New York City Department of Education, Impartial Hearing Decision

Case Number: 229866

INTRODUCTION

This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (IDEA) and the New York State Education laws. The New York City Department of Education will be referred to as District or the DOE and the parents as Parents and the child will be referred to as Student.

PROCEDURAL HISTORY

This hearing was requested by a Due Process Complaint dated August 16, 2022 by Parent (Parent Ex. A). Parent claims a denial of FAPE for the 2022/23 school year, and seeks, by this Due Process Hearing Request, funding of tuition at Parent’s unilateral placement during the 2022/23 school year, together with funding for certain related services required by Student but not offered at the unilateral placement, and limited-time roundtrip transportation. Parent thereafter advised the DOE of its intention to enroll Student at the unilateral placement, and seek tuition funding as well as its other requested relief if an appropriate educational placement was not provided by the DOE, by notice dated June 24, 2022 (Parent Ex. G).

The undersigned was appointed as Impartial Hearing Officer on August 17, 2022. The parties entered into a Pendency Agreement based on a prior Findings of Fact and Decision (not part of the hearing record) which has partially reimbursed Parent for tuition payments made for the 2022/23 school year. Thereafter, hearings were held on numerous dates. During the course of the proceedings, the parties moved to extend the case compliance date in this matter on the dates indicated in IHO exhibits, all in order to allow for an examination of all relevant witnesses and documents, and to complete the hearing. In considering those requests, I weighed the cumulative impact of the relevant factors and found that, in allowing for adequate time for such purposes, the delays in the resolution of the matter and the extensions of time for such purposes were in accordance with the requirements of due process. Accordingly, requests for extensions of the case compliance date were granted. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5).

The hearing record was closed effective August 12, 2023.

Appended to this decision are: a statement of appeal rights; a list of the persons in attendance at the hearings; and a list of the documents received into evidence. See 8 NYCRR § 200.5(j)(5)(v).

FACTUAL BACKGROUND

Student was, at the beginning of the 2022/23 school year, a REDACTED year old child known to the DOE as a Student with a disability and with a DOE classification of Autism. Pursuant to the findings of a Neuropsychological Evaluation, dated December 11, 2020 (Parent Ex. B), Student presented with language delays, self-direction, deficits in attention, reciprocity, and selfregulation, and maladaptive behaviors (e.g., hitting), all of which possibly resulted in an underestimation of his true cognitive abilities. Nevertheless, according to the results of the Wechsler Preschool and Primary Scale of Intelligence – Fourth Edition (WPPSI-IV), Student was measured as performing well below expectations when compared to similarly aged peers. His abilities across cognitive domains were highly variable with individual skill sets ranging from below the 1st to the 95th percentile. His verbal cognitive skills, including knowledge of words, concepts, and relationships, were significantly underdeveloped and fell within the Borderline range (VCI= 4th percentile), while his simple receptive and expressive vocabulary skills were appropriately developed. Measures of cognitive efficiency revealed marked deficits, with extremely underdeveloped skills in employing simple attention and working memory for brief periods of time on the WPPSI-IV (WMI= 5th percentile). He also showed marked difficulties focusing, sustaining his attention, and remaining seated, all of which were previously noted on past records and school reports. His diminished ability to regulate his attention, body control, and hyperactivity was expected to impact his participation and engagement in learning and in socialization without more appropriate and individualized supports. Student was noted to display significant delays across the domains of speech and language, social communication and interaction, attention, reciprocity, self-regulation, and adaptive skills that interfered with his daily functioning and availability for learning and socializing. He was also determined to be a severe elopement risk and displayed many maladaptive behaviors including aggressive tendencies, all of which constituted his meeting the criteria for Autism Spectrum Disorder (ASD) with language impairment (299.00). Significantly noted was Student’s positive response to adult intervention and ABA strategies, as evidenced by his performance with the BCBA during the evaluation and in conversation with his current home ABA provider.

Specific recommendations included placement in a small, sensitive, and highly structured full-time special education program within a full-time special education school that provided individualized behavioral supports implemented by appropriately trained professionals, all to address Student’s significant deficits in language/communication, reciprocity, socialization, attention, self-regulation, and adaptive skills. Further, it was noted that Student required a school placement that provided intensive, direct instruction utilizing a data-driven, full-time ABA program with appropriately trained educators with experience working with children diagnosed with Autism, all on a 12-month basis, to target communication, social interaction, reciprocity, and functional academic skills. Also noted was Student’s need for a consistent and individualized behavior intervention plan to increase the likelihood of positive behaviors (e.g., social interaction, attention, participation) and decrease the likelihood of negative behaviors (e.g., avoidance, elopement, aggression). Such recommendation advised against placement in a large community school which would be too overwhelming and therefore inappropriate for Student, as he was assessed as being clearly not yet ready for any less intense, specialized, or restrictive program than the program advised above, and would therefore lack the specialized, focused level of instruction he required and would put him at risk for regression across domains and be detrimental to his development. Also recommended was the provision of a home-based program utilizing 1:1 ABA, including direct instruction, family training, and educational coordination in order to increase generalization of skills and consistency across environments, all necessary to promote language development, increase of engagement and reciprocity, and to decrease negative and interfering behaviors, as well as the provision of individual Speech-Language Therapy and Occupational Therapy, incorporated into his educational programming and provided by therapists who are skilled in working with children with ASD.

