New York City Department of Education, Impartial Hearing Decision

CASE NUMBER:574937 – NYC:227725

REDACTED

FINDINGS OF FACT & DECISION

Case No.: 227725

Student’s Name: [Redacted]

(referred to as “Student”)

Date of Birth: [Redacted]

District: [Redacted]

Hearing Request by: [Redacted]

(referred to as “Parent”)

School: [Redacted]

(referred to as “Private School”)

Date of Complaint: July 5, 2022

Hearing Dates: January 12, 2023

Actual Record Close Date: February 2, 2023

Decision Date: February 16, 2023

Hearing Officer: Vanessa M. Gronbach, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 12, 2023

For the Student:

[Redacted], Esq., Parent Attorney

[Redacted], Parent

[Redacted], School Principal

[Redacted], Special Education Teacher

[Redacted], Speech Pathologist

For the Department of Education:

[Redacted], Esq., District Representative

ISSUES

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) through the Parents’ Due Process Complaint (“DPC”) filed on or about July 11, 2022, regarding the 2022/23 school year (P-Ex. A)^[1]. The DPC alleged that the District denied the Student a Free Appropriate Public Education (“FAPE”) as required by the Individuals with Disabilities Education Act (“IDEA”) by not providing an appropriate program and placement for the 2022/23 school year (P-Ex. A). The Parent has requested tuition reimbursement / direct payment for their unilateral placement of the Student at the Private School the Student attended during the 2022/23 school year, as well as after school speech and SEIT services (P-Ex. A).

PROCEDURAL HISTORY

The undersigned was appointed as hearing officer in this matter on July 11, 2022. A prehearing conference was held on September 15, 2022, to discuss the issues in the case. A hearing on the merits began on January 12, 2023, and concluded in one day (See, Transcripts).^[2] The District did not defend the allegations in the complaint but did enter one exhibit into the record. The Parent presented exhibits^[3] and four witnesses by affidavit. The record closed on February 1, 2023. There were approximately five extensions of the timelines granted by this Hearing Officer to allow the District to investigate the matter and accommodate witnesses.

FINDINGS OF FACT

The Student is an [Redacted] year old student, who attends the Private School during the 2022/23 school year (P-Ex. A; L). The Student is diagnosed with Autism, Childhood Apraxia of Speech and is globally delayed (P-Ex. L-1). The Student was described as having little language and is delayed in all aspects of learning and social development (P-Ex. L-1). The Student is slowly developing skills, but learning is very slow and he requires a significant amount of repetition (P-Ex. L-1). The Student is very rigid and has a hard time carrying over skills in different environments (P-Ex. L-1). The Student has received special services since Early Intervention, including through the CPSE where he received an extensive program of 1:1 ABA/SEIT services (approximately 30 hours per week), BCBA support, and related services of speech and occupational therapy (“OT”) (P-Ex. L-1).

On April 13, 2022, the District’s Committee on Special Education (“CSE”) convened an IEP meeting for the 2022/23 school year (D-Ex. 1; P-Ex. L-1). The CSE recommended a 6:1:1 special class in a specialized school, with related services of OT, physical therapy (“PT”) and speech, for a 12-month school year (D-Ex. 1). The Parent and educators working with the Student informed the CSE that the Student was receiving a 1:1 ABA/Floortime program and continued to require a program that could provide that level of support (P-Ex. L-1). The Parent did not believe the 6:1:1 program could provide the level of support he required (P-Ex. L-2).

The Parent testified by affidavit that when she received the IEP, it failed to include the behavioral intervention plan (“BIP”) indicated in the IEP, and the District failed to provide a copy to the Parent despite her request (D-Ex. 1; P-Ex. L-2). The IEP also failed to recommend the Assistive Technology device the Student required for communicating, despite noting that the Student uses an AAC device; and failed to recommend Prompt therapy to address his verbal apraxia (D-Ex. 1; P-Ex. L-2).

The Parent further testified that the Student also continued to require home based services to support generalization of skills (P-Ex. L-2). The Student is exceptionally rigid and has extreme difficulty generalizing his skills between school and the home, specifically with daily living skills and his AAC device (P-Ex. L-2). At the time of the meeting the Student was receiving 10 hours per week of ABA/SEIT services at home and Speech services, which were critical to allowing for generalization and support his ability to make continued progress in the classroom (P-Ex. L-2).

