New York City Department of Education, Impartial Hearing Decision

CASE NUMBER:576202 – NYC:228908

REDACTED

FINDINGS OF FACT & DECISION

Case No.: 228908

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 6, 2022

Hearing Dates: December 14, 2022

January 18, 2023

Actual Record Close Date: February 4, 2023

Decision Date: February 18, 2023

Hearing Officer: Vanessa M. Gronbach, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

DECEMBER 14, 2022

For the Student:

[Redacted], Esq, Parent Attorney

[Redacted], Esq., Parent Attorney

For the Department of Education:

[Redacted], Esq., District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

JANUARY 18, 2023

For the Student:

[Redacted], Esq, Parent Attorney

[Redacted], Parent Student

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 6, 2022, regarding the 2022/23 school year (P-Ex. A) ^[1]. The Parent then filed a second complaint on December 12, 2022 (P- Ex. V). The DPCs 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 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 home-based ABA services; Special transportation; and reimbursement for private transportation provided in September 2022 (P-Ex. A; V).

PROCEDURAL HISTORY

The undersigned was appointed as hearing officer in this matter on July 19, 2022. A prehearing conference was held on September 15, 2022, to discuss the issues in the case. A hearing on the merits was scheduled to begin on December 14, 2022, but adjourned to consolidate the DPCs, in the interest of judicial economy. The hearing continued on January 18, 2023, and concluded that day (See, Transcripts).^[2] The District did not defend the allegations in the complaint. The Parent presented exhibits^[3] and three witnesses by affidavit. The record closed on February 4, 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 a [Redacted] year old student enrolled at the Private School for the 2022/23 school year (P-Ex. R). The Student is diagnosed with Autism Spectrum Disorder with accompanying intellectual and language impairments (P-Ex. R-1). The Student is classified with Autism (P-Ex. R-1). The Student was described as having a long history of severe behavior difficulties in the classroom, at home, and in the community, including aggressive behaviors, self-injurious behaviors, screaming, property destruction, and elopement (P-Ex. R-1). These behaviors pose risks of injury to himself and others and have made it very difficult for him to learn and engage in appropriate interactions with other people (P-Ex. R-1). The Student also has severe deficits in the areas of speech and language, and delays with fine/gross motor and sensory and self-care skills (P-Ex. R-1).

The Parent testified by affidavit that she had him evaluated due to concerns regarding the Student’s ongoing learning and behavioral difficulties (P-Ex. R-1). A neuropsychological evaluation was conducted in June/July 2020 (P-Ex. B; R-1). The Neuropsychological evaluation recommended a 12-month, full-time self-contained special education classroom with a small student to teacher ratio in a full-time intensive ABA program, with direct 1:1 ABA (P-Ex. B; R1). An augmentative alternative communication (AAC) device was also recommended to address his communication deficits; individual speech therapy 5x30 minutes per week; OT 4x30 minutes per week; parent training; and BCBA supervision (P-Ex. B; R-2). The evaluation was provided to the District (P-Ex. R-2).

In October/November 2020, the Student had an assistive technology evaluation completed that recommended an AAC device for the Student to adequately access the curriculum (P-Ex. D; R-2). Specifically, a 10.2-inch Apple iPad which includes the Proloquo2go application (P-Ex. R-2). The AT evaluation was also provided the District (P-Ex. R-2).

The CSE held an IEP meeting for the Student on January 5, 2022, to make recommendations for the second half of the 2021/22 school year and part of the 2022/2023 school year (P-Ex. R-2). The Parent and Private School staff participated in the IEP meeting (P-Ex. R-2-3; S-5). The CSE recommended a 6:1:1 program and refused to recommend a 1:1 ABA program (P-Ex. R-3). The CSE did not discuss how the Student’s individual needs would be addressed by a less supportive 6:1:1 program (P-Ex. R-3). The District also did not develop a Behavior Intervention Plan (“BIP”) for the Student despite his severe problem behaviors and failed to consider his documented needs for extended-day/home-based ABA services (P-Ex. R-3). In March 2022, the District agreed that in addition to limited travel time with a route with fewer stops and a 1:1 bus para, the Student also required a safety vest and a controlled climate (P-Ex. Q; R-3). When the Parent moved in May 2022, the Private School stopped providing the home-based ABA and the Parent had to find an alternative provider (P-Ex. R-4).

On June 21, 2022, the Parent sent the District a letter informing them she had not received the School Location Letter for the 2022/23 school year which was beginning in July 2022 (P-Ex. E; R-3). The Parent also notified the District that she was placing the Student at the Private School and would be seeking direct funding at public expense and extended-day/home-based 1:1 ABA instruction under BCBA supervision (P-Ex. E). Subsequently, the Parent received the Prior Written Notice and School Location Letter dated June 24, 2022 (P-Ex. R-4). The Parent made attempts to contact the recommended location but could not speak to anyone and was unable to visit the location (P-Ex. R-4). The Parent then reenrolled the Student at the Private School (P-Ex. R). In September 2022, the District failed to provide the Student with transportation (P-Ex. R-6). The Parent had to provide private transportation at her own expense (P-Ex. P; R-6).

