Impartial Hearing Decision

THE UNIVERSITY OF THE STATE OF NEW YORK

NEW YORK STATE EDUCATION DEPARTMENT

_____________________________________________

Findings of Fact

and Decision

Case # 574010

Findings of Fact

and Decision

Case # 574010 In the Matter of [REDACTED], on behalf of [REDACTED],

Petitioners, and

[REDACTED] School District,

Respondent.

_____________________________________________

INTRODUCTION

This case was brought before me upon my designation as impartial hearing officer (IHO) to hear this matter, on June 14, 2022, pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. § 1415 (f)(1). On September 4, 2019, a due process complaint notice (DPCN, or hearing request) was filed by petitioner [REDACTED] ([REDACTED], or parent) on behalf of[REDACTED] ([REDACTED]), arguing that the [REDACTED] School District ([REDACTED], or district) had failed to provide [REDACTED] with a free appropriate public education (FAPE). The hearing convened on October 6, October 24, October 25, and November 7, 2022. A submission schedule for post-hearing briefs was established and and extensions of the deadline for decision granted in accordance with regulations.

Appearing for the district was [REDACTED], Esq., of [REDACTED], PC. Appearing for the parent was [REDACTED]., of [REDACTED], LLP.

PARENT AND DISTRICT POSITIONS

The parent’s DPCN, dated June 14, 2022, stated that the district had failed to provide [REDACTED] with a FAPE during the 2021-2022 and 2022-2023 school years, citing inappropriate program and inadequate services and supports for the child. As relief, the parent requested compensatory education for violations in the 2021-2022 school year, and the CSE to reconvene for the child’s 2022-2023 school year program, specifying supports and services to include a special education teacher, through either an integrated co-teaching (ICT) or consultant teacher model, a trained paraprofessional, support regarding his speech, sensory, and adaptive needs, and support for school personnel and parent training specifically related to general education and other inclusive settings. Ex. 1.

At hearing on November 7, 2022, the parent withdrew the claim regarding the 2021-2022 school year, asking that the IHO sign a consent order to be submitted by the parties. The parties joined in a consent decree, so ordered by the IHO on December 1, 2022, to partially resolve claims. The district was required to provide an assistive technology evaluation and compensatory education and services in speech therapy, occupational therapy, and tutoring. Under the terms of the decree, the district did not admit liability and the parent withdrew the claims concerning the denial of FAPE for the 2021-2022 school year, while the parties specifically agreed that neither party was prohibited from submitting evidence or making argument regarding the 2021-2022 school year insofar as it was relevant with respect to the remaining claim concerning the 2022-2023 school year. Ex. I.

FINDINGS OF FACT

[REDACTED], born [REDACTED], is [REDACTED] years old, living with his mother, sister, and grandmother in [REDACTED]. His mother [REDACTED] noticed issues starting when he was young; although he was smart, he was not talking. When he was about [REDACTED]years old, he received a diagnosis from [REDACTED]of autism spectrum and sensory disorders. Tr. 427-429.

[REDACTED] initially received occupational therapy and speech services through early intervention. Evaluations conducted in 2020, when [REDACTED] was two to three months short of 3 years old, showed [REDACTED] to have mild autism and sensory processing disorder, as well as issues with behavior and language and communication and motor skills. A psychological evaluation stated it was clear he had a high anxiety level and short attention span, and noted he would run around a lot, tantrum when activity was limited or he could not get what he wanted, was briefly quieted with soda or cars and moving from activity to activity very quickly. Ex. 7. Recommendations included speech therapy, occupational therapy, and a center-based integrated special education [REDACTED] program with special education services. Tr. 85-86, 427-429; Exs. 5, 6, 7, 8.

2021-2020 school year. In the 2020-2021 school year, [REDACTED] was in the [REDACTED] school district ([REDACTED]), and attended the [REDACTED]. Still [REDACTED] years old, he was classified as a [REDACTED] student with a disability. The child’s IEP, dated November 30, 2020, recommended a 6:1:1 class, with occupational therapy twice a week and speech three times weekly in 30-minute sessions. Tr. 48-51; Exs. B, D. A subsequent IEP, dated December 11, 2020, was held to add an individual full-time aide for 3-1/2 hours per day, for safety reasons. Tr. 51-53, 456-458; Ex. C. An IEP dated 2/26/21 added physical therapy twice a week, with services for the 2021 summer and the continuing 2021-2022 school year. The IEP indicated [REDACTED] needed strategies, including positive behavioral interventions, supports and other strategies to address behaviors that impeded the student’s learning of that of others. The child was placed at [REDACTED], which was an integrated [REDACTED] program with support from a special education teacher. Tr. 53-55, 85-86; Ex. 9.

According to [REDACTED], he did well in the integrated program; every now and then he had a bad day but he was participating. He didn’t progress with speech. Tr. 420-430. Progress notes from March 10, 2021 to August 30, 2021 reported “good progress” with receptive and expressive language skills, “some progress” with pragmatic language skills, and an increase in tantrums and self-harm (hitting his head). Tr. 458-460; Ex. 10.

In the summer of 2021, [REDACTED] had to take care of her injured mother who lived in [REDACTED]. [REDACTED] noted the time frame and home difficulties caring for her mother’s back injuries. Tr. Tr, 431-432, 458-461. She learned that [REDACTED] had a universal pre-[REDACTED] ([REDACTED]) program, and so she moved her family to [REDACTED]. At the end of August 2021, she talked to the school principal, [REDACTED], who said she would have to talk [REDACTED], the district’s Director of Special Programs. According to [REDACTED], [REDACTED] said that this was her first year with [REDACTED] at [REDACTED], and she would have to get back to her. [REDACTED] told [REDACTED] that [REDACTED] had the IEP from [REDACTED], which had an integrated class, and would do well with typical peers, that she would like to get him as many supports as possible, and that he needed a 1:1 aide. Tr. 431-432.

[REDACTED] testified that he met informally over the summer with the parent and the child. [REDACTED] said she thought [REDACTED] would be appropriate for general education [REDACTED] classroom and wanted the district to give him the chance to do that. There was a brief discussion about the fact that it would be a big jump from his previous IEP with the 6:1:1 class. Tr. 240-243. [REDACTED] said he understood [REDACTED] had been in an integrated 6:1:1 program, with an aide and a special education teacher, as well as occupational therapy, physical therapy, and speech. He was aware the integrated program included about six general education students. Tr. 261-263.

[REDACTED], looking at the same 2020 evaluations received from [REDACTED] when [REDACTED] registered in [REDACTED], noted the diagnosis of mild autism and the issues in social reciprocity and communication, language delays, and the recommendation of a center-based program (which she said could be either integrated setting or solely for special education students). Tr. 39-48; Exs. 5, 6, 7, 8. She described the progress notes she also received from [REDACTED] as showing “very minimal progress.” She agreed that the [REDACTED] IEP showing his need for strategies to address his behaviors was correct. Tr. 56-57, 96; Ex. 10.

IEP September 28, 2021. In fact, there was no special education program in the elementary school recommended for [REDACTED] for the 2021-2022 school year. The child’s first IEP in the [REDACTED] district, dated September 28, 2021, recommended related services of occupational therapy twice a week, speech three times weekly, and physical therapy twice weekly, in 30-minute sessions. A 1:1 aide was recommended “for safety concerns.” The IEP included no program modifications or accommodations, and the question about whether strategies, interventions, or supports were needed to address behaviors impeding the student’s learning or that of others was answered with a No. Ex. 11.