The DOE did not present any evidence at the hearing; however, the IEP for Student entered as an Impartial Hearing Officer exhibit, dated May 20, 2022 (IHO Ex. II), recommended a D75

6:1:1 placement the related services of occupational therapy, speech therapy and physical therapy, 3x30x1.

FINDINGS OF FACTS AND CONCLUSIONS OF LAW

Applicable Legal Standards

Two purposes of the IDEA, see 20 U.S.C. §§ 1400-1482, are: (a) to ensure that students with disabilities have available to them a free appropriate public education (“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 (b) to ensure that the rights of students with disabilities and parents of such students are protected, see 20 U.S.C. § 1400(d)(1)(A)-(B); see generally Forest Grove v. T.A., 557 U.S. 230, 239 (2009); Board of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982) 1.

1. The term “free appropriate public education” means special education and related services that – (A) have been provided at public expense, under public supervision and direction, and without charge;

(B) meet the standards of the State educational agency;

(C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and

(D) are provided in conformity with the individualized education program required under section 1414(d) of this title. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17.

The IDEA requires a school district to have an Individualized Educational Plan (IEP) in effect for each child with a disability at the beginning of each school year. See 20 U.S.C. § 1414(d)(2)(A); 34 C.F.R. § 300.323(a); see 71 Fed. Reg. 46682 [stating that the IDEA "is clear that at the beginning of each school year, each [district] must have an IEP in effect for each child with a disability in the agency's jurisdiction. Further, An IEP has to be based upon appropriate evaluations. 34 C.F.R. §300.324(a)(iii).

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. New York City Bd. of Educ., 2008 WL 2736027, at *6 [S.D.N.Y. July 3, 2008] [noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]).

An IEP has to be based upon appropriate evaluations. 34 C.F.R. §300.324(a)(iii). See also 34 C.F.R. §§300.303-300.311, 300.315; 8 N.Y.C.R.R. § 200.4(f). All reevaluations shall be conducted by a multidisciplinary team, including a specialist in the area of the student’s disability. 8 N.Y.C.R.R. § 200.4(b)(4). Children must be assessed “in all areas of suspected disability” using “a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information.” 20 U.S.C. §1414(d); 34 C.F.R. § 10.

Additionally, 8 N.Y.C.R.R. § 200.4(b)(6) provides that every reevaluation must identify “all of the special education and related services needs, whether or not commonly linked to the child’s classification.” 34 C.F.R. § 303(c)(6).

Parents should be central members of IEP teams. See 20 U.S.C. §§ 1414(a)(1)(A), 1414(c), 1414(d)(1)(B)(i); 34 C.F.R. §§300.15; 300.303. Further, regulations provide that the parent must have an adequate opportunity to participate in the development of the child’s IEP Cerra v. Pawling Cent. School District, 427 F.3d 186, 192 (2d Cir. 2005, requiring that the Parent be properly notified of the IEP meeting and that such meeting be scheduled at a “mutually agreed upon time and place.” 34 C.F.R. § 300.322.

An IEP must include a statement of measurable annual goals, including academic and functional goals designed to meet the student's needs that result from the student's disability to enable the student to be involved in and make progress in the general education curriculum; and meet each of the student's other educational needs that result from the student's disability (see 20 U.S.C. § 1414[d][1][A][i][II]; 34 C.F.R. § 300.320[a][2][i]; 8 NYCRR 200.4[d][2][iii]). Each annual goal shall include the evaluative criteria, evaluation procedures and schedules to be used to measure progress toward meeting the annual goal during the period beginning with placement and ending with the next scheduled review by the committee (8 NYCRR 200.4[d][2][iii][b]; see 20 U.S.C. § 1414[d][1][A][i][III]; 34 C.F.R. § 300.320[a][3])

A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132).

However, in the recent decision of the United States Supreme Court, Endrew F. v. Douglas County School District, 580 U.S. __, 14 (2017), argued January 11, 2017, and decided March 22, 2017, the Court held that, while Rowley declined “to establish any one test for determining the adequacy of educational benefits conferred upon all children covered by the Act”, 458 U. S., at 202, it nevertheless still held that “a substantive standard was “implicit in the Act”. Rowley , 458

U. S., at 193, n. 15. It similarly held that “the statement that the Act did not “guarantee any particular level of education” simply reflects the unobjectionable proposition that the IDEA cannot and does not promise “any particular [educational] outcome.” Id.at 192. Rather, the Court in Endrew held that, “To 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 (emphasis added), 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 “The 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”. And 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).

