New York City Department of Education, Impartial Hearing Decision

Case Number: 576388 – NYC: 229073

FINDINGS OF FACT AND DECISION AND ORDER

PERSONS APPEARING

August 22, 2022 REDACTED, Esq. Attorney Parents (Remote) REDACTED

October 12, 2022 REDACTED, Esq. Attorney Department of (Remote) Education REDACTED, Esq. Attorney Parents (Remote) REDACTED

November 16, 2022 REDACTED, Esq. Attorney Department of (Remote) Education REDACTED, Esq. Attorney Parents (Remote) REDACTED

December 20, 2022 REDACTED, Esq. Attorney Department of (Remote) Education

REDACTED, Esq. Attorney Parents (Remote) REDACTED

February 8, 2023 REDACTED, Esq. Attorney Department of (Remote) Education REDACTED, Esq. Attorney Parents (Remote) REDACTED REDACTED, Ph.D. School Psychologist Department of (Remote) Education REDACTED Father (Remote) REDACTED Mother (Remote)

February 10, 2023 REDACTED, Esq. Attorney Department of (Remote) Education REDACTED, Esq. Attorney Parents (Remote) REDACTED REDACTED, Ph.D. School Psychologist Department of (Remote) Education REDACTED Father (Remote) REDACTED Mother (Remote) REDACTED Special Education Teacher Parents (Remote) REDACTED REDACTED REDACTED Parents (Remote) REDACTED REDACTED REDACTED Parents (Remote) REDACTED Hearing Officer’s Findings of Fact, Decision and Order

INTRODUCTION

On August 22, 2022, October 12, 2022, November 16, 2022, December 20, 2022, February 8, 2023, and February 10, 2023, I held a hearing for a school-aged child, REDACTED (“the child”). The hearing appearances were held remotely.

The child is currently five years eight months-old and is classified as having Autism (DOE Ex. 2 at 1). For the 2022-2023 school-year the child is unilaterally placed at REDACTED (“REDACTED).

The parents, by their advocate REDACTED, filed an Impartial Hearing Request on July 12, 2022, alleging that for various reasons, the Department of Education failed to provide the child with a Free and Appropriate Education (“FAPE”) for the 2022-2023 school-year (Parents’ Ex. A). As a remedy the parents asked for an Order directing reimbursement for the child’s tuition at REDACTED from July 1, 2022 through June 30, 2023 (Parents’ Ex. A at 6).

I was appointed as Impartial Hearing Officer on July 27, 2022. At that time, the compliance date was September 25, 2022. I extended the compliance date seven times, initially because the case was being investigated for settlement, and subsequently for a change in attorneys representing the Department of Education, for a hearing date, and for time to review the transcript and evidence and the issuance of a Decision and Order.

The extensions were granted after considering the cumulative impact of the factors enumerated in Section 200.5(j)(5)(ii) of the New York State Regulations of the Commissioner of Education (“Commissioner’s Regulations”) and a determination that there was a compelling reason for each of the extensions as required by Section 200.5(j)(5)(iii) of the Commissioner’s Regulations. Specifically, (a) at the time I was appointed to the case the student was attending the program desired by the parents; (b) in accordance with due process, the parties were entitled to time to see if the case would settle, and subsequently to secure witnesses, to participate in a hearing, and to have this hearing officer review the transcript and evidence and issue a Decision and Order; (c) there were no financial or detrimental consequences likely to be suffered by either party by the delay; and (d) there was no prior delay in this case that impacted on the child’s education.

THE ISSUES REMAINING IN DISPUTE AT THE IMPARTIAL HEARING

At the conclusion of the hearing the remaining issues in the case are: 1) whether the Department of Education provided the child with a FAPE for the 2022-2023 school-year and if not, 2) whether REDACTED was appropriate for the student, and 3) whether the equities of the case favor the parents or the Department of Education.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

POINT I

The Department of Education’s Case

The Department of Education introduced several documents into evidence and presented one witness, REDACTED, Ph.D. (TR: 44-111). 1

REDACTED, Ph.D., conducted the IEP meeting on May 24, 2022. Dr. REDACTED appeared as the District Representative and she and REDACTED appeared as the General Education Teacher/School Psychologist. The other Department of Education participants were REDACTED, Related Service Provider/Special Education Teacher, and REDACTED, Social Worker. Both parents appeared as did REDACTED, the child’s preschool teacher at REDACTED, and REDACTED, a parent advocate (TR: 53-54; DOE Ex. 2 at 27-28).

Dr. REDACTED testified sometime prior to the IEP meeting she and the Department of Education members of the IEP team informally reviewed the child’s August 23, 2021 IEP, March 9, 2022 Classroom Observation, May 26, 2021 Neuropsychological Evaluation, May 1, 2022 Physical Therapy Progress Report, April 18, 2022 Speech/Language Progress Report, and May ^[1], 2022 Teacher Report (TR: 48-51, 89-90; DOE Ex. 3 at 2). 2 Based on those documents Dr. REDACTED recalled that the child had very strong cognitive skills, and that the child’s fine motor skills and behavior and social pragmatic skills were weak (TR: 52-52; DOE Ex. 10 at 2-3).

The Neuropsychological Evaluation by REDACTED, Psy.D., diagnosed the child with Autism Spectrum Disorder (“ASD”) (DOE Ex. 7 at 7). The evaluation report specified that the child’s delays in communication and socialization remain prominent and recommended that the 2 Dr. REDACTED testified that the review “probably” took a few hours as relevant persons would have “come in and come out.” The meeting was for the participants to review the materials and no determinations were made at that time (TR: 90-92). child be placed in an in an “integrated preschool program with a small student-to-teacher ratio that offers developmentally integrated classes for children with developmental delays and typically developing peers in a setting that can accommodate his cognitive strengths, while addressing the social- communicative challenges associated with ASD.” Dr. REDACTED “strongly recommended” that the child’s programming be directed by educators and consultants with experience in” ASD (TR: 105-106; Parents’ Ex. 7 at 8).