According to [REDACTED], there were only three people at the meeting, [REDACTED], the county representative, and herself. There was no school psychologist, therapist, or special education teacher present, nor any representative from [REDACTED] or[REDACTED]. [REDACTED] stated that [REDACTED] said she wanted [REDACTED] in a general education program, citing several improvements at [REDACTED] over the summer, specifically saying his speech had improved. Although related services were recommended, there was no special education programming provided; [REDACTED] said that [REDACTED] did not request it and [REDACTED] did not have the ability to do it. She said she spoke with [REDACTED] officials, who recommended a special class in an integrated setting, saying [REDACTED] needed support from a special education teacher, but the parent said he was doing much better and she didn’t want them. She agreed that the previous [REDACTED] IEP showing his need for strategies to address his behaviors was correct, although the IEP developed at the September 2021 meeting expressly stated it was not needed. The IEP also stated there was no assistive technology needed. Ex. 11. [REDACTED] conceded that she did not offer [REDACTED] special education itinerant teacher (SEIT) services for [REDACTED] in the [REDACTED] program, although she was equivocal about the responsibility to put services on the IEP if a provider was not available. Tr. 58-60, 88-103; Ex. 11.

According to [REDACTED], there was no discussion about a special education teacher, and it was never offered nor were any other programs offered. Tr. 434-435. [REDACTED], who was not at the September 2021 meeting, was aware the IEP recommended no special education support, and thought that it was because the parent had said she wanted [REDACTED] in a general education program and didn’t need support. There wasn’t any talk about having to have extra services. He didn’t think that was the only reason, but he was not sure why it was a changed from the 6:1:1. Tr. 264-265.

[REDACTED] didn’t start in class until the end of October, about October 20, 2021. [REDACTED] explained that the school needed time to hire a 1:1 aide, and they did get [REDACTED], a licensed teacher assistant who had been a substitute in the building for many years. Tr. 243-244. [REDACTED] was told they were looking to hire a new aide for him, but they never did and just pulled an aide already working at the school. The first day of school was a Thursday, and Friday [REDACTED] was diagnosed with Covid, and he missed about two weeks. Tr. 435-436.

October – December 2021. [REDACTED], the pre-K teacher at the elementary school, had [REDACTED] in her classroom from October 20, 2021 until January 2022. The general education [REDACTED] program had a maximum of 18 students, and there were 17 students in the class, all four years old. [REDACTED] had a 1:1 aide; one other student had an IEP and received speech. [REDACTED] described [REDACTED]’s behaviors at length, stating that his first day was overwhelming, with his running around and throwing toys. [REDACTED] described the first day as [REDACTED] trying to elope, and he asked [REDACTED], the [REDACTED]special education teacher to go into the classroom and see how to manage. [REDACTED] spoke to [REDACTED], who gave her a number of strategies to use, including a weighted bac[REDACTED]ack, picture schedule, a first/then schedule, sensory toys, a Rifton chair, and frequent breaks. Tr. 245-249, 292-303, 316.

[REDACTED] described her introduction to [REDACTED] on that first day, saying she sat down on the floor and introduced herself and he smiled and made eye contact with her. She described further actions trying to get him from underneath the console table, and trying to “keep him safe and kind of contained in an area.” She stated that through some of her own strategies and getting him to interact with her in a play-based situation, he came out from under the table and walked back to class. On the same day, she accompanied him to physical education, where he was running around and screaming, although at some point he did complete two of the tasks with prompting and modeling. She did not observe any plans or modifications to the program to address his sensory needs when he was in the physical education classroom. [REDACTED] was able to help him navigate the rest of the school day. She confirmed that that was the first time anyone had talked to her about [REDACTED], when he was under the table in the conference room, agreeing that it would have been better if there had been a conversation with the school team before he began the program.

At the end of the day, [REDACTED] talked with [REDACTED] and his one-to-one aide about strategies to help him navigate the school day in a more positive manner, including strategies for sensory path and first/then, saying they were rooted in applied behavior analysis (ABA). She later set up a Rifton chair, developed a first/then schedule for him, pictures, sensory things, and a weighted bac[REDACTED]ack. Tr. 138-145, 152-153

[REDACTED] said they began right away, with the schedule, sensory toys an aide brought in from home, frequent breaks, and headphones. She described using these strategies as an “all day thing,” used every day, without success. When he was throwing things, they would walk him to the principal’s office, which she estimated at 12 or 14 times. [REDACTED] only came to the classroom once when [REDACTED] was having a tantrum. According to [REDACTED], it was difficult for [REDACTED] to maintain attention for academic tasks, and was only able to engage in academics two or three times a week, mostly small academic tasks in morning 10-minute small group time with the aide. Some days he would do the activities; others he would wander. Tr. 292-303.

[REDACTED] credited [REDACTED] as providing support during the October 2021 to January 2022 time, noting [REDACTED] went in and did a couple of observations and provided some behavioral strategies. Tr. 122-127. [REDACTED] stated that [REDACTED] had no support from a special education teacher, and she thought that special education services on his IEP would have allowed him to receive some amount of support throughout the school day. She stated that it was important for special education services to be put in place wherever a child may go, knowing the level of services to which he is entitled. [REDACTED] was working for the district across several grades, and [REDACTED] needed more than she could provide given her schedule. She said she checked in two to three times a week, for between 5 to 30 minutes. Tr. 154-156. According to [REDACTED], [REDACTED] worked with [REDACTED] on his behaviors specifically. Tr. 321-323. [REDACTED] testified that she was never given a copy of his IEP, and did not perform any monitoring relative to his IEP goals. Tr. 145, 154-156. The only data she knew being taken was “some level of data for him in a notebook,” but she did not provide any data tracking sheets. Tr. 165-166. Asked about success with the strategies she had discussed with [REDACTED], [REDACTED] stated that she didn’t see “very much success with those implemented in that setting.” Tr. 151. She testified that she did make a recommendation to [REDACTED] to modify assignments, so he could do them at his table in his chair, specifically in his area, and to be more play-based as well, but she didn’t know to what extent they altered the curriculum specifically. Tr. 171-172.

[REDACTED] stated that he did a number of interventions with [REDACTED], who would be in his office for a period of time because he couldn’t stay in the classroom. [REDACTED] said he was called to the classroom often, and sometimes [REDACTED] got very loud and screamed, almost inconsolable, and they moved him down to the office. He talked about being called to the classroom to help out, saying that you couldn’t keep the student in the classroom all the time, and some of the interventions took over an hour, so he would stop at the room and say, “Let’s go over here, let’s do this.” He walked with [REDACTED] to the office in the hallways, walking with him back and forth. He estimated [REDACTED] had been in his office a total of 20 times, sometimes just for a few minutes or for transition, and sometimes for a period of time. He stated he tried different strategies to make [REDACTED] calm down, just making sure he didn’t get into areas where he could hurt himself or elope. Tr. 245-254.

[REDACTED] also testified about hearing from the principal almost immediately about [REDACTED]’s tantrums and problems with communication as well as concerns from [REDACTED] about the child’s elopement. She observed the child once, for about 20 minutes, when he was sitting at his desk with his aide and playing with a toy car. Tr. 61-63, 115-116.