Once a parent consents to a district's provision of special education services, such services must be provided by the district in conformity with the student's IEP (20 U.S.C. § 1401[9][D]; 34 CFR 300.17[d]; see 20 U.S.C. § 1414[d]; 34 CFR 300.320). The school district must provide special education and related services to a student with a disability in accordance with the student's IEP and must make a good faith effort to assist the student to achieve the annual goals and, if appropriate, short-term instructional objectives or benchmarks listed in the student's IEP. See 8 NYCRR 200.4(e)(7). With regard to the implementation of a student's IEP, a denial of a FAPE occurs if the district deviates from substantial or significant provisions of the student's IEP in a material way (T.L. v. New York City Dep't of Educ., 2012 WL 1107652, *14 [E.D.N.Y. Mar. 30, 2012]; D.D-S., 2011 WL 3919040, at *13; A.L. v. New York City Dep't of Educ., 812 F. Supp. 2d 492, 503 [S.D.N.Y. 2011]; see A.P. v. Woodstock Bd. of Educ., 370 Fed. App'x 202, 205 [2d Cir. 2010]; Van Duyn v. Baker Sch. Dist. 5J, 502 F.3d 811, 822 [9th Cir. 2007]; Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 [5th Cir. 2000]). In order to show a denial of a FAPE based on a failure to implement an IEP, a party must establish more than a de minimis failure to implement all elements of the IEP, and instead must demonstrate that the school board or other authorities failed to implement substantial or significant provisions of the IEP (see Houston Indep. Sch. Dist., 200 F.3d at 349; see also Fisher v. Stafford Township Bd. of Educ., 289 Fed. App'x 520, 524–25 [3d Cir. 2008]; Couture v. Bd. of Educ., 535 F.3d 1243 [10th Cir. 2008]; Neosho RV Sch. Dist. v. Clark, 315 F.3d 1022, 1027 n.3 [8th Cir. 2003]). Accordingly, in reviewing failure to implement claims under the IDEA, courts have held that it must be ascertained whether the aspects of the IEP that were not followed were substantial, or in other words, "material" (A.P., 370 Fed. App'x at 205; see Van Duyn, 502 F.3d at 822 [holding that a "material failure occurs when there is more than a minor discrepancy between the services a school provides to a disabled [student] and the services required by the [student's] IEP"]; see also Catalan v. Dist. of Columbia, 478 F. Supp. 2d 73 [D. D.C. 2007] [holding that where a student missed a 'handful' of speech-language therapy sessions as a result of the therapist's absence or due to the student's fatigue, nevertheless, the student received consistent speech-language therapy in accordance with his IEP, and the district's failure to follow the IEP was excusable under the circumstances and did not amount to a failure to implement the student's program]).

Section 504 provides that “[n]o otherwise qualified individual with a disability . . . shall, solely by reason of his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal assistance.” 29 U.S.C. §794(a). Section 504 and the IDEA are often seen as “complementary” statutes that, to a degree, mandate parallel requirements on schools to provide special education and related services. See R.B. ex rel. L.B. v. Bd. of Educ. of City of New York, 99 F. Supp. 2d 411, 419 (S.D.N.Y. 2000) (citations omitted). The Section 504 regulations clarify the nature of the prohibited discrimination. 34 C.F.R. § 104.4(b)(ii)-(iii). In addition, the Section 504 regulations place similar and even parallel requirements on schools to provide a FAPE. See 34 C.F.R. §§ 104.33-104.37.

The burden of proof to establish that a FAPE has been offered to the Student is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85; M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 [S.D.N.Y. Aug. 27, 2010]).

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if :

1. the services offered by the board of education were inadequate or inappropriate;

2. the services selected by the parents were appropriate; and

3. equitable considerations support the parents' claim. (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).

Generally, in applying the three-prong standard in a tuition-reimbursement case enunciated by the Supreme Court of the United States in the Burlington and Carter decisions above-cited, it is necessary, in consideration of the issues presented, to first determine whether or not the School District offered the Student a free, appropriate public education (FAPE). The burden of establishing that it did so rests upon the District (N.Y.S. Education Law§4404). Under the guidelines established by Burlington and Carter, if a determination is made that District did in fact offer the Student a FAPE for the relevant school year, the inquiry into the Parent’s request for tuition reimbursement for the unilateral placement would cease; once a District has offered FAPE, a parent’s right to the requested relief of tuition reimbursement must be denied. Similarly, if it is determined that the District failed to establish that it provided a FAPE to the Student, then a further determination must be made as to the appropriateness of the Parent’s unilaterally-selected school. The burden of establishing such appropriateness falls upon Parent (N.Y.S. Education Law §4404). See also Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir. 2007), which held that “no one factor is necessarily dispositive in determining whether parents’ unilateral placement is reasonably calculated to enable the child to receive educational benefits. 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”. Similarly, Parents need not show that the placement provides every special service necessary to maximize the student's potential. Frank G. v. Bd. of Educ., 459 F.3d 356, 364 (2d Cir. 2006).