The child’s May 1, 2022 end of preschool Progress Report indicates that he requires the direct support of a teacher to begin a teacher-directed activity and that when finished with an activity, he requires prompting to put his materials away and often needs support to follow through on what has been asked of him. At mealtimes, the child needs teacher encouragement to join his classmates at the table. The report states that the child was working on transitioning from one activity to another without avoidant/disruptive behaviors, following the routine of the class, independently following two-step directions given to the group, and independently following twostep directions given one-to-one. When the child is having a strong feeling, he often communicates non-verbally making noises, crying, screaming, and refusing to move. He has difficulty attending to teacher-directed conversations when working in a group larger than four students (DOE Ex. 10 at 2).

His Social/Emotional Areas of Development indicate that he chooses to work alone and physically apart from his peers, misses social cues, expresses himself physically instead of verbally when he has a strong feeling, and that he is often unaware of the effect he has on others and demonstrates a diminished affect (DOE Ex. 10 at 2-3).

Dr .REDACTED related that while discussing the various sections of the IEP, the parents expressed no academic concerns as the student was reading above grade level. Their concerns centered around pragmatic language, noting that while the child had a desire for social connections, he had to learn how to communicate with others in a way that they could understand (TR: 57; DOE Ex. 2 at 26). The Management Needs section of the IEP was designed to address areas in which the student required additional support within a general education setting and were derived primarily from the Neuropsychological Evaluation, and the concerns of the teacher and the parents (TR: 57-58).

Dr. REDACTED testified that the team discussed the goals for the student and the goals were developed to address the areas in which the child required support. She first testified that the information used to develop the goals came from the child’s providers and preschool teacher during the IEP meeting and through their Progress Reports. Subsequently Dr. REDACTED testified that she “misspoke,” and that while sometimes providers and teachers submit goals prior to the IEP meeting, she could not recall whether the child’s teacher or related service providers provided any goals for the child without looking at the child’s progress reports. The parents did not participate in the drafting of the actual goals, which took place after the meeting (TR: 59-60, 93-96).

Dr. REDACTED testified that she reviewed all of the child’s documents related to the IEP with the parents’ and the student’s preschool teacher. She stated that if the parents did not recall a discussion about the Classroom Observation they would be mistaken. When asked on cross-examination if she provided everyone at the meeting with a copy of the observation, Dr. REDACTED stated that it was not her responsibility to do so, and that the “first” team assigned to the case conducted the observation and was responsible for providing the parents with the document, specifically REDACTED, the school psychologist or social worker who conducted the observation on March 9, 2022 (TR: 76-80; DOE Ex. 6 ). The case was then passed to Dr. REDACTED’s IEP team to conduct the IEP meeting (TR: 82-83).

Dr. REDACTED testified that it was not her responsibility to ensure that all IEP participants have any documents developed by the prior team that were discussed at the IEP meeting, as it was the other team’s responsibility to provide those documents to the parties (TR: 82-83). However, she stated that she knew the parents had all of the documents since they are on all of the email threads where the reports are sent directly to the parents, and at no time did the parents state at the meeting that they did not have the particular documents (TR: 84-86). She also stated that before discussing each document she asked the parents if they were familiar with it (TR: 86). Dr. REDACTED opined that if the parents said they were not asked about their familiarity with the documents, they would be mistaken (TR: 85-86).

The Department of Education members of the IEP team concluded that, based on all of the information before them, the child’s cognitive and academic skill set showed that for the 10-month 2022-2023 school-year the Least Restrictive Environment (“LRE”) appropriate for the child was Kindergarten Integrated Co-Teaching (“ICT”) class for ELA, math, social studies, and science, the related services of occupational therapy twice per week for 30 minutes individually and once per week in a group of two, physical therapy twice per week for 30 minutes in a group of two, speech/language therapy twice per week for 30 minutes individually and once per week for 30 minutes in a group of two, counseling once per week for 30 minutes in a group of three, a full-time health paraprofessional in a group,^[3] and monthly parent training and counseling in a group (TR: 61-64; DOE Ex. 2 at 18-19). The paraprofessional was to address the child’s documented drinking, eating, toileting and sensory needs (TR: 60-61). The IEP team considered and rejected smaller 12:1 and 6:1:1 ratios based on the information noted above and the fact that the ICT class would provide the student with typically developing peer role models and that he would be successful in that setting (TR: 64-65). In making that determination, Dr. REDACTED focused on the results of the Neuropsychological Evaluation that showed the child’s “very strong cognitive skills” and teacher reports that showed “very strong” preschool academic skills (TR: 51-53).

The IEP team also recommended an extended school year program over the summer, consisting of individual Special Education Teacher Support Services (“SETSS”) five periods per week for ELA and five periods per week for math, occupational therapy twice per week for 30 minutes individually and once per week in a group of two, physical therapy twice per week for 30 minutes in a group of two, speech/language therapy twice per week for 30 minutes individually and once per week in a group of two, and a full-time group health paraprofessional (DOE Ex. 2 at 20-21).

While the parents agreed that the child required 12-month services, the child’s preschool teacher and the parent advocate were not in agreement with the 10-month program recommendation, as they were concerned about the number of students in an ICT classroom (TR: 65-66). At the parents’ request the IEP team also discussed a Non Public School (“NPS”) and the NEST program. NEST is a special Department of Education ICT program run by New York University, in which the classes are somewhat smaller than a traditional ICT program and is designed with supports for those students on the Autism spectrum. While the IEP team cannot specifically recommend NEST to a parent, Dr. REDACTED testified that she did “mention” the program to the parents and provided them with information (TR: 100-102).