[REDACTED] described [REDACTED]’s entry into the classroom as rough, saying that after exactly seven days, they wanted to kick him out. There was a parent-teacher conference with [REDACTED] and [REDACTED] [REDACTED], who told her they tried multiple interventions. [REDACTED] said she couldn’t understand having to try so many in just seven days. There was no discussion about a functional behavior assessment (FBA) or behavior intervention plan (BIP), or the possibility of an assistive technology evaluation. Tr. 436-438.

Asked about an FBA and BIP, [REDACTED] said that they first want to try his “bag of tricks,” and didn’t want to “jump the gun” before using the strategies on hand. He also cited the fact that the child had been in the 6:1:1 class before as support for not recommending an FBA or BIP. He described accommodating [REDACTED] in the general education setting as giving it “a good faith try.” He said that [REDACTED] needed the support of a special education teacher, once he saw him in the classroom, stating that in hindsight they should have given the previous IEP more weight before changing placement to the general education setting, which he thought was a mistake. Tr. 265-270. 283-284, 288-289.

Although there was no parent counseling and training on the IEP, [REDACTED] acknowledged that it should have been included and stated that it was provided with the aide and [REDACTED]. Tr. 128-130. Asked about an FBA, [REDACTED] stated it was an important part of progress of supporting the student with behavioral challenges. She agreed that the first step for students having a challenging behavior would be informal strategies, which if not successful, would go on to an FBA and BIP. [REDACTED] never had an FBA or BIP, and [REDACTED] was unaware of any conversation concerning the possibility. Tr. 156-159.

[REDACTED] did not agree with removing him from the class. Tr. 436-438. [REDACTED] ([REDACTED]), [REDACTED]’s mother and [REDACTED]’s grandmother, had been working recently worked as a substitute teacher in the school district. DR has a very strong background in education, including experience teaching learning disabled children. She said she observed [REDACTED] more than once in his [REDACTED] program. She saw him in a music class, and he was participating. In addition, she was a substitute for [REDACTED] one afternoon, and described the child as on the carpet, helping,. The teacher’s assistant was not the regular one, and [REDACTED] was helping. He also left and sat with another child, engaging in parallel play without incident. [REDACTED] said she thought [REDACTED] could be successful with the proper supports, specifically needing special education and speech therapy, as well as physical therapy and occupational therapy. Tr. 400-422.

[REDACTED] agreed that there been no program review meeting while [REDACTED] was at the elementary school to review his program and perhaps change support and improve the program before changing the placement. Tr. 273-274. [REDACTED] did sit with the parent and teacher at a conference about [REDACTED]’s needs, and told the parent about integrated programs that could help develop his skills. She noted the benefits of an integrated program, citing specifically her own experience at [REDACTED], and noted positive outcomes based on research that having models and peers can have positive impact on student outcomes. Tr. 160-163.

[REDACTED] kept notes describing the behaviors they were seeing, strategies they used, and supports that were needed.^[1] She agreed assistive technology could be provided a student with communication needs, and a behavior consultant for a student with challenging behaviors, or a special education teacher – none of which was provided. [REDACTED] agreed that he would have benefited from the support of a SEIT in her classroom, stating that there was no special education teacher in the [REDACTED] program nor a SEIT, as there was a “shortage of special education teachers.” She said her notes indicated her belief that the integrated setting would provide him an opportunity to learn and interact with neurotypical peers in the classroom, which she thought was important. She also confirmed that she thought he needed more related services than the speech, occupational therapy, and physical therapy he received for 30 minutes twice a week. She said she paid attention mostly about safety concerns, but she did not systematize any of her observations, and never took notes when things were successful. Tr. 300-302, 308-313, 319-320.

IEP December 20, 2021. An IEP meeting convened on December 20, 2021. [REDACTED] said the meeting was called because of serious concerns brought by [REDACTED], who thought they should look at what other options there would be for [REDACTED]. He and the child’s teacher, related service providers, and the country representative were in attendance, as was the parent. She described using the “folks involved in [REDACTED]’s everyday school experiences” speaking to his behaviors and progress, noting they felt the placement in the general [REDACTED] classroom was not appropriate. Tr. 64, 109-110. [REDACTED] was not invited to the December 2021 CSE meeting nor was there any special education teacher at the meeting. Tr. 160-161.

[REDACTED] acknowledged that they relied on the prior evaluations and there had been no evaluations in the interval, stating that the decision to remove him from the [REDACTED] was due to his behavior issues and escape-related behaviors. She conceded behaviors were not addressed on the IEP, stating that it was not needed on the IEP because he was being put in a setting that had behavior interventions. Tr. 110-113.

The December 20, 2021 IEP recommended an 8:1:3 integrated [REDACTED] special class at[REDACTED], a neighboring special education school, with related services of occupational therapy twice a week, speech three times weekly, and physical therapy twice weekly, all in 30-minute sessions. A 1:1 aide was not included, and [REDACTED] explained that aides “are not put on the IEPs” with this setting as they “take care of the issues within the classroom.” Tr. 65-68; Ex. 12.

[REDACTED] testified that he participated the meeting to change [REDACTED]’s placement, saying that he didn’t say very much when he was there, mostly listened. He agreed with the 8:1:3 recommendation, although he didn’t agree with the IEP statement that [REDACTED] doesn’t need behavioral support if he was staying in a general education class. He later offered the clarification that [REDACTED] didn’t need a behavior intervention plan, as he was going into an 8:1:3 class in a special education setting that was geared toward addressing some of those behaviors. Tr. 255-257, 275, 286-287. [REDACTED]’s notes noted that an integrated setting would provide him an opportunity to learn and interact with neurotypical peers. Ex. 24.

[REDACTED] stated that was no discussion at the meeting about making [REDACTED] better for [REDACTED]. He was not allowed to return. They wanted to send him to Springbrook, which was an integrated program, and there were no other placements discussed. [REDACTED] only remained in the school until early January. Tr. 250-251. His last day, was January 5, 2022. [REDACTED] said the day after he was removed from school, he was diagnosed as having a hole in his eardrums, which she thinks had been affecting his behavior, both elopement and meltdowns. Tr. 438-439, 442, 473. She later heard from an aide, who upon hearing about the problem, told her that he had been running out of the classroom with his hands on his ears. Tr. 468.

[REDACTED] did not attend Springbrook, which did not agree with the placement.. [REDACTED] did not want to send him there, and subsequent proposals for [REDACTED] were denied by [REDACTED] as too far away. Tr. 65-68, 70-71, 439-442, 463-464.

Spring 2021. Without a placement, the child received services at home. An agreement was made for the child to receive speech, occupational therapy, physical therapy, and special education teacher services for the remainder of the school year. [REDACTED] provided [REDACTED] with a list of providers. Tr. 70-76, 94-95; Ex. 15. Physical therapy began at the end of March, occupational therapy in mid-April, and special education at the end of April. Tr. 442-445. According to [REDACTED], there were not many occupational therapy classes, physical therapy went well, and the SEIT services had their “ups and downs.” Tr. 78-79, Exs. 17, 18.

[REDACTED], one of two special education teachers providing tutoring sessions for [REDACTED] at home in the spring, testified that she provided services from April 5, 2022 until June 23, 2022, one hour per week after school, for a total of seven sessions. She described working on conversational skills, taking turns, following directions, recognizing letters of his name, coloring, cutting, and reading. She described difficulties with getting him to engage, trying for “academic-related” work if he was wanting to run around or play on the swings. He was unable to focus and always doing something else. She brought special crayons, but because of social limitations he would scribble and be done. Tr. 326-338.