Should the Parent fail to establish the appropriateness of the unilaterally-selected facility, Parent’s request for relief must be denied. If, however, the Parent meets such burden, and the unilaterally-selected educational facility is determined to be appropriate, a review of the equities must be undertaken to determine whether equitable considerations favor an award of relief to the parent, a necessary prerequisite for the awarding of such equitable relief. In the absence of evidence demonstrating that parents failed to cooperate in the development of the IEP, or otherwise engaged in conduct that precluded the development of an appropriate IEP, or failed to give proper notice, equitable considerations generally support a claim of tuition reimbursement. Application of a Child with a Disability, Appeal No. 04-049.

ANALYSIS

As noted above, even in the case where a parent seeks tuition reimbursement for a unilateral placement of a child, the DOE still has the initial burden of proof to establish that a FAPE has been offered to the Student for the school year at issue. If such burden is not met, the parent must then prove the appropriateness of the unilateral placement. There must then be an examination of equitable factors before a final determination may be made.

The first area of examination, therefore, is whether the DOE provided a FAPE to Student for the 2022/23 school years.

In that regard, it is noted that the DOE presented no evidentiary or documentary evidence whatsoever. Regarding the IEP created for Student for the 2022/23 school year (IHO Ex. II), no testimony was provided by any of the DOE participants of the CSE team to establish what criteria was utilized in its placement recommendation, or to establish in any other manner that the recommendations contained in such IEP were reasonably calculated to allow Student to make progress appropriate in light of his particular circumstances and the specific findings contained in the aforementioned neuropsychological evaluation report. Nor was any witness testimony presented to establish that goals and management needs, to the extent contained in the IEP for the 2022/23 school year, were appropriate to address Student’s particular educational deficits and needs. In addition, to the extent that a School Location Letter was provided to Parent (not entered into the hearing record), no testimony was presented to establish that any such recommended school placement was able to fully implement the recommendations contained in the IEP at issue, nor that a seat was even available for Student for the 2022/23 school year.

For all of the above cited reasons, it is determined that the DOE has failed to establish that it has provided a FAPE for Student for the 2022/23 school year.

Regarding the appropriateness of the unilateral placement, testifying first for Parent was the Director of Education at the unilateral placement, whose duties included the development and overseeing the implementation of the curriculum, conducting trainings for teachers and staff, working with teachers and staff to develop Functional Behavioral Assessments (“FBAs”) for students, and helping to create the Behavior Intervention Plans (“BIPs”) for such students, and whose testimony appeared by affidavit dated August 2, 2023 (Parent Ex. BB, par. 5). By such affidavit, the witness further described the unilateral placement as an independent special education school focused largely on the needs of students with autism and related disabilities in need of a highly individualized program of Applied Behavior Analysis (“ABA”), providing an ABA program implemented by highly trained staff, including Board Certified Behavior Analysts (“BCBA”), small class structure that allows provisions of 1:1 instruction, a verbal behavior component, social skills training, self-management instruction, appropriate levels of speech/language services incorporated throughout the day, occupational therapy at appropriate levels, co-treatment sessions so related services goals are included in classroom activities and objectives, a sensory gym, inclusion opportunities with non-disabled peers, opportunities to participate in activities in the community, transdisciplinary group instruction, participation in music therapy, parent training and education, and support for other family members (Parent Ex. BB, par. 6). The witness described ABA as the science in which the procedures derived from the principles of behavior are systematically applied to improve socially significant behavior to a meaningful degree and to demonstrate empirically that the procedures employed were responsible for the improvement in behavior, with data collection that is analyzed to demonstrate what teaching tactics are most effective in changing a student’s learning, behavior, communication, and participation in the larger community (Parent Ex. BB, par. 7).