Dr. REDACTED did not provide the parents with any information about the number of students or the number of adults that would be in the student’s ICT class, except for the fact that the class would have one general education teacher and one special education teacher, and that the ratio of general education students to special education students would be 60% to 40% (TR:102-103). The number of students in an ICT class can vary from 20 to 30 students, as can the number of teaching assistants and paraprofessionals (TR: 107-111). Dr. REDACTED stated that because of many variables, she could not tell the parents that the ICT class assigned to the student might contain 20 students or 30 students, or how many adults would be in the classes in addition to the teachers. Even without that information, Dr. REDACTED believed that any size ICT class, regardless of the number of children and adults present, would be appropriate for the child (TR: 102-105, 107-111).

Dr. REDACTED first testified that she took her own “personal” notes (as opposed to “formal” notes) at the meeting, but that she no longer has them. She subsequently testified that she did not recall whether she took notes. Dr. REDACTED does not have a specific protocol for what she does with her notes after and IEP meeting, but she no longer has access to any notes she may have taken at the meeting (TR: 71-75, 121).

The parents requested transportation. Dr. REDACTED testified that the team did not recommend transportation because the child would have been placed in his community school, and transportation is only for students sent to a school located a specified distance from their home (TR: 66-67). A Prior Written Notice dated June 15, 2022 recommended a placement at REDACTED, while the parents live REDACTED, clearly not within walking distance (DOE Ex.

4 at 2).

Conclusions of Law

The purpose behind the Individuals with Disabilities Education Act (“IDEA”) 20 U.S.C. §§ 1400-1482 is to ensure that students with disabilities have available to them a FAPE, a free and appropriate education in the least restrictive environment (“LRE”). A FAPE includes special education and related services designed to meet a child’s unique needs, provided in conformity with a comprehensive written IEP. 20 U.S.C. § 1401(9)(D) 34 C.F.R. § 300.13; see 20 U.S.C. § 1414(d); 34 C.F.R. § 300.347; Board of Education v. Rowley, 458 U.S. 176, 179-81, 200-201 (1982). A school District offers a FAPE by developing an IEP and “providing personalized instruction with sufficient support services to permit a child to benefit educationally from that instruction.” Id. At 203; See R.E, v. New York City Dept. of Educ., 694 F.3d 167, 175 (2nd Cir. 2012). An appropriate placement is one that is "reasonably calculated to enable the child to receive educational benefits." Rowley, 458 U.S. at 188-189, 207; Florence County School District Four v. Carter, 510 U.S. 7, 14 (1993); Frank G., v. Bd. of Educ. of Hyde Park, 450 F.3d 356, 364 (2d Cir.2006), cert. denied, ___ U.S. ___, 128 S.Ct. 436, 169 L.Ed.2d 325 (2007). At an impartial hearing the Department of Education bears the burden of demonstrating the appropriateness of the program recommended by its CSE. N.Y. Educ. Law §4404[1][c].

To meet its burden, the Board of Education must show that it recommended a program that is reasonably calculated to allow the child to receive educational benefits and that the recommended program is the LRE for the child. Rowley, 458 U.S. at 188-189; 34 CFR 300.550 [b]; 8 NYCRR 200.6 [a][1]. The IEP must and the program must be “likely to produce progress and not regression” and “afford the student an opportunity for greater than trivial advancement.” M.O. v. N.Y.C. Dept. of Educ., 793 F.3d 236, 23 (2d Cir., 2015), citing M.H. v. N.Y.C. Dept. of Educ., 685 F.3d 217, 224 (2d Cir. 2012).

Once the student’s needs are established, the IEP must provide for the use of appropriate special education services to address the child's special education needs, and establish annual goals and short-term instructional objectives which are related to the child's educational deficits. See R.E., 694 F.3d at 175. The instruction offered must be “specially designed” to meet a child’s “unique needs” through an individualized education program recognizing that “the benefits obtainable by children at one end of the spectrum will differ dramatically from those obtainable by children at the other end, with infinite variations in between.” Endrew F. v. Douglas County School Dist. RE-1, 580 U.S. ___, 137 S. Ct. 988 at 999-1000 (2017) quoting Rowley, 458 U.S. at 202.

Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245).

***

In their Impartial Hearing Request the parents raised objections to, among other things, the propriety of the May 24, 2022 IEP and the appropriateness of an ICT program for the student (Parents’ Ex. A).

A. 10-Month School-Year Dr. REDACTED, the school psychologist who conducted the IEP meeting, explained her reasons for finding that an ICT class was appropriate for the student. She also testified that she did not give the parents any information about the size of an ICT class or, in addition to the two teachers, the number of adults, assistants and or paraprofessionals who would be in the class. Dr. REDACTED’s reasoning for the failure to provide this information was that the size of an ICT class can vary from 20 to 30 students, and that the number of adults in the class can vary as well, as there is no set protocol for a required number of adults for a specific number of children (TR: 107-111).

I find that the evidence, as Dr. REDACTED stated, supports a finding that that an inclusive class is appropriate for the child. However, the evidence also shows that that the student requires a small class. For example, the Neuropsychological Evaluation recognizes the student’s high cognition, but also notes that he requires a “small student to teacher ratio” and “strongly recommended” that the child’s educational programming be directed by educational consultants with experience in ASD (DOE Ex. 7 at 7-8). The May 1, 2022 REDACTED Progress Report indicates that the child has difficulty attending to teacher led conversations in a group of more than four students (DOE Ex. 10 at 2). The child’s mother testified that he attended preschool programs with 22 to 25 children and four instructors, and was asked that he either not return or repeat the twos program. He was dismissed from a summer program after only one week. (Tr. 151).