[REDACTED]also provided services for [REDACTED] during the spring, from April to June, for a total of nine times. Tr. 356-358. [REDACTED]talked about working on “[REDACTED] stuff, addressing behaviors, language, and gross and fine motor activities, saying that [REDACTED] didn’t have basic [REDACTED] prerequisite skills, such as numbers, shapes, cutting, grasp, and needed lots of redirecting and refocusing. He could only stay with academic tasks for two to four minutes, perhaps as much as five minutes on other interests, and might go as long as 10 minutes if interested. She said he preferred playing to academics, so she tried to teach through play. [REDACTED]said he made no progress. 359-367.

[REDACTED] stated that both [REDACTED]and [REDACTED] would bring or have him play with toys, which added to his distraction, in addition to the distractions of being in the home. Tr. 442-445. DR, who stayed in the background during tutoring sessions to avoid being too distracting, also described the therapist services, which she said seemed disjointed and unable to keep his attention. Tr. 400-422. [REDACTED] agreed that the home was not an ideal situation, presenting distractions, and that students with autism would view the distinction between school and home. [REDACTED] and [REDACTED]each confirmed that there was no BIP nor assistive technology for [REDACTED]. [REDACTED] agreed that a challenging behavior would have a BIP, although there was none for [REDACTED], and that assistive technology is often helpful for those with language delays such as autism, Tr. 347-349, 369-370.

June 10, 2022 IEP. The IEP developed for [REDACTED]’s 2022-2023 school year provided the first classification of [REDACTED] as having autism and recommended an 8:1:1 [REDACTED] special class, with occupational therapy twice a week, physical therapy twice a week, speech three times weekly in 30-minute sessions, and a 1:1 full-time aide “to ensure his safety.” The IEP stated that [REDACTED] needed strategies, including positive behavioral interventions, supports and other strategies to address behaviors, but he did not need a behavior intervention plan. It stated that he did not need an assistive technology device or service, and none was recommended. Exs. 20, 25.

The evaluations in the IEP were the same evaluation results from 2020, when the child was not yet three years old, with the exception of a physical therapy evaluation conducted in January 2021. There were no new evaluations. It also included a statement that [REDACTED] had scored at the 1st percentile on the [REDACTED] ([REDACTED]). [REDACTED], who was on the screening team for the [REDACTED] assessment, described in testimony a language portion, a fine motor piece, and a concepts station as part of the protocol, although there were no individual scores described in the IEP. Tr. 114, 146-147; Ex. 25.

[REDACTED] described her involvement with the IEP meeting as working with [REDACTED] and [REDACTED] to create the IEP. [REDACTED]described it as a “collaboration” among the three. Although the parent was present at the meeting, she was not present when the IEP was finalized after the meeting. Tr. 340-347, 361-367, 371-377; Tr. 25.

[REDACTED] and [REDACTED]both thought the recommendation appropriate. [REDACTED]’s report, discussed at the IEP meeting, noted his time on task and prompting needed for academics. She stated that she thought a special class was appropriate, because he needed “two of us to redirect him for even high interest activities,” although she did not explain who the “two of us” were. She cited a smaller setting due to distraction (both for other students and for him). Tr. 337-340-343; Ex. 17. [REDACTED] report recommended a small class setting, with a 1:1 aide, “for safety and self-awareness.” She stressed again his lack of prerequisite skills. Tr. 361-367; Ex. 18. There was no recommendation for a 1:1 aide in the IEP. Tr. 81-83.

[REDACTED] also said that she agreed with the recommendation as the best placement for him, although she had never been to the [REDACTED] program that was recommended. She noted the descriptions of others about his skills levels, and felt that it was necessary for [REDACTED] to “develop his social communication and some of his other prerequisite skills to learning before accessing the general education curriculum.” Tr. 147-149. She cited the more rigorous demands of the general education classroom setting as justifying her recommendation for the [REDACTED] program. A student has to be able to recognize and have the skills to recognize he is in an integrated setting with peer models next to him that could provide supports and demonstrate what he needs to do appropriately. Tr. 169-171. She knew the proposed program would remove [REDACTED] completely from access to typical peers, however, and agreed that she had expressed some support for the parent attorney’s idea at the meeting that the district try again with a general education placement, providing [REDACTED] with special education teacher support and working in collaboration with an inclusion consultant. Tr. 163-164, 167-171. She agreed that [REDACTED] might be able to be successful with the proper supports in general education, or that it was at least worth a try. Tr. 172-173.

[REDACTED] did not have a lot of input, just saying that he agreed with the recommendation, where [REDACTED] could have more targeted instruction. He cited the experience of what he’d seen, and talking to a classroom teacher as the general education setting not being an appropriate setting for him. Tr. 258-259.

[REDACTED], a school psychologist who had not been at any earlier meetings, was at the June 2022 meeting. Tr. 207-210. She recalled the parent wanting general education, which was not recommended. She stated her recommendation, saying [REDACTED] had some complex needs, difficulties with transitions and behaviors, which are challenging to address well in a general education environment. She noted the appeal of a perfect world where he could be in a general education classroom with supports that would make it work, and stated there were “real limitations to the area that we live in.” She specifically noted the district not being able to find people to do ABA, which she had never seen in a school. Tr. 198-200.

[REDACTED] also said she thought he was not developmentally ready. She described reviewing the child’s psychological evaluation, which indicated that his difficulty with communicating and engaging with the assessment limited some of the testing. Scores on speech and language testing showed he had trouble understanding language and expressing his own knowledge verbally. Tr. 182-190; Ex, 7. She also reviewed the [REDACTED] IEP from February 26, 2021, which was consistent with his autism diagnosis. She knew he had been in a special integrated 6:1:1 classroom, and recalled reading about tantrums. Tr. 191-193; Ex. 9. She agreed that the evaluation was two years old, and the test results an underestimation of [REDACTED]’s true ability. She denied saying he had not been successful in [REDACTED], clarifying she had only noted behavioral challenges, stating that she didn’t know if he had been successful as she didn’t know if he was there long enough to measure whether he was successful or not. She considered his time in [REDACTED] as only one piece of information she was seeking. Tr. 201-207. She was unable to recall specifics of his performance as presented by [REDACTED]. Tr. 216-218. As for the September 2021 IEP created at [REDACTED], [REDACTED] stated that special education teacher support was not listed on the IEP because it was not available through the county, but “we did implement that informally on a consultant basis through our own district.” Tr. 220.

[REDACTED], [REDACTED] program. [REDACTED], at the time of his testimony interim director of special programs for [REDACTED], had only begun in September 2022. He was not involved with decisions about [REDACTED], which had been handled by an educator who had arrived in June and then left six weeks later. He testified about the [REDACTED] programs, which included 6:1:1, 8:1:1, and 12:1:1 programs. He stated that [REDACTED] had not been assigned, and depending on the outcome of a committee meeting, they were looking at the possibility of the 8:1:1 [REDACTED] program. There are currently seven students in the specific program, six with autism. Tr. 388-397.

[REDACTED] described the program as designed for and helpful for autistic children, with a focus on academic social communication domains. Behaviors range from mild to moderate, to sometimes significant. He described the program as basically providing an organized environment, stressing the importance of the structure itself. Asked to compare to a general education setting, he stated that there was a difference in pace and in depth. Tr. 388-397. As of the hearing dates, [REDACTED] was not attending the 8:1:1 program. Tr. 83.