After the meeting the Parent received a recommendation for a public-school placement (P-Ex. L-2). The Parent visited the recommended placement and learned that the program could not provide the 1:1 and ABA teaching that the Student required on a consistent basis and only had a BCBA on site once a week (P-Ex. L-2). It was also explained that the Student would participate in larger groups than six, for lunch and recess which would be overstimulating for him (P-Ex. L-3). The placement was only for a 10-month program (P-Ex. L-2).

In June 2022, the Parent advised the CSE of her concerns, but never received a response from the CSE (P-Ex. B; L-3). The Parent unilaterally placed the Student back at the private School for the 12-month 2022-23 school year, where she had attended since 2020/21; with his 10 hours of 1:1 after school/home based SEIT/ABA services and speech therapy 3x45 minutes per week (P-Ex. L-1; L-3). The Parent is fully liable for the contract cost of tuition but is unable to pay the tuition or after school services, based on their finances (P-Ex. D; E; G; L-3).

CONCLUSIONS OF LAW

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

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

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

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

Here, the District did not present any witnesses to describe the recommended program or how the program was reasonably calculated to enable the Student to make progress. The District did not present any evidence regarding the recommended placement or explain why only a 10-month program was recommended, despite the IEP recommending a 12-month program. The District did not meet its burden in demonstrating that FAPE was provided to the Student for the 2022/23 school year. Based on the evidence in the record, I find that the District did not provide the Student with FAPE for the 2022/23 school year.

PARENT’S BURDEN

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

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

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

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

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

Finding that the District did not provide FAPE to the student during the 2022/23 school year, the burden now shifts to the Parent to prove the appropriateness of the Private School.

After reviewing the testimony and evidence provided, I find that they have met that burden. I find that the Private School provided the Student with individualized instruction in a small setting, specially designed to meet the Student’s academic, social, emotional and behavioral needs.

The Principal at the Private School testified regarding the school and the student (P-Ex. I). As Principal she is responsible for the day-to-day operations at the school, staffing, curriculum meetings, team meetings, outreach in the community, outreach for families, scheduling home visits, coordinating parent involvement, coordinating trainings, and the day-to-day supervision in the classrooms (P-Ex. I-2). The Principal testified that she had experience working with children with Autism Spectrum Disorder (“ASD”), and was familiar with, and trained in, the research-based methodologies used including Applied Behavioral Analysis (“ABA”), Developmental Individual Relationship-based therapy (“DIR”)/Floortime, the TEACCH model, the Denver model, the SCERTS Model, Response to Intervention, PROMPT training, and Social Thinking (P-Ex. I-2).

The Private School is a small, 12-month specialized school for students with autism or developmental disabilities, for students ages five to 21 (P-Ex. I-2). Programming is individualized to meet each student’s needs and all staff is trained to work specifically with children on the autism spectrum (P-Ex. I-2). Their mission is to help children and their families with Autism Spectrum Disorder reach their fullest social, emotional, physical, and academic potential (P-Ex. I-2).

During this 2022/23 school year, the Private School has 45 students enrolled in the school (P-Ex. I-2). Students are grouped by age, functioning level, and opportunities for peer interaction and appropriate socialization (P-Ex. I-2). The Private School uses primarily, ABA and DIR methodologies in the classroom with students, because they are both research-driven and proven to be effective for the education of students on the autism spectrum (P-Ex. I-2). They also offer physical therapy (“PT”), occupational therapy (“OT”), speech therapy, and mental health services (such as music therapy) (P-Ex. I-2). They employ licensed and certified special education teachers; licensed and certified related service providers; an assistive technology specialist; teacher assistants; classroom instructors; licensed and certified mental health professionals; a full-time nurse and administrative staff (P-Ex. I-2-3). Staff receive an intensive five-day training at the end of every August; they provide weekly trainings on a variety of topics throughout the year based on the current environment and teachings for students on the spectrum; they organize specialists to come in and do trainings from outside; and they send staff to trainings out in the community so that they can utilize a wide-range of teaching strategies to meet each of their students’ needs (P-Ex. I-3).