The child’s current learning specialist testified that even in his class of 16 students, he is “most successful when he has the one-to-one support of a teacher to navigate his day,” not only to start and finish activities, but also to stay on task or to interact appropriately with peers rather than “grabbing materials or crowding a classmate’s space.” When he lacks support or intervention, particularly one-to-one, he may “wander the room, engage in self-directed activities, and not participate in the curriculum of the class” (TR: 135; Parent’s Ex. I at 2).

Thus, the size of the ICT class and the number of adults providing support in the classroom was information critical to determine the appropriateness of the recommended program and placement. Indeed, not only was that information that the parents needed to know, but without that information Dr .REDACTED could not reasonably conclude that a program that might place the child in a class of 30 students with an unknown number of adults would be appropriate for him.

In addition, I agree with the parents that the goals as written were not all measurable. For example, the first Sensory/Self-Regulation goal actually contains several separate goals, specifically, 1) the ability to focus on the rug during large group instruction; 2) the ability to focus on the rug during small group instruction, 3) remaining on topic during class participation, 4) improved attention and eye contact, and 5) utilizing adaptive tools and supports as needed, each of which would have to be measured individually. Similarly, the Writing goal contains several separate goals, specifically, 1) accurately labeling pictures, 2) identifying phonetic consonants, and 3) identifying phonetic vowels, each of which should be measured separately (TR: 126-128; DOE Ex. 2 at 8, 10).

I reject the accuracy of Dr. REDACTED’s testimony that she discussed the various documents and goals with the parents at the IEP meeting. While Dr. REDACTED, who conducts approximately 150 IEP meetings each year, first testified that she had an independent recollection of the child’s May 24, 2022 IEP meeting, in fact she was not able to recall any information about the meeting without first consulting the IEP, which has no information about the specifics discussed at the meeting except for the concerns expressed by the parents regarding the child’s needs. She nevertheless testified that she reviewed the classroom observation, prior IEP, physical therapy progress report, speech/language progress report, and teacher report with the parents (TR: 50-51, 76-77).

REDACTED, the REDACTED representative that accompanied the parents to the IEP meeting and who taught the student during the 2021-2022 school-year, credibly testified that she did not recall any of those documents being reviewed except for a reference to the “numbers” on the Neuropsychological Evaluation (TR: 145-147). The child’s mother credibly testified unequivocally that Dr. REDACTED did not review the classroom observation, the child’s prior IEP, the physical therapy report, speech/language report or teacher report, and that she made “brief references” to the Neuropsychological Evaluation in terms of recognizing the child’s cognitive strengths (TR: 155-157).

Dr. REDACTED conceded that she reduced the goals to writing after the IEP meeting had concluded and there is no evidence to support her testimony that the goals were discussed at the meeting. Ms. REDACTED testified that she did not remember a review of the annual goals and the child’s mother testified that that the IEP team “absolutely” did not review the child’s annual goals at the meeting (TR: 156).

Considering that Dr. REDACTED had no independent memory of the meeting, the fact that the IEP itself does not indicate what was actually discussed at the meeting regarding documents and goals, there are no minutes of the meeting, and the testimony of Ms. REDACTED and the parent, I do not credit the accuracy of Dr. REDACTED’s recollections and find that none of the annual goals or the documents used as a basis for those goals on the IEP were reviewed with the parents at the meeting. Thus, the parents were deprived of the right to fully participate in the IEP meeting.

As noted, there were no IEP Meeting Minutes and any notes that Dr. REDACTED took at the meeting, which she characterized as “personal” notes, were destroyed and are no longer available. The District argued at the hearing and in its Closing Brief that under the Chancellor’s Regulations A-820 III C, Dr. REDACTED’s notes to do not constitute an education record, as the notes were “kept in the sole possession of the maker, [were] used only as a personal memory aid, and [were] not accessible or revealed to any other person except a temporary substitute for the maker of the record.” TR: 121; IHO Ex. I at 8-9). Since Dr. REDACTED testified that she actually wrote the goals after the meeting concluded, those notes presumably contained information relevant to the goals on the IEP and, if written, should have been retained.

Finally, the parents’ request for transportation was denied. Dr. REDACTED testified that the child was not recommended for transportation because he would be placed in his zoned community school and thus would not be eligible for Department of Education transportation, which is based on mileage from the home. In fact, as detailed above, the placement recommended for the student was far from his community, as he lived on REDACTED and the school recommended for him, REDACTED, was on REDACTED.

For the reasons cited above, I find that the Department of Education failed to meet its burden of demonstrating that it provided the student with a FAPE for the 10-Month 2022-2023 school-year.

B. Extended School Year Services The extended school-year services for the summer of 2022 were appropriate for the student.

As detailed above, the summer services were not part of a 12-month school-year, but rather were recommended for the student in order to prevent regression over the summer break. The ten periods of SETSS per week for ELA and math were to be provided one-on-one, and the related services of occupational therapy and speech therapy were to be provided for 60 minutes each oneon-one and once per week in a small group of two, and physical therapy was mandated for 30 minutes per week in a small group of two (DOE Ex. 2 at 19-21).

These individual and small group sessions provided the services necessary for the student and meet the parents’ concerns about the student’s difficulties in a large group setting. The fact that the summer services do not represent an inclusion program is not relevant, as general education peers would not be recommended for extended year services.

POINT II

The Parents’ Case

Findings of Fact

The child’s mother testified in person (TR: 148-161), as did REDACTED, the REDACTED at REDACTED (TR: 143-148).^[4] REDACTED,^[5] the student’s teacher at REDACTED, testified by Affidavit and in person (TR: 125-38; Parents’ Ex. I) as did REDACTED,^[6] the REDACTED at REDACTED (TR: 137-142; Parents’ Ex. J).