[REDACTED] described the recommended 8:1:1 [REDACTED] program as built for students with autism, providing the structure of a smaller classroom to better meet student educational needs. Tr. 115-116, 120-121. [REDACTED] described “the basis of [REDACTED] as program,” stating that it is a very systematic and explicit way with an environment that is very structured, noting it could be beneficial for the small class size, the intentional use of communication to foster skills, and the predictable environment. Tr. 149-150. [REDACTED] also expressed praise of [REDACTED], a program she had visited, talking about how the structure of the class is helpful for learning, with minimized expectations, reducing the frustration that leads to behavioral difficulties. She said that visual schedules would help the child’s difficulties with receptive language, while noting as unusual the difference with his higher score of expressive language. Tr. 194-198; Ex. 20.

[REDACTED] and [REDACTED] conceded he would not have access or exposure to typical peers in the recommended program. [REDACTED], [REDACTED], and [REDACTED]were less familiar with [REDACTED] and did not know if he would have any access to typical peers. Tr. 115-116, 120-121, 313-314, 368-371. [REDACTED] conceded she had never been to the actual program recommended for [REDACTED], and that her understanding was that [REDACTED] can only be in a self-contained classroom. She agreed that neurotypical peers would be positive. 351-353.

[REDACTED] confirmed that the [REDACTED] program was named after the [REDACTED] methodology, which he stated that, as with any strategy, it could be provided in most environments, although the [REDACTED] program was a center-based program without access to typical peers. Tr. 394-395. [REDACTED] did not know if it could be implemented in a general education classroom, although she thought some strategies could. Tr. 115-116, 120-121. [REDACTED], well-versed in different programs including [REDACTED], agreed that the methodology can be provided to students in general education. She confirmed that the [REDACTED] that developed the methodology offered training and support to schools on how to provide the methodology for students with autism in general education. Tr. 161-162.

[REDACTED], asked whether it would be successful in a general education classroom, stated that it used to be in a school and it would be ideal if there were a [REDACTED] classroom in an elementary school but it was not available. Tr. 210-211, 213-214.

Evaluation in July-August 2022

[REDACTED] [REDACTED], an associate professor at Stockton University, described her education in inclusive elementary and special education, extensive work focused on curriculum and instruction, and consulting work for school districts as well as with parents of students with disabilities. Ex. G. Tr. 489-497.

[REDACTED] was retained as a consultant by [REDACTED]’s family. She reviewed [REDACTED]’s educational records, including his [REDACTED] attendance in the fall of 2021, and spoke with [REDACTED] on September 7, 2022. [REDACTED] was part of the conversation, and she talked with him individually for about 10 to 12 minutes; she did not observe [REDACTED], stating that he was not currently in an educational placement. She did not speak to any of his teachers or providers from the school district, nor from [REDACTED], nor from any CSEs. Tr. 497-499, 534-535; Ex. F.

In regard to the [REDACTED] placement at [REDACTED] elementary school, [REDACTED] stated that there were many challenging behaviors, but the classroom notes by the general education teacher were anecdotal in nature, and not very informative about supports and modifications provided [REDACTED]. She said that he didn’t have a special education teacher to provide direct or even indirect special education services, and he didn’t have a one-to-one paraprofessional to support him, later offering the clarification that the para wasn’t documented in the classroom notes at all. Tr. 545-546. There was no information about academic learning experiences, or progress he was making in academics or communication, nor any indication of an augmentative alternative communication (AAC) device being used, despite his limited kind of articulation and ability to speak words at the time. She contrasted a “whole bunch of documentation” of anecdotal teacher notes of his behaviors, but classroom notes were void of information about supplemental supports, modifications, and services for the child. In regard to support from [REDACTED], [REDACTED] noted the absence of any documentation in the classroom notes, and stated that “spot support,” which might have been a good first step, was not the special education teacher support needed for a student with his complex needs. Tr. 499-502. She acknowledged use of behavioral supports such as first/then boards, sensory breaks, and weighted backpacks that could be beneficial for [REDACTED]. Tr. 537-538. She described FBAs and BIPs, and the importance of collecting data for an FBA, over multiple settings, and then reviewing information on the frequency, duration, rate, and indicators to understand the context and consequences of the behavior. Tr. 502-505.

[REDACTED] stated her opinion that [REDACTED]’s [REDACTED] experience was not predictive of whether he could be successfully supported in general education [REDACTED], stating that he hadn’t have the correct supports, a certified special education teacher, and clear behavioral strategies. She contrasted his experience in [REDACTED], where there had been clear and explicit behavioral strategies in his IEP goals around coping, breathing, and visualization. She stated that there are clear explicit strategies that can be taught to [REDACTED] to support and remind him to self-regulate in moments of frustration, but these strategies were not indicated in the IEP, or in the classroom notes at [REDACTED] elementary school. Tr. 505-507.

In reviewing the IEP for the 2022-2023 school year, [REDACTED] stated her opinion that [REDACTED] could make meaningful progress toward his IEP goals in general education. She noted he would need supports around communication, academics, and behavior, and a certified special education teacher providing direct or indirect support services to ensure a program tailored to fit his needs, while at the same time having access to the general education curriculum. Tr. 507-508. She agreed that he also needed a one-on-one paraprofessional assigned to him, who would be able to support the strategies taught by the special education teacher around self-regulation, classroom management, transitions, and generally around classroom expectations. She also thought the para would need training and support from the special education teacher, and that the team in general would need support from an inclusive education consultant for support around challenging behavior, communication, and academic modifications. Tr. 509-51 She stated that he could make meaningful progress in his academic goals, giving examples of strategies that could be used. She testified that the school district needs trained professional development around meeting [REDACTED]’s needs within the general education classroom, estimating a full day and two one-hour meetings with teachers per month. Tr. 510-520. Ex. 25.

She emphasized the need for explicit direct special education services, stating that he did not need a small class to give him individual attention. Asked whether he lacked prerequisite skills necessary to be successful in general education to [REDACTED], [REDACTED] stated [REDACTED] was right at this stage with his learning various skills, letters, numbers, and shapes, and any number of kindergartners and even first-graders come in with just the same amount of skills and knowledge, and they didn’t yet know what [REDACTED] knows. Tr. 520-521.

She explained that her recommendation for [REDACTED] was not for an integrated co-teaching class, but a general education classroom with special education support, either from a consultant teacher or some kind of direct special education teacher coming into the classroom. Tr. 533-534. She later said she agreed with the statement that he needed support from a special education teacher, either as a consultant teacher or through an integrated co-teaching setting. Tr. 554.

In regard to the recommendation for a self-contained program, she stated that if [REDACTED] was in a class focusing only on communication behavior using his AAC device, he would be missing the rich general education content, instruction, and environment. She thought the [REDACTED] program proposed for [REDACTED] would not offer [REDACTED] access to typical peers, citing the additional stresses brought on by the pandemic and talking about the importance of him continuing in his home community. She stated that he needs access to grade level and typical peers, and would benefit from attending school with peers in his community. She also testified that supporting [REDACTED] would not be significantly disruptive to the education of other students in the classroom, as the general education teacher and special education teacher can create clear classroom management routines, and expectations for all the students. Tr. 524-532, 549-551.

[REDACTED] expressed her overall disagreement with the appropriateness of programs on the continuum of special education services beyond general education placement for students. She stated that other than for a therapeutic or medical, short-term placement, there would be nothing appropriate for a child with disabilities outside of the general education classroom. Tr. 539-541.