The Parent signed an Enrollment Contract with the Private School in which she agreed to pay the tuition enrollment for the 2022/23 school year, which included 20 hours of center-based 1:1 ABA therapy; 2 hours of BCBA/ABA supervision per week; parent training 2 times per month in 60 minute sessions; individual speech and language therapy 5 times per week in 45 minute sessions; individual physical therapy 3 times per month in 30 minute sessions; and individual occupational therapy 5 times per week in 45 minute sessions (P-Ex. L; R-5). The Parent testified that she cannot afford to pay the balance of the tuition (P-Ex. N; R-5).

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. 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 Founder and Head of the Private School (“Head of School”) testified by affidavit regarding the Private School and the Student (P-Ex. S). The Private School is an ungraded special education school serving children ages 5 through 21 years, who present with a variety of disabilities and diagnoses (P-Ex. S-1). The Private School has a unique teaching model in that the emphasis is on transdisciplinary education (P-Ex. S-2). Due to the complex and challenging nature of the students at the Private School, successful education and training incorporates expertise from several disciplines and specialties including Special Education, Mental Health, Applied Behavior Analysis (“ABA”), Speech and Language Therapy, Occupational Therapy, Physical Therapy, Social Skills Instruction, and Family/Caregiver Training (P-Ex. S-2). The Private School employs a variety of professionals including NYS Certified Special Education Teachers; Board-Certified Behavior Analyst/Licensed Behavior Analyst-NY (“BCBA/LBA”); Registered Behavior Technicians; NYS Certified and Licensed Creative Art Therapists; NYS Licensed Master Social Workers; NYS Licensed Speech and Language Pathologists; NYS Licensed and Registered Occupational Therapists; NYS Licensed Physical Therapists; assistant teachers; behavior therapists; and administrative staff (P-Ex. S-2).

The classroom model is a co-teaching, co-leading model that includes a New York State certified special education teacher and a lead behavior therapist in each classroom (P-Ex. S-2). Classroom support staff include Registered Behavioral Technicians (“RBT”) (P-Ex. S-2). The Private School also provides occupational therapy, physical therapy, speech therapy, and mental health counseling with social workers, art therapists, and music therapists; all are New York State licensed providers in their fields (P-Ex. S-3). The Private School also provides behavior support, social-emotional development, executive functioning, mental health counseling, and academic programing for all students (P-Ex. S-3). The programs are tailored to meet each student's individual needs (P-Ex. S-3). The Private School offers home visits, three parent-team conferences, three progress reports, weekly emails, collaboration, and communication with outside providers (psychiatrists, physicians, therapists, etc.) (P-Ex. S-3). To accommodate each student’s needs, the Private School provides individualized academics and therapeutic support within a small group setting (P-Ex. S-3). Students are grouped with socially comparable peers for the majority of the day (P-Ex. S-3). Based on instructional history and assessments, students are assigned to academic groups for math, reading, writing, social studies, and science, or are provided with direct 1:1 instruction (P-Ex. S-4). The academic curriculum adheres to the NYS Common Core but is modified as needed for each student (P-Ex. S-4).