The child’s mother related that the child is a “loving and exuberant child” who has “tremendous strengths” and “considerable needs and challenges.” He taught himself to read during Covid isolation when he was three years three months old. Within six months he was reading books on a second or third grade level (TR: 149-150). However, since the child was a toddler he has had sensory struggles and “gets lost and overwhelmed without a calm and nurturing sensory environment. In overstimulating environments, such as where there are too many children, too much actual clutter, too big a space, too many people speaking, or a building that is too large for him, the child will first engage in avoidant behavior like walking” around and around” or “touch everything in sight” looking for something that interests him, while ignoring attempts by adults to redirect him in any way. If the environment does not change at that point, the child “starts yelling and repeating nonsensical noises at high volume” and “flailing and screaming and kicking on the ground,” which caused problems at different nursery and summer programs (TR: 150-151). The mother testified that without a “small, calm, and nurturing environment” the child would regress academically and emotionally (TR: 154).

On May 26, 2021, the parents took the child for a Neuropsychological Evaluation that was administered by REDACTED, Psy.D. (DOE Ex. 7). See Point I, at 5, infra, for details.

REDACTED is an independent school in Manhattan with Early Childhood, Elementary, and Middle School Programs for children ages 2 -13. There are approximately 100 children in the school. The Early Childhood program school day begins at 8:30 AM and ends at 2:45 PM on Monday, Tuesday, Thursday, and Friday, and on Wednesdays begins at 8:30 AM and ends at 2:00 PM (Parents’ Ex. J at 2).

The school has an approach that blends the understanding of child development with a working knowledge of how children learn, a student-teacher relationship that is emotionally connective, and a rigorous academic curriculum that values social-emotional intelligence and collaborative learning. The school is intentionally small to provide differentiated instruction based on each child's comprehensive educational needs (Parents’ Ex. J at 1).

A child's needs and ability to function successfully in the classroom may indicate that two or more educational and/or developmental specialists would best serve their learning. To accommodate such children, the school has an inclusion-based REDACTED. Students admitted to the REDACTED learn alongside general education peers to realize their full academic potential and develop self-esteem. The REDACTED Coordinator and other staff members prepare a personalized educational plan for each child and provide ongoing support and guidance for the child's family. REDACTED incorporates the service providers' goals, conducts evaluations throughout the year, and organizes regular meetings with therapists and teachers to discuss a student's progress and needs (Parents’ Ex. J at 2).

Team meetings are held each trimester with a student's parents, teachers, the REDACTED Coordinator, and therapists. In these meetings, the REDACTED team provides a detailed review of the student’s work and progress the student has been making and sets new goals for the student. At the spring meeting of the REDACTED team, recommendations for services for the following year are presented. Prior to each school year, the REDACTED coordinator and others review and revise, as needed, the personalized educational plan for each student for the coming year and inform the parents in writing of the schedule for services and the dates of the upcoming team meetings (Parents’ Ex. J at 2).

The learning specialists at the school include licensed occupational therapists, clinical speech and language pathologists, mental health counselors and therapists, as well as highly trained learning specialists, and paraprofessionals. Most of the Head Teachers have Master's Degrees in education. The Assistant Teachers all have bachelor's degrees, and many are working towards a Master's Degree. All of the teaching staff, including paraprofessionals, receive ongoing training, including a week-long training in August, a staff development day each trimester, weekly staff development meetings with the REDACTED, weekly supervision with the REDACTED by program, and a two-week training at the end of the academic year in June (Parents’ Ex. J at 2).

The school offers accommodations to students depending on their needs. Those accommodations include extended time, preferential seating, computer use, one-to-one instruction, and academic support, including pre-teaching and post-teaching, chunking of information, scaffolding, repetition, visual aids, flashcards, graphic organizers, redirection and refocusing (Parents’ Ex. J at 2).

REDACTED is familiar with the child, who is enrolled in the REDACTED class for the 2022-2023 school year. The child is one of two REDACTED students in a small class setting of 16 children with three teachers (Parents’ Ex. J at 2, 4).

The child’s classroom teachers are REDACTED, REDACTED, and REDACTED. Ms. REDACTED has a Master’s Degree in Elementary and Inclusive Education. Ms. REDACTED has a Bachelor of Arts degree. in Childhood Education with an extension in bilingual education. Ms. REDACTED has a Bachelor of Arts degree in Psychology Neuroscience and Behavior (Parents’ Ex. J at 4).

REDACTED, a special education teacher, works with the child three times per week, providing him with two learning support sessions for one hour and one group session of Floortime play therapy for 30 minutes. The sessions take place both inside the classroom and in the therapy room. The student also receives Occupational Therapy 45 minutes per week, Physical Therapy 45 minutes per week, Speech and Language therapy 90 minutes per week, group counseling 30 minutes per week, and paraprofessional support 12 hours per week (Parents’ Ex. I at 1).

Ms. REDACTED consults with the child’s teachers weekly to discuss his emotional, and physical needs. During the current school-year the student has made gains across domains. For example, at the beginning of the year, he struggled to attend to and participate in the classroom curriculum for even small amounts of time. At the time of the hearing, with his teachers' support and a curriculum modified to meet his specific needs, he is increasingly able to participate in group lessons and activities and has established relationships with his teachers and peers (Parents’ Ex. I at 2).

The child is most successful when he has the one-to-one support of a teacher to navigate his day. The child’s class starts the day with “Work Period,” when the students can choose their materials and engage in open-ended work. The child needs support to find materials and work with them appropriately. He needs prompting to get started and stay on task. He is increasingly interested in the work of his peers and needs help to make inquiries verbally instead of grabbing materials or crowding a classmate's space. Without support, the child may wander the room, engage in self-directed activities, and not participate in the curriculum of the class (Parents’ Ex. I at 2).