Regarding Student in particular, the witness described her familiarity with him due to his having attended the unilateral placement the prior school year as well, and that she was involved in Student’s admissions review for the 2022/23 school year as well as the previous year, took part in developing his program over both school years, co-supervised his classroom and teacher, and observed him during instruction. The witness stated that she also reviewed Student’s neuropsychological evaluation provided by Parent as well as his behavioral history, noting that both sources of information indicated Student’s need for direct instruction in a data-driven ABA program and an individualized behavior intervention plan, as well as related services as part of his education plan. The witness noted Student’s history of having made progress with ABA, as indicated on his neuropsychological assessment. She described Student as presenting with global delays and weaknesses across academics, communication skills, social development, self-help, self-management skills and with sensory regulation, requiring 1:1 instruction in all areas to acquire new skills as well as a variety of tactics such as response and stimulus prompts that needed to be systematically faded and a dense schedule of reinforcement. She further testified that his attention to desktop materials was fleeting, required frequent movement breaks, required prompting to engage with peers, demonstrated difficulty remaining in his seat for work and required frequent access to reinforcement in the form of breaks and social and tangible reinforcement during both 1:1 instruction as well as in groups (Parent Ex. BB, par. 8-9).

The witness testified that for the 2022/23 school year, Student was placed in a class with a 1:1 adult to student ratio, with seven students, one lead teacher and six Applied Behavior Analysis (ABA) instructors, with such classroom co-supervised by the witness. His program consisted of a six-hour day and provided five hours each day of 1:1 instruction, including groups where he required 1:1 instructional support from an ABA instructor or lead teacher and one hour of instruction for lunch and leisure skills with a 2:1 instructional ratio. All staff in the classroom were trained in the principles of behavior analysis, behavior management, data collection and analysis, with all faculty members additionally receiving ongoing training and supervision, including bi-weekly faculty training, and observations from the lead teacher, training team and supervisor. The witness stated that Student’s program was individualized to address his needs, as determined from his prior reports as well as through criterion-based assessments, including the Assessment of Basic Language and Learning Skills Revised (ABLLS-R) conducted by the unilateral placement. Such ABLLS-R assessment indicated Student’s difficulty with language skills, play and leisure, group skills, writing and social skills. Goals were then identified and designed to address those deficits and corresponding programs were put into place within Student’s daily programming, individualized to meet his needs and aligned with New York state alternative learning standards, including in the areas of Academics (reading, math, language arts, writing), Social Skills (attention to task, cooperative play, conversational units), Verbal behavior (communication behavior, joint attention and perspective taking), Self-management (functional daily-living skills), and Community of reinforcers (interests in age-appropriate leisure activities and hobbies) (Parent Ex. BB, par. 10-14). Also provided were speech and language therapy 3x30x1, 1x30, group and 1x30 group during lunch, all with 1:1 support from an ABA instructor, to address receptive, expressive, and pragmatic language skills deficits as well as expanding play skills, occupational therapy, 2x30x1 and 1x30, group, with 1:1 support from an ABA instructor, to address self-care, sensory regulation, fine motor skills, and visual perceptive skills, and parent counseling and training to his Parents (Parent Ex. BB, par. 15-17).

The witness also testified to Student’s numerous behaviors which interfered with his learning and participation in class, including aggression towards peers and adults, flopping and object throwing. A functional behavior assessment (FBA) was conducted, utilizing direct observational data as well as indirect measures, including the Functional Assessment Screening Tool (FAST), a 16-item questionnaire that examines the antecedent and consequences that may be correlated with the problem behavior, with outcomes arranged into four function categories that maintain problem behavior, all of which helped to identify the specific social, environmental, communication and academic factors that were associated with Student’s target behaviors that interfered with his ability to participate in education, social opportunities, and learning. As a result, a subsequent behavior intervention plan (BIP) was created that applied instructional strategies to functionally replace the target behaviors, all of which resulted in improvements in Student’s behaviors (Parent Ex. BB, par. 19-22).

The witness testified that Student made progress across all domains during the 2022/23 school year, through a dense schedule of reinforcement, high rates of redirection to attend to tasks, frequent use of response and stimulus prompts to acquire and maintain skills, and systematic and slow fading of prompts, leading to independent responding. Specific areas of progress included counting, identifying mathematical symbols and concepts, expanded decoding and comprehension skills (taught through a combination of phonics-based instruction and sight word recognition), letter-sound production, recognition of sight words, reading comprehension skills, improved handwriting of curved line letters, improved verbal communication, improvement in social skills, increased understanding of language, improvement in maintaining attention and listening skills, and improved social skills with reciprocal interactions. In the area of self-management/self-help skills, Student made progress in the areas of waiting for preferred items or waiting on line, preparing for the school day on arrival and preparing for dismissal, mastering dressing and demonstrating improvement in handwashing, identifying outdoor community signs including “walk” and “don’t walk” or “stop”, and following other directions while in the community. The witness testified that Student also made progress in his learning skills necessary to participate in small group instruction, such as attending to a group leader and following his/her direction, participating in a specific group activity, manding for needed items during the group activity, and raising his hand as appropriate.