CONCLUSIONS OF LAW

The parent’s DPCN claimed that the district had failed to provide [REDACTED] with a FAPE during the 2021-2022 and 2022-2023 school years, citing inappropriate program and inadequate services and supports for the child. As articulated in the complaint, the parents’ primary disagreement was with the district’s refusal to accommodate the child’s needs in his local elementary school, in a general education classroom with consultant teacher support or alternatively in an ICT classroom created in the school. Ex. 1.

As noted above, the parties joined in a consent decree, so ordered by the IHO on December 1, 2022, to partially resolve claims. for a child with disbilities Ex. I.

For that reason, there will be no determination concerning the district’s compliance with FAPE for the 2021-2022 school year. Nevertheless, the string of errors and omissions committed by the district in the 2021-2022 school year, leading to the June 2022 IEP and the child’s program for the 2022-2023 school year, requires a detailed fact-specific analysis. The history of the child’s treatment by the district in the year preceding the 2022-2023 school year is relevant and essential to an understanding of the appropriateness of the district’s recommendation for the 2022-2023 school year.

I find that the district failed to meet its burden that it provided a FAPE for [REDACTED] in the 2022-2023 school year. The reasons are discussed in detail below.

An appropriate educational program begins with an IEP that includes a statement of the student’s present levels of academic achievement and functional performance. See 34 CFR §300.320(a)(1); 8 NYCRR §200.4(d)(2)(i); see also Tarlowe v. New York City Bd. Of Educ., 2008 WL 2736027 (SDNY July 3, 2008), noting that a CSE must consider, among other things, the “results of the initial evaluation or most recent evaluation” of the student, as well as the academic, developmental, and functional needs of the student. The IEP must accurately reflect the results of evaluations to identify the student's needs, establish annual goals related to those needs, and provides for the use of appropriate special education services. 34 CFR §300.320(a)(2); 34 CFR §300.320(a)(4); 8 NYCRR §200.4(d)(2)(iii); 8 NYCRR §200.4(d)(2)(v); see Application of the Board of Education, Appeal No. 14-104; Application of the New York City Department of Education, Appeal No. 13-121.

The June 10, 2022 IEP recommendation for the 2022-2023 school year that is the basis of the parent’s remaining claim was for the 8:1:1 [REDACTED] special class at [REDACTED], with occupational therapy twice a week, physical therapy twice a week, and speech three times weekly in 30-minute sessions, and a 1:1 full-time aide “to ensure his safety.” Exs. 20, 25.

As noted, the basic argument in this case has to do with whether the district’s actions have complied with providing [REDACTED] with an education in the least restrictive environment. The requirement that children have education in the least restrictive environment is well established, as are the accompanying limitations. The IDEA expressly authorizes the education of students with disabilities with non-disabled peers “to the maximum extent possible,” and court decisions from Rowley to Oberti to Endrew have emphasized the importance of an individual determination concerning a child’s specific capacity and limitations. 20 USC §1412(a)(5), Bd. of Educ. v. Rowley, 458 US 176 (1982); Oberti v. Clementon School District, 995 F.2d 1204 (3d Cir. 1993); Endrew F. v. Douglas County School District, 580 US 386, 137 S. Ct. 988 (2017).

Case law regarding inclusion requires a demonstration by the district that program and services could not be implemented within a regular education classroom with supplementary aids. Oberti, ibid.; see also L.H. v. Hamilton County Dep’t. of Educ., Case No. 1:14-CV-00126, USDC, EDTN (2016).

The decision in this case rests on the decision of the 2nd Circuit in the Newington case, which adopted a specific two-prong mainstreaming test to determine whether an IEP places a child in the last restrictive environment: (1) whether education in the regular classroom, with the use of supplemental aids and services, can be satisfactorily achieved for a given child, and (2) if not, whether the school has mainstreamed the child in school programs with nondisabled children to the maximum extent appropriate. P. v. Newington Bd. of Ed., 546 F.3d 111 (2008).

To meet the first part of that test requires consideration of several factors, including (1) whether the school district has made reasonable efforts to accommodate the child in regular classroom; (2) the educational benefits available to the child in a regular classroom, with appropriate supplementary aids and services, as compared to the benefits provided in a special education class, and (3) the potential negative effects on the education of the other students in class. Oberti, ibid.

The district argument, as presented in the hearing and in the post-hearing brief, rests largely on the district’s limited experience of the child in 2021-2022. Ex. 26. The basic district argument is that the district had sufficient information about the child at the time of the June 10, 2022 IEP to warrant its recommendation for the 8:1:1 [REDACTED] program at [REDACTED] rather than a general education program with special education support.

The evidence in this case is totally at odds with that claim. Simply put, the district did not have any information about how the child would perform in a general education class with special education support nor did it seek to obtain such information, its actions throughout the school year and in creating the June 2022 IEP amounting to almost a textbook definition of a failure to make reasonable efforts to accommodate the child in a regular classroom.

The 2021-2022 school year included a complete absence of special education teacher support in the classroom for [REDACTED]. The deficits in that year began with the September 2021 IEP meeting with only [REDACTED] and a country representative, significantly reducing the program the child had been receiving by eliminating all special education teacher support the child had been receiving in the integrated program from the [REDACTED] school district. There was no representative from the [REDACTED] district or the [REDACTED] program the child had been attending, nor was there a school psychologist or a special education teacher at the meeting, and the positive reports of his progress in expressive and receptive language noted in the [REDACTED] IEP were ignored. [REDACTED]’s testimony that [REDACTED] wanted the general education program and didn’t want the teacher support, stating that [REDACTED] didn’t request it, supported the parent’s testimony that it was never discussed at the meeting, as did the testimony of [REDACTED] and [REDACTED] that there was no special education teacher available through the country, excuses that failed to recognize the district’s responsibility and failed the student. Moreover, while the [REDACTED] IEP had stated and [REDACTED] acknowledged that [REDACTED] needed strategies for behavioral concerns, the [REDACTED] IEP stated the opposite, that the child did not need strategies to address behaviors that impeded his or others’ learning.

The district’s pattern of failure continued with [REDACTED]’s instruction in the [REDACTED] program at the elementary school from October 20, 2021 to January 5, 2022, an undisputed total of 34 days. Although the district’s argument rests in large part of its exhaustive description of behaviors exhibited by the child, the only attempt at interventions were a handful of strategies recommended by [REDACTED] and numerous trips to the principal’s office. There was unfortunately no attempt to analyze the success of any of those strategies. [REDACTED] did not perform any monitoring tasks, and there was no data taken, nor any FBA or behavioral evaluation, only anecdotal notes taken by [REDACTED]. As [REDACTED] characterized it, he wanted to first try his “bag of tricks,” although his description of interventions was limited to walking back and forth in the hallway.

As the only time [REDACTED] was in a classroom during the 2021-2022 school year, there was little evidence of anything else done for [REDACTED]. There was no information concerning his academic performance or progress in speech or communication. [REDACTED] didn’t see any plans to address his sensory needs in physical education, and didn’t know if her recommendation to [REDACTED] to modify assignments was followed. [REDACTED] said he needed more than she could provide, and [REDACTED] and [REDACTED] agreed he would have benefitted from a SEIT, but instead of action to provide that support [REDACTED] alluded to a shortage of special education teachers, echoing the excuses given by [REDACTED] and [REDACTED] in their testimony. There was no evidence of the parent counseling and training that [REDACTED] said had been provided the parent by [REDACTED] and an aide; [REDACTED] hadn’t even seen the child’s IEP.