When the students come together on the rug for stories or group instruction, the child needs a teacher to sit next to him to provide refocusing and redirection. He can sit and listen to stories but struggles during tasks that ask for class participation, often choosing to read his book instead of attending to the book being read to the group. Before introducing the group's lessons, his teachers will pre-teach the previous day using visual aids. When the child is familiar with the presented material, he can attend group instruction more easily (Parents’ Ex. I at 2).

During Block Building, both with big blocks in the yard and small blocks in the Block Room, the child relies on the support of his teachers to find a safe place to build. Although he is an accomplished builder, he needs support to get started and to find the materials he needs. When the child gets uncomfortable or fatigued, he will often lie down or engage in avoidant behavior. He is working on verbally letting his teachers know when he would like a break (Parents’ Ex. I at 2).

The child often chooses not to eat the food offered at school and struggles to stay in his chair during snacks and lunch. He needs the support of his teachers to sit with his tablemates and engage in social conversation. Without that support the child will get up from the table and find an alternate activity, often reading a book or working on a puzzle (Parents’ Ex. I at 2).

The teachers provide the child with various academic supports such as scaffolding, prompting, chunking of information, pre-teaching and post-teaching, redirection, refocusing, and visual aids. These supports are specifically differentiated to address the child's specific classroom needs when support is required. This comprehensive intervention plan has given the child full access to his education and has allowed him to keep pace with the classroom curriculum (Parents’ Ex. I at 2).

During the current school-year the student’s reading and writing foundations are on or approaching grade level, but his ability to apply his skills is far below. For example, while the child can independently read and decode advanced text and answer concrete questions about key details, plot, and characters, he struggles with simple abstractions, predictions, and story retelling. He is also unable to produce and expand complete sentences during dictation or shared language activities (Parents’ Ex. I at 2).

Despite the child’s strong literacy skills, he struggles to retell simple plots and storylines from stories that have just been read to the group. Additionally, he is weak in his ability to sequence a story of 3-5 elements, ask and answer questions about unknown words in text or describe the relationship between illustration and text. He also struggles with group work due to his inability to follow agreed-upon rules for discussion such as taking turns when speaking, staying on topic, and listening to others when they are speaking (Parents’ Ex. I at 2).

The child is often resistant to writing, but just shortly before the hearing he was able to make simple representations of shapes and the letters in his name. In occupational therapy, he is working on improving hand strength, improving pre-writing skills, increasing visual tracking skills, and establishing a static tripod pencil grasp (Parents’ Ex. I at 2).

The child’s math skills are on or approaching grade level, but his ability to attend to and engage in small and large group instruction and activities makes it difficult for him to participate fully. With one-to-one support, the child can count to answer "how many" up to 100 when objects are presented linearly and he shows an understanding of one-to-one correspondence. He can identify where the number of objects in a group is greater than, less than, or equal to those in another group. Despite his core skills, when not provided with concrete examples, the child struggles to attend group math and building activities, classify objects into several categories, add numbers up to 20 with manipulatives, and understand simple math concepts (Parents’ Ex. I at 3).

The child presents with significant delays in both expressive and receptive language. Although he can label and has an extensive vocabulary, he struggles to use language to communicate his thoughts and feelings, produce novel sentences, retell a story, and answer questions about himself. He also struggles to interact with his peers, follow directions given to him and/or the group, and modify his behavior at a teacher's or peer's request. For example, during rest, the child sometimes takes a book that a classmate is looking through. When that student expresses displeasure and asks him to stop, the child may stop for a moment but will then repeat the behavior, showing blunted affect. During group and small group instruction, the child shows a limited capacity to maintain attention and responsiveness. With direct teacher support in the form of prompting and supplying language to model, the student can appropriately participate in group lessons and activities. He continues to work on increasing engagement during reciprocal play with his peers for a more extended time (Parents’ Ex. I at 3).

The child has significant delays in both self-regulation and organization. Without support, the child is easily distracted and struggles to remain on task unless the activity is of his choosing. When he has work that he enjoys, he can engage. The child loves books, small blocks, and manipulatives. He relies on the support of his teachers to develop and implement strategies to help maintain regulation and keep him engaged. He benefits greatly from visual aids and one-to-one repetition to navigate all the parts of the day, especially transitions (Parents’ Ex. I at 3).

In consultation with the child's Occupational Therapist, Ms. REDACTED works with the child to integrate skills into the classroom, such as body awareness, sensory regulation, multi-sensory processing, motor planning for safe classroom navigation, and self-regulation through movement (Parents’ Ex. I at 3). Ms. REDACTED works in consultation with the child's Speech and Language pathologist to develop skills in turn-taking, basic concepts, vocabulary, following directions, and mutual eye gaze and imitation skills through speechgesture games (Parents’ Ex. I at 3).

At REDACTED, the child receives daily support to fortify his social and emotional skills. Throughout the day, his teachers supply him with scaffolding and model language to help him navigate making contact, responding to contact, negotiating disputes, and sharing materials. He arrives at school happy and excited to see his teachers and classmates. With the current support systems in place, he is working to better understand the effect that his actions have on others. He is interested in his peers, and he can make contact appropriately with his teacher's help. Without support, the child will engage in off-task and disruptive behaviors. His behaviors sometimes affect his classmates and he can be an unpredictable playmate without intervention. The child is working with Ms. REDACTED, his therapists, and his teachers to decrease the frequency of inappropriate behaviors and to replace those behaviors with prosocial and more appropriate behaviors (Parents’ Ex. I at 4).