Classroom teachers are supervised by the Board-Certified Behavioral Analyst (“BCBA”) and related service providers are supervised by the head of each of their departments (P-Ex. I-3). Teacher assistants and classroom instructors are supervised by the teachers in the classroom, and the Principal supervises all teaching instruction (P-Ex. I-3). Staff frequently collaborate with each other through team meetings and informal meetings to discuss a student’s individual plan (P-Ex. I-3).

In terms of curriculum, each student has their own individual program book, with different curriculum pieces relative to their specific strengths and needs (P-Ex. I-3). These include, ABA programs, reading programs, math programs, Floortime goals, and visual cognitive motor goals—all individualized and based on their specific needs within the student’s program book (P-Ex. I-3).

The Private School is in frequent communication with parents through individual daily communications, parent meetings, and parent conferences throughout the year (P-Ex. I-3). The parent communication is very individualized and differs for each parent (P-Ex. I-3).

In monitoring a student’s progress, they issue a progress report three times a year, and each individual department does their own assessments of the student (P-Ex. I-3). Teachers and instructors in the classroom are constantly taking data based on the individual programs that were created in each student’s program book (P-Ex. I-3-4).

The Principal is familiar with the Student and described him as presenting with global developmental delays in the main areas of development: motor, social-emotional, cognitive, regulation, and language-communication delays (P-Ex. I-4). The Student is minimally verbal and is working towards consistently utilizing use 1–3-word verbal utterances (P-Ex. I-4). He is self-directed and very rigid, he is unable to handle the changes in his routine, and has significant sensory processing needs and will easily become dysregulated (P-Ex. I-4). Despite his struggles, the Student tries very hard and when in his routine, will consistently attend to his 1:1 sessions (P-Ex. I-4).

During the 2022/23 school year, the Student was placed in a 7:1:1:4 classroom ratio (1 lead teacher, 1 teaching assistant and 4 instructors) (P-Ex. I-4). In the classroom, the BCBA works with the classroom teacher, teacher’s assistant and instructors to monitor curriculum and the Student’s specific program (P-Ex. I-5). The 1:1 class ratio is necessary for the Student because he requires this high level of intervention to facilitate his learning (P-Ex. I-5). The Student is not yet ready to learn in a less restrictive ratio (P-Ex. I-5). In order to obtain new skills, he requires 1:1 learning instruction, even when targeting peer interactions in a small group (P-Ex. I-5). To facilitate generalization of materials, the Student works with different adults throughout the day to support him in his long-term functioning (P-Ex. I-5). The Student needs to respond to different people, especially within individual programs, so he can really master a skill in all contexts (P-Ex. I-5).

The Student’s program consists of both the ABA and DIR methodologies (P-Ex. I-5). The Student has responded very well to both of these research-based approaches to learning (P-Ex. I-5). He requires the core ABA component of skills being broken down to smallest elements and then built up (P-Ex. I-5). DIR/Floortime methods have been used to address his social development, focusing on developing conversation, establishing eye contact and increasing social interactions (P-Ex. I-5). Modifications and adjustments are made as needed and at a quick pace (P-Ex. I-5). The Student’s individual goals are developed by the classroom teacher and the BCBA and his individual related service goals are developed by his specific related service providers in conjunction with the heads of those departments (P-Ex. I-5).

The Student is provided with a specific program book; various manipulatives; a workstation, and the adult runs each one of his individual programs, taking data during the entire time (P-Ex. I-6). To help support the Student’s attention and distracted tendencies, they have students set up on one side of the classroom, another group on the opposite end of the classroom, room dividers are used frequently, and some students are taken out to work areas if the classroom environment is too distracting that day for them (P-Ex. I-6).