The Student began attending the Private School during the 2020/21 school year (P-Ex. S-4). The Student was described as non-vocal and communicates primarily using other modalities including augmented alternative communication (“AAC”) devices, picture exchange communication system (“PECS”), vocalizations in word approximations, gestures/facial expressions, basic sign language, and eye gaze towards items in his immediate environment (P-Ex. S-5). He also presents with delays with his fine motor, gross motor, graphomotor and visual motor skills, as well as substantial delays with sensory processing, social-emotional development, and self-care/adaptive behavior skills (P-Ex. S-5). The Student has great difficulty attending to non-preferred tasks; has a low frustration tolerance; difficulty sustaining attention; and requires consistent prompts, reinforcement, and structure to be able to engage and jointly attend a task (P-Ex. S-5). The Student has a history of engaging in high rates of off-task behaviors, self-injurious behaviors, attention seeking behaviors, and aggressive behaviors that pose risk of harm to himself and others (P-Ex. S-5). Those behaviors include hitting, headbanging, property destruction, screaming, and elopement (P-Ex. S-6). His maladaptive behaviors have greatly hindered his ability to access curriculum, form relationships with his peers, independently navigate his environment at home, in school, and in the community, or participate in a less restrictive academic setting (P-Ex. S-6). During the 2022/23 school year, the Private School implemented the recommendations in the 2020 neuropsychological evaluation (P-Ex. S-6). The Student’s homeroom for the 2022/23 school year consists of eight other students with a 1:1 student to instructor ratio (P-Ex. S-6). He receives continuous 1:1 ABA based instruction and support throughout the day (P-Ex. S-6). His peers are an appropriate mix of students with similar cognitive profiles, and shared learning targets in the areas of social skills, functional communication, activities of daily living and selfregulation (P-Ex. S-7). The Private School developed program goals for the Student in various domains including behavior (physical regulation, emotional regulation, and reduction of selfinjurious behavior); pre-academic skills for math and ELA; ABA goals; speech and language therapy goals; occupational therapy goals; physical therapy goals, and music therapy goals (P-Ex. S-7). To address the Student’s maladaptive behaviors and significant social-emotional dysregulation, the Private School is implementing a comprehensive Behavior Intervention Plan based on formal and informal assessments, including Assessment of Basic Language and Learning Skills-Revised (“ABLLS-R”), a Functional Behavior Assessment (“FBA”), observations, interviews, and data analysis (P-Ex. H; S-7). The BIP targeted the Student’s aggression, self-injurious behavior, property destruction, emotional dysregulation, mouthing and flopping (P-Ex. S-7). The BIP is also designed to increase compliance with demands, functional communication, and physical regulation (P-Ex. S-7). Data is recorded and analyzed daily, and behavior progress is monitored by a BCBA (P-Ex. S-7). Math instruction is provided during the 1:1 Instruction/Discrete Trial Learning Sessions (P-Ex. S-9). As described in the Progress Report, during instruction, classroom staff are targeting pre-academic goals including identification of shapes and numbers, development of a conceptual understanding of 1:1 correspondence, and expressively identifying numbers 1 to 10 and shapes (P-Ex. K; S-9). Math goals are taught through discrete trial learning where he moves through different prompt levels in order to independently exhibit the target skills (P-Ex. S-9). ELA instruction is provided using Edmark, Level 1, which provides carefully sequenced, highly repetitive word recognition method combined with errorless learning (P-Ex. S-10). Classroom staff are targeting goals including increasing sight word to picture association, receptive identification of uppercase letters of the alphabet, increasing receptive and expressive sight word repertoire and instructing the Student how to independently spell his name using the keyboard of his AAC device (P-Ex. K; S-10). During other 1:1 Instruction/Discrete Trial Learning sessions, the classroom team focuses on a variety of ABA program goals that address various skill areas including the Student’s ability to refrain from touching items within his environment and/or taking items from peers or adults; following one step directions; waiting for a reinforcer; answering yes or no questions; greeting familiar and novel peers; turn taking; cleaning-up a work area; toothbrushing; cleaning-up around meal times; independent play; dressing/undressing; handwashing, and recognition of safe versus unsafe conditions (P-Ex. K; S-10). To address the Student’s significant speech and language skills deficits, he receives speech and language therapy five times per week in 45-minute 1:1 sessions (P-Ex. I; S-10). The Student is working on improving his receptive language skills to facilitate participation in structured and unstructured tasks, improving his expressive language skills in order to functionally express his needs and wants to participate in structured and unstructured tasks, improving his speech sound production skills, and improving his pragmatic language skills (P-Ex. K; S-10-11). To address the Student’s fine motor, graphomotor, visual-motor skills, sensory processing, and self-care/adaptive behavior skill deficits, he is receiving occupational therapy five times per week in 45-minute 1:1 sessions (P-Ex. S-11). OT focused on improving fine motor, visual motor and bilateral coordination skills for increased independence completing academic, play and self-care tasks; improving sensory processing, motor planning and selfregulation skills in order to increase participation and independence in activities of daily living, learning, play and peer interactions; and increased independence with activities of daily living (P-Ex. K; S-11). To address the Student’s gross motor skill deficits, he is receiving physical therapy three times per week in 30 minute 1:1 sessions (P-Ex. I; S-11). Sessions are focused on improving body awareness and balance for increased safety during moving in his environment and gross motor activity, increased strength to promote improvement in posture and functional mobility and improving the Student’s coordination of motor planning for greater independence in activities throughout the day (P-Ex. K; S-11). The Student also receives music therapy services once a week for 30-minutes in a group, to facilitate social-emotional development (P-Ex. S-12).

The Private School provides the Parents access to monthly training sessions to, among other things, educate them on ASD, strategies to manage social-emotional dysregulation and maladaptive behaviors, and how to generalize new skills at home and in the community (P-Ex. S-12). According to the Head of School, the Student’s skill acquisition and retention requires intensive 12-month ABA services, 1:1 and small group instruction and a comprehensive structured BIP delivered in a small school setting by a highly skilled, transdisciplinary team approach with maximum repetition, implementation across settings, and parent training (P-Ex. S-12).