There was no program review to see if [REDACTED] could be accommodated in the general education classroom. Despite the absence of needed special education support and continued behavioral concerns, at the second IEP meeting that school year in December 2021, there was again no psychologist nor special education teacher present at the IEP meeting, recommending an integrated 8:1:3 placement out of district. There was no explanation of why [REDACTED] was not invited to the meeting. There were no up-to-date evaluations, just the same ones that had been done over a year before in [REDACTED] when [REDACTED] was two years old. The IEP again included an explicit denial of any need for strategies for behavioral concerns, with the explanation that he was being placed in a setting with interventions geared toward addressing behaviors Similarly, there was no aide recommended with the explanation that issues would be taken care of in the classroom. With only with an IEP created for a school placement, the special education teachers who provided hour-long service at [REDACTED]’s home in the spring operated without a plan or additional information in a situation described as “less than ideal,” for a total of 16 hours.

Going into the June 2022 meeting, the district was relying on 34 days in a general education classroom without special education teacher support, as noted above, without special education teachers at any of the previous IEP meetings, and without behavioral interventions (despite that being the largest concern), and without any evaluations addressing those concerns.

The June 10, 2022 IEP meeting and the IEP was a repeat of many the flaws noted above. The June 2022, like the IEPs conducted by the [REDACTED] district before, depended on the same evaluations that had been done when the child wasn’t even 3 years old, although this IEP was for the 2022-2023 school year. Given [REDACTED]’s opinion that the evaluation had underestimated his true ability, it would be hard to rely on its accuracy for a child who would be turning 5 in October 2022.

Certainly, [REDACTED]’s [REDACTED] experience was not predictive of whether [REDACTED] could be successful with support in general education classroom. While [REDACTED]’s evaluation was conducted after the complaint in this case, I credit her opinion that the [REDACTED] experience in the previous year didn’t have the correct supports, didn’t have a certified special education teacher, and didn’t have clear behavioral strategies to allow it to be predictive – all facts known to the June 2022 IEP team. [REDACTED]’s description of [REDACTED]’s [REDACTED] experience as having had a special education teacher implemented on a consultant basis was a complete mischaracterization of the limited help [REDACTED] had been able to provide with [REDACTED] in the [REDACTED] program and quite opposite from [REDACTED]’s own description of her work.

The absence of an FBA, of any monitoring of the child’s behaviors, of no plan to address those behaviors made the idea that he had to be removed from general education primarily because of his behaviors neither reasonable nor credible. Although the district argued in its brief that the child’s behavioral difficulties were evident in the spring, citing the one-hour tutoring sessions for [REDACTED], seven hours by one teacher and nine from another, the use of teachers at home during the spring provided no information about how [REDACTED] would perform in a classroom with support. There had still been absolutely no systemic data collection. Yet despite arguing about the child’s behaviors, as before there was no recommendation for an FBA nor a BIP, nor for an assistive technology evaluation. Even more contradictory, the June 2022 IEP acknowledged the need for strategies, interventions and supports to address behaviors impeding his learning, while continuing to say that no behavioral plan was needed.

While the testimony of witnesses citing [REDACTED]’s deficits and behavioral issues lends support to the district’s argument that accommodation is not possible in the district’s general education class, the plain truth is that the possibility was never seriously considered. Even [REDACTED] and [REDACTED] thought that the child needed a special education teacher, with no credible explanation of why one was never tried. Nor was there any evidence offered there was no credible evidence offered concerning [REDACTED]’s ability to function in an ICT class or general education classroom with the support of a consultant teacher.

In fact, the recommendation for [REDACTED]’s placement in the self-contained [REDACTED] program did not seem in concert with opinions expressed by some of the district witnesses at hearing. [REDACTED] stated that [REDACTED]’ s education would be “challenging” in general education, her only explanation for not addressing the challenges that it was not a perfect world and the district couldn’t find people. I credit [REDACTED], as the only special educator who had ever seen [REDACTED] in a general education classroom, who was open to the idea that the child might be able to be successful with proper supports and that placing him in a general education program with support was “worth a try.” To be clear, the district’s failure was in making its recommendation based on wrong information, inadequate information, and no information. Information about the [REDACTED] program, however beneficial, was not sufficient on its face and could not overcome the complete absence of reasonable efforts to accommodate the child with any support at all when he was in the general education classroom in the prior year. The district’s failure to make reasonable efforts to assess [REDACTED]’s needs is reflected in its history. I note that the district never considered the possibility of placing [REDACTED] in a general education program with support, rejecting it outright rather than making even an attempt at seriously providing support for the child.

In regard to educational benefits that would be available to the child in a regular classroom, with appropriate supplementary aids and services, as compared to the benefits provided in a special education class, the testimony of all witnesses suggested the importance of peer models for [REDACTED] – part of the reason the district first tried to send him to an integrated classroom program in December 2021. I note [REDACTED]’s testimony about research indicating positive student outcomes from models and peers, as well as [REDACTED]’s opinion as to the importance of peers, and [REDACTED]’s as to the child’s need for positive models. As for the potential negative effects on the education of the other students in class, I give little credence to [REDACTED]’s testimony that he would not be significantly disruptive to his peers given that she had never observed the child. There was no other evidence offered in that regard.

As to the second part of the Newington test, whether the district has included the child in school programs with nondisabled children to the maximum extent appropriate, the answer is clearly that the district has not done so. The [REDACTED] program at [REDACTED] recommended for [REDACTED] was completely self-contained, without any access to nondisabled peers or mainstreaming opportunities. As noted above, the district failed to provide evidence to warrant the child’s exclusion from a general education program with special education teacher support, compelling the conclusion that the district has not mainstreamed the child in school programs with nondisabled children to the maximum extent appropriate.

For all the reasons above, I find that the district failed to provide [REDACTED] with a FAPE for the 2022-2023 school year.

In fashioning relief in this case, I note that in the DPCN and brief, the parent asked for the CSE to reconvene and place [REDACTED] in a general education classroom with supports, services, modifications, and accommodations identified by [REDACTED], including support from a special education teacher (via an ICT or consultant teacher model), and a well-trained 1:1 paraprofessional. It also requested an order for the district to obtain extensive consultation and professional development from a consultant experienced in support for students with disabilities in general education. A footnote in the brief offers a schedule for a consultant proposed by [REDACTED] for consultation. Exs. 1, J.

The district’s brief argues that even if the ruling is that [REDACTED] was denied a FAPE in the 2022-2023 school year, it would not be an appropriate result to place him in a setting where he has been “unable to meaningfully participate due to the stress of the environment.” Ex. 26. Given the extensive findings outlined above, I disagree that any such conclusion can be made from the 34 days the child was in a classroom without appropriate support. In regard to the program, the options for a general education program with special education teacher support are clear: there is an ICT with a special education teacher or a general education program with a consultant special education teacher. 8 NYCRR §§200.6(d), (g).

In regard to the additional support, while the evidence in this case compels an order for special education teacher support in a general education environment, the district’s concerns suggest that at least some of the consultation and training suggested by the parent be added to the child’s program. I discount the reference in the district’s brief to Unatego being a “small rural district with limited resources and a small budget” as being irrelevant to the decision in this case.