In the area of language, the witness stated that Student demonstrated progress across all domains of language including receptive and expressive language, pragmatic language, play and speech skills, including progress in following multi-step directions, understanding negation, demonstrating an understanding of same/different, and understanding temporal concepts related to the time of day and/or season, with specific goals that focused on improving his ability to use varied language and expanding his language using phrases and sentences to describe picture scenes or videos and expanding his language by learning to describe and request objects using adjectives. He also worked on both responding to and asking wh-questions as they related to picture scenes, videos and in vivo scenarios within the classroom or therapy area, as well as focusing on improving his motor speech skills. His pragmatic language goals focused on improving his ability to request assistance utilizing varied phrases, directing the actions of others using phrases such as “get it” and “take it out”, and terminating an ongoing activity utilizing the phrase “I’m done” or “finished.” His “play” language goal focused on improving his ability to comment on as well as direct the actions of others using phrases and sentence during a structured play activity using phrases such as “I like this” or “put in.” The witness stated that Student made steady progress in his language skills during the course of the 2022/23 school year.

Iin the area of occupational therapy, the witness testified that Student’s sessions focused on his sensory processing, self-care skills, gross motor coordination and fine motor coordination and precision, targeted to address Student’s sensory dysregulation, decreased motor control and bilateral coordination. Student worked on increasing his independence with functional dressing tasks including donning socks and shoes, donning an overhead shirt, donning a jacket and latching the mechanism before pulling up the zipper, and using a fork to increase his independence during mealtimes. Gross motor skills were also addressed during occupational therapy, including bilateral coordination, motor planning and eye-hand coordination skills needed to effectively participate in age-appropriate sport and leisure activities, as well as handwriting and finger dexterity (Parent Ex. BB, par. 23-42).

The witness also stated that Student required individual support and ABA to address his needs, as he struggled with academic, communication and social skills, and required prompting levels and systematic fading of prompts levels within his programming through the presence of 1:1 instruction from the lead teacher or ABA instructor. He also required daily analysis of his behavior data with an appropriate behavior intervention plan to appropriately address his behaviors, as well as research-based tactics for him to learn academically, all of which were provided by the unilateral placement which created a carefully designed instructional plan to ensure that learning was efficient for him (Parent Ex. BB, par. 43).

The witness concluded her direct testimony by stating that Student made progress at the unilateral placement during the 2022/23 school year across all domains with the supports that were provided for him there to address all of his complex needs (Parent Ex. BB, par. 44-45).

The DOE declined to cross examine this witness.

Parent, whose testimony appeared by affidavit dated July 31, 2033 (Parent Ex. AA), stated that Student has challenges that interfere with his learning and ability to develop appropriate relationships with peers, including deficits in his cognitive skills, substantial difficulties with selfregulation, attention, language and communication, and expressing his needs, and deficits in his social and adaptive skills. She further stated that he has a history of struggling with impulsivity, hyperactivity and attending to tasks, with behaviors such as flopping on the floor, throwing objects, and/or engaging in tantrums if he does not get a preferred item or if a preferred activity is withdrawn, with such behaviors oftentimes escalating into elopement and aggressive behaviors, including hair pulling and hitting (Parent Ex. AA, par. 3). Parent noted Student’s receipt of ABA therapy when he was two years old, during which time he learned to respond to his name, interact with his peers and dance to music, none of which he was able to do prior, and from which he regressed when he attended a public school 12:1:2 placement without ABA therapy the following year (Parent Ex. AA, par. 5-6). Parent also testified that Student was reevaluated in February 2022 to obtain a better understanding of his gross motor needs, with such evaluation finding that Student suffered general gross and fine motor delays, low muscle tone, impaired coordination, and poor motor planning, and with the recommendation that he receive 1:1 individual physical therapy 2-3 times per week, a finding with which the DOE had agreed in its recommendation of physical therapy on Student’s most recent IEP created for the 2022/23 school year. Parent further testified that Student was provided with the recommended physical therapy 2x30x1 by a private agency, which addressed Student’s needs articulated above and with which Student made progress over the 2022/23 school year. Parent stated that she incurred out-of-pocket expenses for her insurance co-pays of $30.00 per session totaling $1,320.00 (Parent Ex. AA, par. 14-18).

Parent also testified that Student made progress at the unilateral placement during the course of the 2022/23 school year, where he benefited from the 1:1 ABA based instruction and occupational therapy and speech language therapy that he received there, with noted improvement in Student’s problem behaviors that had previously kept him off task in the classroom and interfered with his learning and ability to appropriately socialize with his peers. She also stated that Student’s communication skills, his ability to communicate his wants and needs, and his math and ELA skills also improved (Parent Ex. AA, par. 19).

Parent testified that she paid the entire 12-month school year tuition and seeks full reimbursement for such payment, minus any payments that have been thus far reimbursed through the pendency agreement entered into between her and the DOE (Parent Ex. AA, par. 20; 22).

