent maintains that the December IEP’s recommendations are inappropriate and that that the Student has regressed since December. Tr. 223-226. She seeks a more restrictive environment, with ABA professionals, in “an autism-based school.” Tr. 220-21. Although the Parent submitted information concerning the QSAC school, See P-Ex. D, an ideal school in her opinion, she is “open as long as it’s autism-based.” Tr. 230. The District noted that during resolution, they discussed the possibility of the AIMS (acronym unknown) pilot program which is an autism-based setting with ABA in a district school, but that “there’s a period of time that it’s going to take…to see if he would be a good match.” Tr. 237-38. It is the Parent’s understanding, based on communications with those involved with the program, is that the Student may not qualify due to some of his behaviors. Tr. 239.

Overall, it is the District’s position that the December IEP corrects the flaws of the August IEP and that the Student has been provided with a free and appropriate public education. Tr. 257. The District noted that the Student’s teacher has experience with ABA and “the teacher develops her classroom setting in that vein, or in the spirit of behavior modification.” Tr. 257-8. Although the District does not find that a non-public school is appropriate, it suggests that, if included to side with the Parent, a neuropsychological assessment can provide more information to “make a better determination about his viability for an NPS.” Tr. 258. It is the Parent’s position that the District failed to treat the Student, and cites the missing paperwork and lack of communication as hurdles to the Student’s progression. Tr. 259. She maintains that a non-public, autism-based setting is necessary. Tr. 260.

DECISION

Applicable Law The Individuals with Disabilities Education Act (“IDEA”) offers States federal funds to assist in educating children with disabilities. 20 U.S.C. § 1400 et seq.; See Arlington Central School Dist. Bd. of Ed. v. Murphy, 548 U.S. 291, 295 (2006). In exchange for the funds, a State pledges to comply with a number of statutory conditions. Among them, the State must provide a free appropriate public education—a FAPE, for short—to all eligible children. § 1412(a)(1); Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988, 993 (2017). 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).

A FAPE is offered to a student when: a) the board of education complies with the procedural requirements set forth in the IDEA; and b) the IEP developed by the CSE through IDEA’s procedures is “reasonably calculated to enable the student to receive educational benefits.” Board of Ed. v. Rowley, 458 U.S. 176, 206-07 (1982); See also R.E., 694 F.3d 167, 189-90 (2d Cir. 2012). A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” Rowley, 458 U.S. at 203. The IDEA does not “articulate any specific level of educational benefits that must be provided through an IEP.” Id. at 189. However, an IEP must be “likely to produce progress, not regression,” and provide opportunities beyond “trivial advancement.” Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998).

“[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wishes in the way of substantive content in an IEP.” Walczak, 142 F.3d at 129 (quoting Rowley, 458 U.S. at 206). “Multiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not.” R.E., 694 F.3d at 190-191. If procedural violations under IDEA are alleged, an administrative officer may find that the student was denied a FAPE only if the procedural inadequacies: a) impeded the student’s right to a FAPE, b) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or c) caused a deprivation of educational benefits. 20 U.S.C. § 1415(f)(3)(E)(ii); 34 CFR 300.513(a)(2); 8 NYCRR 200.5(j)(4)(ii); See also R.E., 694 F.3d at 190.

In formulating a student’s IEP, the IDEA requires that the IEP team “review existing data on the child, including – (i) evaluations and information provided by the parents of the child; (ii) current classroom-based, local, or State assessments, and classroom-based observations; and (iii) observations by teachers and related services providers.” 20 U.S.C. § 1414(c)(1)(A); See also 34 C.F.R. § 300.324(a)(1)(iii) (“In developing each child’s IEP, the IEP Team must consider…[t]he results of the initial or most recent evaluation of the child…”). Furthermore, New York regulations mandate specific assessments be completed for the comprehensive evaluation, such as a physical examination, an individual psychological evaluation (unless deemed unnecessary by a school psychologist), a social history, an observation of the student in the student’s learning environment, and such other evaluations needed to ascertain the factors contributing to the suspected disability. The results of the evaluations must be provided to the parent. 8 N.Y.C.R.R. § 200.4(b)(6)(i)(d)(xii).