In this case, the addition of an inclusion consultant to the order is based on the importance of establishing structure and consistency for [REDACTED], as was discussed in the testimony of witnesses about the benefits of the [REDACTED] program. Both [REDACTED] and [REDACTED] referenced the possibility of development of a program using [REDACTED] methodologies and strategies in the general education or integrated classroom. I note once again [REDACTED]’s testimony, who in expressing support for trying a general education placement had talked of providing [REDACTED] with special education teacher support and working in collaboration with an inclusion consultant. While [REDACTED]’s general recommendation for inclusion must be weighed while taking into account her all-out disregard for the continuum set forth in law and regulation for children with disabilities, I credit her description of the support that could be provided by an inclusive education consultant around challenging behavior, communication, and academic modifications for [REDACTED] in a general education program.

In ordering the district to hire an inclusion consultant, I am not prescribing the term or a schedule as suggested by [REDACTED]. Nor am I ordering training of the para. It’s my expectation that the consultant will review and report to the district and the CSE on supports and training as needed.

In considering this case, I also noted that evaluations would need to be conducted so support for [REDACTED] could be effective. In that regard I quote from the district’s brief:

The District has agreed to evaluate [REDACTED]’s functional communication issues and the potential for a need of an assistive technology device, as well as an updated evaluation for speech. Pursuant to 8 NYCRR 200.4, a functional behavioral assessment could be conducted while the student is in school, instead of a home, to determine whether [REDACTED] requires a behavior intervention plan. Ex. 26.

The remedies were described as potential remedies targeted to build a transition plan if the CSE recommends a general education setting at some undetermined future time. As the child shall be entering general education pursuant to his decision, I expect these will be done without the need for an order in this case.

One final word: Also in the district’s brief, while arguing that failure to provide parent training does not warrant a denial of FAPE (which was not a ruling in this decision), it further stated that “it would be appropriate to add such training to the IEP as a remedy for [REDACTED]” Ex. 26. Accordingly, the order will include parent counseling and training to be added to the IEP. 8 NYCRR §§200.1(kk), 200.6(d)(2)(v)5).

(Order on following page)

ORDER

• • The [REDACTED] school district shall convene a CSE to provide appropriate services and placement for [REDACTED]:
• • [REDACTED] shall be placed in a general education setting with special education teacher support, of either::
• • a general education class, with a consultant special education teacher, or
• • an integrated classroom setting, with a special education teacher.
• • The IEP shall include a 1:1 paraprofessional for [REDACTED] full-time.
• • The IEP shall include parent counseling and training for [REDACTED]’s parent.
• • The district shall retain a qualified consultant on inclusion, with experience at the elementary school level, to advise and report to the district on inclusion for [REDACTED] in general education at the elementary school level.
• • The consultant shall be charged with review of [REDACTED]’s educational record and evaluations, identification of supplementary aids, supports, modifications, and accommodations to allow him to benefit from inclusion in the general education program, training for staff on strategies and methodologies in the general education classroom, and making written or oral recommendations in accordance with the results of the review.
• • The CSE shall be convened to consider recommendations of the consultant, and the results entered on the child’s IEP.
• • The consultant shall be retained for a reasonable time necessary to complete the review, and may be retained to assist in developing a plan to implement recommendations or other follow-up, including training for staff as may be needed.

IT IS SO ORDERED.

Dated: January 26, 2023

_____________________________

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.

WITNESS APPEARANCES

October 6, 2022

[REDACTED], Director of Special Programs, [REDACTED] CSD

[REDACTED], Special education teacher, [REDACTED] CSD

[REDACTED], School psychologist, [REDACTED] CSD

October 24, 2022

[REDACTED], Principal, [REDACTED] Elementary School, [REDACTED] CSD

[REDACTED], [REDACTED] teacher, [REDACTED] CSD

[REDACTED], Special education teacher, [REDACTED] CSD

[REDACTED], Special education teacher, [REDACTED] CSD

October 25, 2022

[REDACTED], Interim Director, [REDACTED]

[REDACTED], [REDACTED]’s grandparent

[REDACTED], [REDACTED]’s parent

November 7, 2022

[REDACTED] [REDACTED], Associate Professor, [REDACTED] University

EXHIBITS

DISTRICT EXHIBITS

1 Due Process Complaint Notice, 6/14/2022, 7 pages

2 Response to Request for Due Process, 6/24/2022, 3 pages

3 Summary, [REDACTED], undated, 1 page

4 Medical Records, [REDACTED] 4/14/2020, 5 pages

5 Medical Records, [REDACTED] 7/15/2020, 5 pages

6 Speech and Language Evaluation, [REDACTED], 8/13/2020, 5 pages

7 [REDACTED] Student Evaluation Summary Report, [REDACTED], 8/27/2020, 15 pages

8 Occupational Therapy Evaluation, [REDACTED], 8/27/2020, 6 pages

9 Student Information Summary and IEP, 2/26/2021, 19 pages

10 Progress Notes, [REDACTED] 3/10/2021 – 8/30/2021, 7 pages

11 Student Information Summary and IEP, [REDACTED] 9/28/2021, 16 pages

12 Student Information Summary and IEP, [REDACTED] 12/20/2021, 14 pages

13 Occupational Therapy Annual Progress Summary 2021-2022 and Goals 2022-2023, [REDACTED] 2021-2022, 2 pages

14 Letter [REDACTED], 1/24/2022 and Release [REDACTED] 2/2/2022, 3 pages

15 Agencies contacted by District, 3/21/2022, 4 pages

16 Physical Therapy Annual Report, [REDACTED], 5/31/2022, 3 pages

17 SEIT Annual Summary, [REDACTED], 6/9/2022, 3 pages

18 SEIT Annual Summary [REDACTED], 6/9/2022, 3 pages

19 CPSE-CSE Meeting Minutes 6/20/2022, 4 pages

20 Student Information Summary and IEP, [REDACTED] 6/10/2022, 14 pages

21 Prior Written Notice and forms, [REDACTED] 8/9/2022, 14 pages

22 Summer Speech Notes – [REDACTED] 7/12/2022-8/16/2022, 3 pages

23 Occupational Therapy Summer Progress, [REDACTED], 8/22/2022, 2 pages

24 Notes, [REDACTED], undated, 19 pages

25 Student Information Summary and IEP, [REDACTED] 6/10/2022, 15 pages

26 Memorandum of Law, [REDACTED] CSD, 12/12/22, 17 pages

PARENT EXHIBITS

A [Observation Summary, [REDACTED] 8/25/2020, 1 page

B IEP, [REDACTED], 11/30/20, 14 pages

C IEP, [REDACTED], 12/11/20, 16 pages

D Meeting Minutes Report, [REDACTED] 11/02/2020-03/31/2021, 12 pages

E Transdisciplinary Annual Review Report, [REDACTED] 2/9/2021, 13 pages

F Independent Education Evaluation, [[REDACTED], 10/9/22, 9 pages

G Curriculum Vitae, [REDACTED], undated, 29 pages

H Video Presentation, [REDACTED]

I Consent Decree, so ordered, [REDACTED] 12/1/22, 1 page

J Petitioner’s Post-Hearing Memorandum of Law, [REDACTED] 12/12/22, 33 pages

Footnotes

[1] The first 5 pages of [REDACTED]’s notes were typewritten; the remaining 14 pages of the exhibit containing her notes were almost entirely illegible. Ex. 24.