Student’s Classroom Schedule and Classroom Goals (Parent Ex. K, L), Speech and Language Goals (Parent Ex. M), Occupational Goals (Parent Ex. N), Educational Progress Report (Parent Ex. O), Speech and Language Therapy Progress Report (Parent Ex. P), Occupational Therapy Progress Report (Parent Ex. Q), and Functional Behavioral Assessment and Behavior Intervention Plan (Parent Ex. R), all document an educational program specifically designed to address the academic, language, motor skills and behavioral needs of Student, as well as progress in all such areas, consistent with the testimony of Parent and Parent’s witness and, as fully set forth in the hearing record, need not be reiterated here.

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. See Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 102 (2d Cir. 2007, and that “the test for the parent’s private placement is that it is appropriate, not that it is perfect.” See Warren G. ex rel. Tom G. v. Cumberland County Sch. Dist., 190 F.3d 80, 84 (3d Cir. 1999); Board of Educ. v. Rowley, 458 U.S. 176 at 207 (1982). Based upon the evidence presented regarding Student’s progress in the areas of academics, social functioning, behavior and language, the hearing record supports that such burden has been more than amply met, establishing that Parent’s unilateral placement has provided “educational instruction specially designed to meet the unique needs of a handicapped child”. For all of the reasons set forth above, it is determined that the unilateral placement constitutes an appropriate educational placement for Student for the 2022/23 school year.

Finally, in reviewing the equities, no evidence was presented by the DOE to establish parental non-cooperation in the attempt to create an appropriate educational placement for Student for the 2022/23 school year, nor was any such claim of non-cooperation asserted by the DOE. Parent attended all relevant meetings, visited the recommended school, and provided timely written notice to the DOE of her disagreement with the educational placement created for Student for the 2022/23 school year. Accordingly, the equities are determined in favor of Parent.

The full tuition cost for Parent’s unilateral placement for the 2022/23 22 school year was $167,840.00 (Parent Ex. X). Parent has paid such tuition in full (Parent Ex. Y). Parent has received, as of the date of issuance of this Order, partial reimbursement for such tuition paid under the pendency agreement with the DOE, although the hearing record fails to establish the exact amount of reimbursement. Parent shall be entitled to reimbursement of that portion of tuition paid for the 2022/23/school year not reimbursed, as more fully set forth below.

Parent also seeks reimbursement for her net out-of-pocket costs for physical therapy provided to Student during the 2022/23 school year, less amounts already reimbursed through pendency payments (Parent Ex AA, par. 22). The unilateral placement did not offer physical therapy, so that Parent had to procure such services for Student outside of school, the expense for which was covered by Parent’s medical insurance, less Parent’s co-payments. Parent stated that her total co-pay outlay for Student’s physical therapy for the 2022/23 school year was $1,320.00. Student’s need for physical therapy is not in dispute, as indicated by the Physical Therapy Initial Evaluation Addendum (Parent Ex. F), the Physical Therapy Progress Notes (Parent Ex. S,T,U and

V) and the IEP itself, which recognized Student’s need for physical therapy and included a mandate of 3x30x1 for such therapy. As noted above, a parent need not demonstrate that a private placement furnishes every special service necessary to maximize their child's potential; rather, it need only show that the private placement is appropriate, not all inclusive or perfect.” See Warren

G. ex rel. Tom G. v. Cumberland County Sch. Dist., cited above. Student’s enrollment in an otherwise appropriate private school did not change or obviate his need for physical therapy, and his enrollment in such otherwise appropriate educational placement does not relieve the DOE of the obligation of ensuring such need being met. Accordingly, Parent shall be eligible for reimbursement of funds expended for the provision of physical therapy for Student for the 2022/23 school year, as more fully set forth below.

Regarding Parent’s request for a finding that Student requires specialized, limited-time transportation between home and school, there is no dispute that Student is entitled, as part of his appropriate educational placement, to transportation even when unilaterally placed and, consistent with an uncontested Office of School Health (OSH) Physician Review Form for Transportation Request (Parent Ex. E), to be provided on a limited-time (45 minutes maximum each direction) basis. See Educ. Law §§ 4401 [1]; 4402 [4][a]; see also Educ. Law§ 4401[2]; 8NYCRR 200.1 [ww], which provides that special education includes “specially designed instruction…and transportation, provided at no cost to the parents to meet the unique needs of a child with a disability,” and requires school districts to provide disabled students with “suitable transportation to and from special classes or programs”. See also Tatro, 468 U.S. at 891, 894; District of Columbia v. Ramirez, 377 F. Supp. 2d 63 [D.D.C. 2005]; see Transportation, 71 Fed. Reg. 46576 [Aug. 14, 2006]; "Questions and Answers on Serving Children with Disabilities Eligible for Transportation," 53 IDELR 268 [OSERS 2009]; Letter to Hamilton, 25 IDELR 520 [OSEP 1996]; Letter to Anonymous, 23 IDELR 832 [OSEP 1995]; Letter to Smith, 23 IDELR 344 [OSEP 1995]), which provides that “transportation must be provided to a student with a disability if necessary for the student to benefit from special education, a determination which must be made on a case-by-case basis by the CSE”, and that if the student cannot access his or her special education without provision of a related service such as transportation, the district is obligated to provide the service, "even if that child has no ambulatory impairment that directly causes a 'unique need' for some form of specialized transport" (Donald B. v. Bd. of Sch. Commrs., 117 F.3d 1371, 1374-75 [11th Cir. 1997] [emphasis in original]). Student’s IEP also mandated such limited-time, round trip transportation with fewer students. However, no testimony or evidence was presented by Parent to establish that such transportation was not provided by the DOE, or that Student required transportation otherwise not provided. Thus, while such roundtrip limited-time transportation remained an integral component of Student’s educational placement for the 2022/23 school year, no specific relief needs to be awarded in this particular case.