In math, the Student is utilizing the Touch Math program and has made progress in his math goals (P-Ex. I-6). In reading, the Student has been working on sound-symbol correspondence, developing sight word vocabulary, utilizing his listening comprehension skills, and working on writing and typing skills (P-Ex. I-6). During academic periods significant emphasis is placed on developing the Student’s language skills (P-Ex. I-6). The Student also utilizes an AAC device to augment his communication (P-Ex. I-6). He uses his device for organization and visual support, and it also slows him down and gives him time to process (P-Ex. I-6). The Principal noted that the AAC device is not an alternative device, but rather is to augment his communication, as it is also a language-building tool that allows him to create phrases, work on his language-building skills, and, ultimately, help him with reading (P-Ex. I-6).

The Private School also provides a significant amount of regulation, sensory breaks, movement breaks and behavioral intervention to help the Student focus and complete his tasks during his programs (P-Ex. I-7). Specifically, the Student has an individualized sensory diet which helps to regulate is body and make him available for learning (P-Ex. I-7). The Student struggles with sensory regulations that greatly impact his ability to learn, and his sensory diet provides him with multiple breaks throughout the day where he is able to go to the sensory gym or take a sensory break to reset his body (P-Ex. I-7). This time has been critical for helping to keep him attentive and engaged in his 1:1 learning sessions (P-Ex. I-7).

The Student also has an individualized behavior plan that targets his non-compliant behaviors which are often related to his rigidity and difficulty with transitions (P-Ex. I-7-8). They have been working his self-stimulatory behaviors; and his difficulties with “mouthing,” where he will put objects in his mouth (P-Ex. I-8). Using a clear a schedule, reinforcement and focused communication, over the course of the year the Student’s behavior has been improving (P-Ex. I-8).

The Student receives speech therapy (3x45), occupational therapy (2x45:1), physical therapy (2x45:) and music therapy (P-Ex. I-8). In speech, he is working on his receptive and expressive language skills by working towards increasing verbalizations and use of his voice output device (P-Ex. I-8). In OT, the Student is working on handwriting, gross motor skills, fine motor skills, sensory processing, and ability to follow directions (P-Ex. I-8). In PT, he is working on improving coordination, balance, and core strength (P-Ex. I-8). The Student also receives music therapy as a form of counseling, where they use the creative arts medium to work with him on initiation, decreasing anxiety, self-expression, and communication (P-Ex. I-8). The Student benefits from music therapy as he has improved his ability to interact with the therapist and peers (P-Ex. I-8). According to the Principal, the Student requires a 12-month school year program because he substantially regresses both academically and, in his behaviors, over long breaks (P-Ex. I-8).

Staff at the Private School also work closely with the Student’s home based/afterschool special education providers (P-Ex. I-9). The Student has such extreme rigidity that it is very important to have consistent carryover of skills between the home and school settings (P-Ex. I-9). This is important to help the Student learn that academic and language work done at school can be done at home and ADL skills used at home can be used in school (P-Ex. I-9). Specifically, he has been focusing on carryover in language skills and the use of his ACC device at home so that he can understand that the device can assist him in different environments and that he can communicate and share his needs both at home and in school (P-Ex. I-9).

With respect to the student’s progress at the Private Schools, a finding of progress is not required for a determination that a student's unilateral placement is adequate, but it is a relevant factor to be considered (Gagliardo, 489 F.3d at 115, citing Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21, 26-27 [1st Cir. 2002]). However, here the Student has made progress.

According to the Principal, the Student has made progress so far this school year, in all domains, including reading, math, regulation, attention, communication, independence, and social-emotional growth (P-Ex. I-9). Data is collected to ensure and monitor that the program is working, and the Student is making progress (P-Ex. I-5). The Student has made progress in his language development, he has shown improvement in his verbal output by creating longer utterances with more specific content, and his ability to initiate verbal communication has also increased (P-Ex. I-7). With Floortime programming the Student has improved in his engagement by using his eye contact to signal communication and keep an interaction going and he is beginning to open of more and communicate with less cues (P-Ex. I-7). He also made progress in his speech, remaining regulated, and in his balance and coordination (P-Ex. I-8).

The Parent has observed progress during the 2022/23 school year, specifically in his communication skills, his ability to attend, and his early academic skills have grown (P-Ex. L-3). With the support of his afterschool program, the Student has also begun to translate skills across settings (P-Ex. L-3). Based on all of the above, I find that the Private School was an appropriate placement for the Student for the 2022/23 school year.