The Student has also been receiving 15 hours of weekly home-based ABA instruction (P-Ex. S-12-13). ABA is an evidence-based, best practice therapeutic intervention that has been shown to have high rates of success in helping those with Autism to achieve more independence, improve communication and socialization abilities and reduce negative behaviors (P-Ex. T-4). It also has been effective in improving attention, focus, memory, and academic achievement (P-Ex. T-4). The homebased 1:1 ABA services help decrease the Student’s severe maladaptive behaviors that pose a risk of injury to himself and others and that prevent him from being available for learning; they also reinforce self-regulation skills and other skills he is being taught at the Private School, which he needs to access curriculum, make progress and to prevent regression (P-Ex. S-13; T-6). Due to the Student’s complex disabilities, he requires substantial time to acquire and retain skills (P-Ex. S-13; T-6). As a result, he benefits greatly from practicing skills being taught to him across all settings (in school, at home and in the community), including self-care skills (P-Ex. S-13).

The home-based ABA provider confers with the Private School staff concerning the Student’s needs, goals, strategies for achieving goals, and progress so that the ABA provider can reinforce the learning and skill development initiated at the Private School and also facilitate his generalization of those skills at home and in the community (P-Ex. T-7). Goals for the Student’s home-based ABA program focus on reducing the severity of interfering behaviors, teaching him how to perform self-care skills independently, and decreasing unsafe behaviors across settings (P-Ex. T-7). The ABA provider also provides the Parent with guidance concerning ASD, how to safely manage his dysregulation and problem behaviors, and how to reinforce the Student’s retention and generalization of skills across settings and among people (P-Ex. T-8). The Student has been making progress towards reducing his problem behaviors at home and when out in the community and has reduced acts of physical aggression, property destruction and elopement within the house (P-Ex. T-7). 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. The Student has made slow steady progress in all areas (P-Ex. S-13). He has made progress towards his behavior goals this school year (P-Ex. S-8). He has shown growth in several areas including increased emotional/physical regulation, decreased occurrences of self-injurious behaviors, and increased functional communication of his needs and wants (P-Ex. H; S-8). His progress was monitored through ongoing assessments, daily data collections, work samples, and anecdotal observations (P-Ex. S-8). The Parent receives updates regularly in the form of daily communication, weekly emails, in-person and zoom meetings, and progress reports (P-Ex. S-8). All of the Student’s academic and therapeutic goals at are targeted and measured using a total communication approach to facilitate the development of his communication skills which is a significant area of need (P-Ex. S-8). The Student also made progress in math, ELA, and ABA goals; as well as progress in speech and language therapy, occupational therapy, physical therapy, and musical therapy (P-Ex. S-9-10; 12). 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.

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:

1. ORDER THAT, the District shall reimburse the Parent and/or directly pay the Private School for the full tuition and fees for the Student’s unilateral placement at the Private Schools during the 12-month 2022/23 school year, with special transportation;

2. ORDER THAT, the District shall reimburse the Parent and/or directly pay the service provider for the 15 hours per week of home-based ABA for the 12-month 2022/23 school year, at a rate not to exceed $300.00/hour;

3. ORDER THAT, the District shall reimburse the Parent for the private transportation the Parent provided the Student in September 2022, an amount not to exceed $1,319.00.

SO ORDERED

DATED: February 18, 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.

EVIDENCE

DISTRICT

None

PARENT

Ex DATE DOCUMENT Pages A 7/6/22 Hearing Request 12 B 7/2/20 Neuropsychological Evaluation 12 C 10/5/20 D 11/6/20 Assistive Technology Assessment Report for AAC 10 E 6/21/22 Ten Day Notice 5 F 6/21/22 Ten Day Notice Confirmation 1 G Undated Private School Program Description 1 H 7/11/22 FBA and BIP 18 I 2022-2023 2022–2023 Summer Schedule 6 J 2022-2023 2022–2023 Ten Month Schedule 7 K 11/18/22 Private School Progress Report 32 L 5/10/22 Private School Enrollment Contract 18 M 9/6/22 Private School Tuition Affidavit 1 N 3/3/22 Federal Form 1040 Income Tax Return for 2021 2 O 9/20/22 Parent emails with DOE re: Transportation Reimbursement 6 P 9/2022 Uber Travel Receipts 17 Q 2/22/22 Request for Medical Accommodations 4 R 12/7/22 Affidavit of Testimony: Parent 6

S 12/7/22 Affidavit of Testimony: Head of School 13

T 12/7/22 Affidavit of Testimony: BCBA 8 U 9/1/22 Pendency Agreement 1 V 12/12/22 Hearing Request #2 13 W 1/2023 Home-based ABA Progress report 5

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.