Ms. REDACTED opined that REDACTED provides the child with the support, individualized instruction, and service coordination that has allowed him to make progress across domains. With those services and supports the child has made meaningful academic, social, and emotional progress. Academically, he has shown an improved understanding of foundational mathematic concepts and increased literacy skills. At the beginning of the year, the child would most often work alone, choosing to interact primarily with teachers to make requests. At the time of the hearing he was exhibiting more pro-social behaviors by showing interest in the work of others, and, with his teacher's help, he was able to work collaboratively with his peers. She testified that REDACTED provides the child with differentiated instruction throughout the day which has allowed him to keep pace with the classroom curriculum (Parents’ Ex. I at 4).

Ms. REDACTED opined that REDACTED is an appropriate placement for the child for the 2022-2023 school year. He receives ongoing service coordination, differentiated instruction, and individualized support that has allowed him to make significant gains across domains. He is making meaningful academic, social, and emotional progress and has learned tools and strategies for increased organization and selfregulation (Parents’ Ex. J at 4).

Conclusions of Law

Under the second criterion of the legal standard, a parent bears the burden of proof with regard to the appropriateness of the services that she obtained for the student for the three school years in question. N.Y. Educ. Law §4404[1][c]; M.S. v. Board of Education of the City of Yonkers, 231 F.2d 96, 104 (2nd Cir. 2000); Application of a Child with a Disability, Appeal No. 11-053. In order to meet that burden, the parent must show that the educational services were "proper under the act" [IDEA]. Sch. Comm. of Burlington v. Mass. Dept. of Educ., 471 U.S. 359, 370 (1985) i.e., that the educational program is one which met the child’s special education 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. Parents cannot be denied reimbursement because a private school does not meet the standards required for a state educational agency such as developing IEPs or employing faculty members that are state certified. Rather, the parents 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” and that the placement is likely to produce progress and not regression. Ultimately, the issue turns on whether a placement - public or private - is "reasonably calculated to enable the child to receive educational benefits." Rowley, 458 U.S. at 188-189, 207; Florence County School District Four v. Carter, 510 U.S. 7, 14 (1993); Frank G., v. Bd. of Educ. of Hyde Park, 450 F.3d 356, 364-365 (2d Cir.2006), cert. denied, ___ U.S. ___, 128 S.Ct. 436, 169 L.Ed.2d 325 (2007); Walczak v. Florida Union Free Sch. Dist., 142 F.2d 119, 130 (2d Cir. 1998).

No one factor is dispositive of in determining the propriety of a unilateral placement. Rather, courts must consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. Frank G., 450 F.3d at 364-365. While parents are not held as strictly to the standard of placement in the LRE as school districts are, the restrictiveness of the parental placement may be considered in determining whether the parent are entitled to an award of tuition reimbursement. Rafferty v. Cranston Public School Comm., 315 F.3d 21, 26-27 (1st Cir. 2002); M.S, 231 F.3d at 105.

***

I credit the Affidavits and live testimony presented by the parents’ witnesses as detailed above with citations to the record. Except as indicated otherwise below, those citations will not be repeated here.

At REDACTED the child is in a small, integrated program in which he is one of two special education students in a class of sixteen with three teachers. The program allows the child to interact and learn with general education peers that provide positive role models for his social/emotional development. The class also meets the student’s academic needs, is consistent with his high cognitive potential, and reflects the recommendations in Dr. REDACTED’s Neuropsychological Evaluation (DOE Ex. 7 at 7-8).

The child is enrolled in the school’s REDACTED. The REDACTED provides the child with an individualized educational plan and conducts evaluations throughout the school year. He receives special education services from REDACTED, a special education teacher as well as occupational therapy, physical therapy, speech/language therapy, counseling, and paraprofessional support. The teachers provide academic supports such as scaffolding, prompting, chunking of information, and pre and post-teaching, all of which are differentiated to meet the child’s specific needs. The child also has one-on-one teacher or provider interaction when required.

The school is also supportive of the parents in terms of structured discussions about the child’s progress and meetings with all of his teachers and related services providers. The staff is also receptive to any concerns that parents may have regarding any struggles that the child may be having at home (TR: 160).

Ms. REDACTED, REDACTED, the REDACTED, and the child’s mother all testified that the student is making academic, social, and emotional progress during the current school-year (TR: 152-153, 162-163; Parents’ Ex. I at 4, Ex. J at 4).

In sum, I find that REDACTED is able to meet the child’s unique educational needs during the 10-montth 2022-2023 school-year in an inclusive program with general education peers. The program and supports provided to the child are enabling him to make progress and providing him with an educational benefit. Therefore, I find that the parents are entitled to reimbursement of the tuition paid and direct payment for the remainder of the tuition owed.

As stated in Point I, infra, I find that the summer program recommended in the child’s IEP was appropriate. In any event, the parents presented no evidence or testimony of the summer program that the student attended during July and August 2022. Therefore, the parents’ request in their Due Process Complaint for reimbursement starting on July 1, 2022, and the request in the Parents’ Closing Brief for payment for the “entire school year,” is denied (Parents’ Ex. A at 6; IHO Ex. II at 15). The payment shall include only the tuition cost from September 8, 2022 to June 14, 2023, as per the 2022-2023 REDACTED Contract submitted by the parents (Parents’ Ex. P).

The REDACTED tuition for the 10-month 2022-2023 school-year is $116,365.00 (Parents’ Ex. N, Ex. O, Ex. P). As of September 9, 2022, the parents had paid $37,323.00 (Parents’ Ex. P).

POINT III

Equities

The IDEA provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. 20 U.S.C. § 1412[a][10][C][iii]; 34 CFR 300.148[d]; E.M. v. New York City Dept. of Educ., 758 F.3d 442, 461 (2d Cir. 2014); Application of a Student with a Disability, No. 17-004.