ORDER

NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS

HEREBY ORDERED:

1. The DOE has denied Student a FAPE for the 2022/23 school year.

2. The appropriate educational placement for Student for the 12-month 2022/23 school year is determined to be Parent’s unilateral placement, together with the provision of physical therapy, 3x30, individually, and limited-time (no more than 45 minutes) roundtrip bus transportation with reduced number of students.

3. The DOE shall reimburse Parent for tuition paid to the unilateral placement for the 2022/23 school year, in the amount of $167,840.00, minus any payments already reimbursed to Parent under a separate pendency agreement between Parent and the DOE, upon Parent providing the enrollment contract, Student’s proof of attendance thereat, and proof of such payments made by Parent to the unilateral placement.

4. The DOE shall reimburse Parent as and for her insurance co-payments for Student’s physical therapy received during the 2022/23 school year, in the amount of $1,320.00, minus payments, if any, already reimbursed to Parent under a separate pendency agreement between Parent and the DOE, upon Parent providing the billing statements for such physical therapy during the 2022/23 school year and proof of such payments made by Parent for such service.

5. The DOE shall comply in all respects with this Decision and Order.

Dated: August 19, 2023

BRUCE S. OLINGER

Impartial Hearing Officer

APPEAL RIGHTS

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 the 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.

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

A. Hearing Request, dated 8/16/22 (13 pages)

B. Neuropsychological Evaluation, dated 11/23/20 (17 pages)

C. Letter of Support from Occupational Therapists, undated (3 pages)

D. Letter of Support from BCBA, dated 2/12/21 (1 page)

E. OSH Physician Review Form for Transportation Requests, dated 4/26/21 (2 pages)

F. Physical Therapy Initial Examination Addendum, dated 2/5/22 (3 pages)

G. Ten Day Notice, dated 6/24/22 (5 pages)

H. Ten Day Notice Confirmation, dated 6/24/22 (1 page)

I. [redacted] Program Description, 2022/23 (9 pages)

J. [redacted] Functional Behavior Assessment and Corresponding Behavior Intervention Plan, dated 12/2021 (10 pages)

K. [redacted] Class Schedule, dated 2022/23 (1 page)

L. [redacted] Classroom Goals, dated 2122/23 (6 pages)

M. [redacted] Speech and Language Goals, 2022/23 (2 pages)

N. [redacted] Occupational Therapy Goals, 2022/23 (3 pages)

O. Educational Progress Report, dated 12/2022 (9 pages)

P. [redacted] Speech and Language Therapy Progress Report, dated 12/2022 (5 pages)

Q. [redacted] Occupational Therapy Progress Report, dated 12/2022 (5 pages)

R. [redacted] Functional Behavior Assessment and Corresponding Behavior Intervention Plan, dated 5/2023 (10 pages)

S. Physical Therapy Progress Note, dated 8/9/22 (4 pages)

T. Physical Therapy Progress Note, dated 10/15/22 (3 pages)

U. Physical Therapy Progress Note, dated 12/8/22 (4 pages)

V. Physical Therapy Progress Note, dated 4/23/23 (4 pages)

W. Physical Therapy Session Balance Report, dated 2/8/23 (4 pages)

X. [redacted] Tuition Agreement Summary Report, dated 4/28/22 (5 pages)

Y. [redacted] Tuition Affidavit, dated 7/6/23 (1 page)

Z. [redacted] Resume, undated (9 pages) AA. Affidavit of Testimony: [redacted], dated 7/31/23 (4 pages)

BB. Affidavit of Testimony: [redacted], dated 8/2/23 (18 pages)

DEPARTMENT OF EDUCATION

NONE

IMPARTIAL HEARING OFFICER

I. Order

of Non-Consolidation, dated 8/17/22 (5 pages)

II. IEP, dated 5/20/22 ( pages)

III. Orders Extending the Compliance Date, various dates (11 pages)