The IDEA requires that parents of a child with a disability be afforded an opportunity to “examine all records relating to such child and to participate in meetings with respect to the identification, evaluation, and educational placement of the child, and the provision of a free appropriate public education to such child, and to obtain an independent educational evaluation of the child.” 20 U.S.C. § 1415(b)(1). Predetermination of an IEP without meaningful parental input constitutes a procedural violation of Section 1415, which “can rise to the level of a substantive harm, and therefore deprive a child of a [FAPE]....” J.G. ex rel. N.G. v. Kiryas Joel Union Free Sen. Dist., 777 F.Supp.2d 606, 648 (S.D.N.Y. 2011). Indeed, the “core of the statute” is that the IEP be developed pursuant to a “cooperative process” between the parents and the district. Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 53 (2005).

Decision

• • The District Denied the Student a FAPE In the instant matter, the Student was initially evaluated by the District in the summer of 2021, and the records of these evaluations, namely, the psychological evaluation and observations conducted by an unknown District psychiatrist, are unknown. The District does not contest that the evaluation occurred, as referenced in the Prior Written Notice See P-Ex. F at 2, but concedes that no report exists. Tr. 203-5.

In this case, it is evident that the August IEP did not consider its own psychiatrist’s evaluation, as the evaluation, despite being conducted, never even yielded a report. Tr. 203-5. Therefore, the August meeting was plainly conducted without reviewing any of the necessary evaluative materials and subsequently, the IEP was developed without consideration of the mandatory assessments required by law. The November educational evaluation, which was then considered during the December IEP meeting, was insufficient to remedy the August IEP’s flaws, as the IEP team was still conducting a meeting without a complete record. At a minimum, I find that this error constituted a serious violation of the procedures set forth in the IDEA. But when considering the substantive value of the August psychoeducational evaluation – namely, that it was the Student’s first evaluation in this District and that, per the Parent’s testimony, the evaluator’s recommendations aligned more with the Student’s needs – its unexplained absence from the record clearly impeded the Student’s right to a FAPE and deprived him of the educational benefits that he could have obtained if the evaluator’s recommendations were memorialized in some way. Likewise, the Parent’s opportunity to participate in the IEP process was clearly impeded, as she was denied the chance to obtain the report.

Although an IEP team is not required to adopt a parent’s recommendation for any aspect of an IEP, “it may not deprive the Parent of meaningful participation by refusing to consider... the Parent’s concerns.” E.H. v. N.Y.C. Dep’t of Educ., 164 F.Supp.3d 539, 551 (S.D.N.Y. 2016). A parent’s participation in meaningful under IDEA, when, among other things, the District “incorporated evaluations of the Student conducted by professionals of the [the Parent’s] choosing and the goals those professionals recommended.” M.M. ex rel. A.M. v. N.Y.C. Dep’t of Educ., 583 F.Supp.2d 498, 506-07 (S.D.N.Y. 2008). In the instant matter, through no fault of her own, the Parent could not incorporate the Student’s first psychological evaluation because, for reasons still not entirely and clearly known, the District’s own evaluator failed to generate a report. This is of significance to the Parent’s position because this evaluator allegedly recommended “one-to-one” in a more restrictive setting and the use of ABA services. Tr. 192-3. These issues were further expounded by the District’s failure to consider recommendations from the Student’s physician, which also included an ABA, autism-based setting. See P-Ex. E; See D-Ex. 12 at 7. Although not bound by any of these recommendations, I find that the District failed to properly incorporate these evaluations into both IEPs.

Lastly, despite the latest IEP indicating an FBA and BIP will be conducted and then the IEP team will reconvene, the District has yet failed to conduct these assessments. Id. at 8. “The purpose of an FBA is to ensure that the IEP's drafters have sufficient information about the student's behaviors to craft a plan that will appropriately address those behaviors. L.O. ex rel. K.T. v. N.Y.C. Dep't of Educ., 822 F.3d 95, 111-12 (2d Cir. 2016)  (citing R.E., 694 F.3d at 190). Although the “[f]ailure to conduct an FBA... does not render an IEP legally inadequate under the IDEA so long as the IEP adequately identifies a student's behavioral impediments and implements strategies to address that behavior…the failure to conduct an adequate FBA is a serious procedural violation because it may prevent the CSE from obtaining necessary information about the student's behaviors, leading to their being addressed in the IEP inadequately or not at all,” L.O. ex rel. K.T. v. N.Y.C. Dep't of Educ., 822 F.3d 95, 111-12 (2d Cir. 2016) (internal citations omitted). “[S]uch a failure seriously impairs substantive review of the IEP because courts cannot determine exactly what information an FBA would have yielded and whether that information would be consistent with the student's IEP.” Id.