The Department of Education asserts in its Closing Statement that the equities are in its favor, but it provides no argument or evidence to explain support its position (IHO Ex. I at 2, 11-12).

The May 24, 2022, IEP indicates that both of the student’s parents attended the meeting (DOE Ex. 2 at 27-28). In a 10-Day Notice letter to REDACTED, the CSE Chairperson for Region REDACTED, dated June 16, 2022, the child’s father stated, in relevant part, that the parents agree that the child requires a 12-month program, but he voiced their concern that the ICT program was too large for the student and that the program recommended by the IEP team was not sufficiently supportive to meet the student’s needs as he “can become easily over-stimulated in large groups and requires 1:1 support to remain regulated and engaged” (Parents’ Ex. B at 1).

The letter also advised that the parents had not yet received a placement recommendation for September 2022, that they were placing the child at REDACTED in July 2022, and that absent an appropriate IEP and placement, the student would attend REDACTED. The parents reserved their right to seek tuition reimbursement at public expense (Parents’ Ex. B). ^[7]

There is no evidence that anyone from the CSE responded to the parents’ concerns about an ICT class expressed in the parent’s 10-Day Notice letter.

As noted in Point I, infra, at the IEP meeting Dr. REDACTED rejected the parents’ request for transportation, stating that the child would be placed in his community school and thus transportation would not be required (TR: 66-67). However, a Prior Written Notice dated June 15, 2022 recommended a placement at REDACTED, while the parents live on the REDACTED o, clearly not within walking distance. A review of the evidence shows that on a Prior Written Notice dated January 21, 2021, the parents’ address was changed from REDACTED to the REDACTED address (DOE Ex. 5 at 5). Apparently, the updated address was never entered into the Department of Education database, as the subsequent May 2022 and June 2022 Prior Written Notices, issued more than a year later, still indicate the REDACTED address, a possible explanation of why the student was not offered an placement in an appropriate community school (DOE Ex. 3 at 5, Ex. 4 at 5, Ex. 5 at 5)

Therefore, I find that the equities of the case favor the parents

ORDER

In light of the above findings of fact, it is hereby Ordered that: 1) Within 30 days of the receipt of this Decision and Order the parents are to submit proof of the child’s attendance at REDACTED during the current 2022-2023 10-month school-year and proof of the tuition paid; 2) Within 30 days of the receipt of the documents specified in (1) above, the Department of Education is to reimburse the parents for the amount paid for the student’s 10- month 2022-2023 tuition. Any remaining tuition due shall be paid directly to the school. The total amount of tuition paid shall not exceed $REDACTED.

Dated: April 23, 2023

Rona Feinberg

Rona Feinberg, Esq.

Impartial Hearing Officer

EXHIBITS

1. DEPARTMENT OF EDUCATION: Notice of IEP Meeting May 14, 2022 3 pages DOE

2. IEP May 24, 2022 28 pages DOE

3. Prior Written Notice of Recommendation May 25, 2022 5 pages DOE

4. Prior Written Notice of Recommendation- T5 School Location letter June 15, 2022 5 pages DOE

6. 5 February 15, Consent for Additional Assessments 5 2022 Classroom Observation March 9, 2022 2 pages DOE

7. Neuropsychological Report May 26, 2021 10 pages DOE

8. Physical Therapy Report May 1, 2022 1 page DOE

9. March 14, Studio School Teacher Report 2022 2 pages DOE

10. REDACTED Spring Teacher Report May 1, 2022 3 pages DOE

11. Speech and Language Report PARENTS: April 18, 2022 1 page DOE

A. 7-12-2022 Impartial Hearing Request 8 pages

B. 6-16-2022 Letter to CSE 9 Ten Day Notice 2 pages

C OMITTED AS DUPLICATIVE

D 2022-2023 REDACTED School Program Description 1

E 2022-2023 REDACTED Class Descriptions 3

F 9-29-2022 Student Class Schedule 1

G 9-8 to 12- Student Attendance Report 1

16

2022

H 10-25-2022 REDACTED School Teacher Report 3

I 1-31-2023 Witness Affidavit-REDACTED Learning 4

Specialist REDACTED School J 1-31-2023 Witness Affidavit-Teacher-REDACTED 4

REDACTED School K 10-30-2022 Occupational Therapy Report 2

L 11-8-2022 Physical Therapy Report 2

M 11-3-2022 Speech and Language Report 2

N 8-22-2022 REDACTED School Enrollment Contract 2

O 10-1-2022 REDACTED School Tuition Invoice 2

P 9-9-2022 Certification of Payment and Attendance 1

Q 1-25 & 4-25 Proof of Payments-Chase Bank 7

& 10-12-2022

HEARING OFFICER

EXHIBIT DATE DESCRIPTION PAGES

II. I 3-24-23 DOE Closing Brief 13 Parent’s Closing Brief 3/24/23 15 pages

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 athttp://www.sro.nysed.gov.

Footnotes

[1] Dr. REDACTED has a Master’s Degree and a Ph.D. in School Psychology. She is a certified School Psychologist in New York State and nationally, and a licensed Clinical Psychologist in New York State (TR: 45).

[3] The team determined that the child did not require the level of support that would require a one-to-one paraprofessional (TR: 63).

[4] Ms. REDACTED has Masters Degrees in special education and in social work.

[5] Ms. REDACTED has a Master’s Degree in general education and special education. She has a permanent New York State license in Childhood Education and Students with Disabilities, Birth-Grade 2 (Parents’ Ex. I at 1).

[6] Ms. REDACTED has a Master’s Degree in Early Childhood and Elementary Education. She has New York State certification and a New York City license in Early Childhood through Elementary Education (Parents’ Ex. J at 1).

[7] The letter also includes information no longer relevant as May 24, 2022 IEP recommends a 12-month school year.