The SEIT/ABA provider testified by affidavit regarding her work with children in the home using ABA methodology and provided the parent consultation/training aimed at supporting skills acquisition across settings (P-Ex. K-1). The SEIT provider has known and worked with the Student since 2018, providing services such as speech and language therapy, feeding therapy, and parent consultation on interventions for maladaptive and problem behaviors (P-Ex. K-1). In September 2022, she began providing the Student with home based 1:1 SEIT services (P-Ex. K-1). The SEIT provider took over from the previous provider who worked with the Student during the summer of July-Aug 2022 (P-Ex. K-1). In preparation for the transition, she coordinated directly with the previous provider to ensure that the Student had continuity of care (P-Ex. K-1).

The SEIT provider described the Student as having significant delays in all aspects of learning (P-Ex. K-1). The Student requires additional supports across domains including cognition, communication, social/emotional and adaptive daily living skills (ADLS) (P-Ex. K-1). The Student is extremely rigid and has a very hard time generalizing skills learned across environments and requires additional support to help transfer/generalize skills across multiple settings (P-Ex. K-1). Due to his severe disabilities and limited communication skills, the Student gets frustrated when he is unable to communicate his needs or wants which causes him to become dysregulated and demonstrate physical aggression toward himself and others (P-Ex. K-1-2). The Student requires additional supports at home to develop effective communication skills and increase tolerance of denial to function without maladaptive behaviors across care providers and settings (P-Ex. K-2).

The SEIT provider testified that the focus of her work with the Student has been to help him develop functional language and improve his ability to use his AAC device (P-Ex. K-2). She has coordinated with the Student’s school speech therapist to implement the AAC communication strategies in the home environment (P-Ex. K-2). She has also provided additional parent training and support to the parent to help implement the use of the communication device at home to promote communication skills, particularly to alleviate behavioral difficulties that result due to decreased ability to communicate his needs and wants (P-Ex. K-2).

Although the Student has learned to recognize numerous written words (more than 60) and carrier phrases, he does not use this language in a functional manner (P-Ex. K-2). The Student continues to have difficulty independently initiating verbal communication using these words/phrases (P-Ex. K-2). The Student has made progress in communication by demonstrating emerging competence in using the AAC device to produce language in structured environments (P-Ex. K-2). The Student is slowly building competence in navigating the device, with the goal of independent use in the natural environment (P-Ex. K-2).

Given the Student’s level of delay, there is a need for consistent collaboration and a team approach to ensure carry over of targets and skills across environments (P-Ex. K-2). The Student needs to be taught skills directly and then have the skills reinforced across settings with constant repetition (P-Ex. K-2). In terms of his communication device, the Student needs support in the home to practice with his device in a more natural environment and then to be able to transfer these skills back into the school setting (P-Ex. K-2).

The licensed and certified Speech-Language Pathologist (“SLP”) testified regarding the services she provided the Student in the home (P-Ex. J). The SLP has been providing the Student with speech services since 2018 (P-Ex. J-2). During the 2022/23 school year, the SLP has provided the Student with speech 3x45 per week (P-Ex. J-2). Due to his diagnosis of Autism and childhood apraxia of speech (“CAS”), the Student has limited speech and very impaired communication (P-Ex. J-2). The Student is also very rigid and resistant to all new activities (P-Ex. J-2).

In order to support his diagnosis of CAS, the Student requires the support of a CAS specialist trained and experienced in using evidence-based methodologies for remediation, such as PROMPT, DTTC, ReST, and ABA (P-Ex. J-2). The SLP testified that afterschool/home-based speech services are a critical part of his program, in addition to school-based speech (P-Ex. J-2). The Student has a very hard time generalizing skills and using a skill learned in one setting in a new place, therefore, it is critical that the Student be taught and come to understand that communication skills have to be used in all environments (P-Ex. J-2). For example, he can’t just learn to expand his sentences at home, or at school, or to improve his eye contact and say hello/good-bye in just one setting, there needs to be repeated exposure of these skills across settings in order for him to internalize the skills (P-Ex. J-2). The SLP worked with the Student to address his delays in his communication skills including receptive, expressive and pragmatic language (including the use of his AAC device), as well as speech production (P-Ex. J-2).