The Student’s IEPs could not have been reasonably calculated to enable him to receive educational benefits if there is missing data, unconsidered and/or unreviewed physician’s recommendations, and untimely FBAs and BIPs. Therefore, I find that the totality of the procedural errors as stated above rose to the level of a substantive denial of the Student’s right to a free appropriate public education.

• • Evaluations are Immediately Needed to Ensure the Student’s Appropriate Placement Although the Parent is not necessarily seeking a reevaluation because she “would have preferred they utilized [the August] assessment,” it appears that the August assessment does not exist and as such, it would be impossible to consider. Tr. 202-3. As such, the only psychological evaluation remaining is the one that the Parent contests, See D-Ex. 8, and the remedy would be to provide the Parent the opportunity to obtain an independent evaluation of her own. See 8 N.Y.C.R.R. § 200.5(g) (“If the parent disagrees with an evaluation obtained by the school district, the parent has a right to obtain an independent educational evaluation at public expense.”). Therefore, I find that the District’s suggestion to conduct a neuropsychological evaluation is appropriate.

In addition, I find that the District failed to set forth any reason why the Student’s Functional Behavior Assessment and Behavioral Intervention Plan have not yet been completed. There is an immediate need for these assessments in order to properly evaluate the Student during his next IEP.

In light of the incomplete evaluative record, I find the issue of whether the Student needs to be deferred to the Central-Based Support Team for a non-public school placement to be premature. However, upon receipt of the above assessment and evaluations, the IEP team should immediately reconvene to determine the appropriateness of the current placement and whether deferral to the CBST is warranted.

ORDER

Based upon the Findings of Fact, the District failed to offer the Student a free appropriate public education for the 2021/2022 school year. It is hereby:

• • ORDERED that the District shall immediately, but no later than 30 days from the date of this Order, complete and finalize the Functional Behavior Assessment and Behavioral Intervention Plan;
• • ORDERED that the District shall, with parental consent, directly fund an independent neuropsychological evaluation from a provider of the Parent’s own choosing, not to exceed market rate; and
• • ORDERED that, upon receipt of the above assessments and evaluation, the Committee on Special Education shall immediately reconvene to prepare an Individualized Education Plan for the Student that incorporates and is consistent with those findings, including a determination as to whether CBST deferral is appropriate.

SO ORDERED

DATED: March 12, 2022

____/s/________________________

Impartial Hearing Officer

Anjelica Cappellino, Esq.

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.

DOCUMENTS ENTERED INTO THE RECORD

District’s Evidence

Exhibit Date Pages

1 Due Process Complaint 12/27/21 4

2 Due Process Response 12/30/21 3

3 Early Intervention Process Evaluation n/a 19

4 Progress Notes 3/4/21 11

5 Re-evaluation Request 10/5/21 1

6 Consent for Teletherapy 10/6/21 1

7 Social History Evaluation 7/19/21 5

8 Educational Evaluation 11/18/21 3

9 Classroom Observation 11/15/21 2

10 Parent Email 10/4/21 1

11 IEP 8/30/21 25

12 IEP 12/3/21 31

13 Child & Adolescent Health Exam Form 10/28/21 3

Parent’s Evidence

Exhibit Date Pages

A Autism Speaks website n/a 1

C Autism Speaks website – ABA information n/a 1

D QSAC website page n/a 1

E Request for Medical Accommodations 1/5/22 1

F-1 Notice of IEP Meeting 7/28/21 3

F-2 Prior Written Notice 9/20/21 4

Footnotes

[1] District’s exhibits are collectively referred to as “D-Ex.”

[2] The Parent’s exhibits are collectively referred to as “P-Ex.”

[3] As the school year did not yet begin, the observation was not done in a classroom and was for about an hour. Tr. 194; 199.

[4] When asked whether a reevaluation was part of her relief, the Parent stated she is not requesting an additional one, but rather, “would have preferred they utilized [the August] assessment, and then we would have never had this issue.” Tr. 202-3. See also Tr. 207 (“The relevancy of this is because had we had the initial report, and not just had random people that never even interviewed or met with [the Student] do the IEP, then maybe a lot of this could have been avoided.”)

[5] To date, the “school is working on developing a functional behavior assessment and a behavior intervention plan, if necessary.” Tr. 69.