Communication goals focused on improving the Student’s expressive language skills (P-Ex. J-2). The Student has made significant progress; however he has not yet generalized an understanding of the activities to outside of the picture and the SLP will continue to target this skill across settings to help generalize them both at home and school (P-Ex. J-2). She will also continue to work with the Student and his AAC device to help him expand his ability to communicate and make his needs known (P-Ex. J-2). Due to his rigidity, the Student is very resistant to generalizing the use of his AAC (P-Ex. J-2). The SLP will also continue to target two-step directions, pragmatic language delays, greetings, maintaining eye contact, and responding to adults and peers across different settings (P-Ex. J-3).

The SLP works with the Student on speech production and motor planning, by using PROMPT (Prompts for Restructuring Oral Muscular Phonetic Targets) and DTTC (Dynamic Temporal and Tactile Cueing) methodologies (P-Ex. J-3). Both are evidence-based approaches to treating apraxia of speech (P-Ex. J-3). PROMPT provides the tactile-kinesthetic component necessary to increase proprioceptive feedback and, hence, child’s awareness of what is of the positions and transitions of his articulators during speech movement (P-Ex. J-3). With PROMPT, the Student is able to slow his rate of speech down, smoothly move across planes of movement (horizontal-vertical-anterior-posterior) showing an increase in intelligibility during structured activities (P-Ex. J-3). DTTC employs principles of motor learning and a cueing hierarchy aiming to lay down new neural pathways, reduce his dependence on prompting, and generalize the skills to longer utterances and/or spontaneous conversational speech (P-Ex. J-3). With these supports, the Student has improved in his length of utterance and his phrases have become more intelligible (P-Ex. J-3). He has made progress with the 1:1 home based/afterschool speech that he has received for during the 2022/23 school year (P-Ex. J-3). This support helped to give him the tools necessary to learn in the classroom and to generalize skills learned across settings (P-Ex. J-3). The Student is an extremely delayed student and the speech services have been crucial to his ability to further develop his speech skills across settings and continue to develop his communication skills (P-Ex. J-3).

EQUITABLE CONSIDERATIONS

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

DECISION

Based on a review of the record and the facts mentioned above, I find that the District failed to provide the Student FAPE during the 2022/23 school year. I further find that the Parent’s unilateral placement at the Private School was appropriate. I further find that the Student required the afterschool services of SEIT/ABA and Speech in order to generalize his skills between the school and the home. I have considered the Parent’s other requests for relief in the Due Process Complaint, and they have been denied for lack of evidence in the record.

ORDER

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

• • ORDER THAT, the District shall reimburse the Parent and/or directly pay the Private School for all tuition and fees for the Student’s unilateral placement at the Private Schools during the 2022/23 school year;
• • ORDER THAT, the District shall reimburse the Parent and/or directly pay the service provider for the 10 hours of SEIT/ABA per week for the 12-month 2022/23 school year, at a rate not to exceed $165.00/hour;
• • ORDER THAT, the District shall reimburse the Parent and/or directly pay the service provider for the 3x45 minutes per week of Speech Language Therapy services for the 12-month 2022/23 school year, at a rate not to exceed $175.00/hour.

SO ORDERED

DATED: February 16, 2023

Vanessa M. Gronbach

Vanessa M. Gronbach, Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

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

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

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

DISTRICT EVIDENCE

Ex. Description Date Page

1 IEP 4/13/22 28

PARENT EVIDENCE

Ex.

Date

Name of Document

# of Pages

A

7/5/22

DPC

4

B 6/17/22 Parent letter 3

C 11/9/22 Pendency agreement 2

D 22-23 Contract 3

E 10/28/22 Affidavit of payment 1

F 22-23 Schedule 1

G 2019 1040 form 2

H 11/2022 Progress reports 10

I 1/4/23 School testimony affidavit 9

J 1/4/23 Speech provider testimony affidavit 4

K 1/4/23 SEIT testimony affidavit 2

L 1/10/23 Parent testimony affidavit 2

M

11/7/17

Neuropsychological evaluation

12

Footnotes

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

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

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