New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 577868 - NYC: 230080

REDACTED

FINDINGS OF FACT & DECISION

Case No.: 230080

Student’s Name: [Redacted] (referred to as “Student”)

Date of Birth: [Redacted]

District: [Redacted]

Hearing Request by: [Redacted] (referred to as “Parent”)

School: [Redacted] (referred to as “Private School”)

Date of Complaint: August 25, 2023

Hearing Dates: March 10, 2023

Actual Record Close Date: April 26, 2023

Decision Date: May 10, 2023

Hearing Officer: Vanessa M. Gronbach, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

MARCH 10, 2023

For the Student:

[Redacted], Esq., Parent Attorney

[Redacted], Parent Student

[Redacted], Private School Director

For the Department of Education:

[Redacted], Esq., District Representative

[Redacted], Special Education Teacher

[Redacted], School Psychologist

ISSUES

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) through the Parents’ Due Process Complaint (“DPC”) filed on or about August 24, 2022, regarding the 2022/23 school year (P-Ex. A) ^[1]. The DPC alleged that the District denied the Student a Free Appropriate Public Education (“FAPE”) as required by the Individuals with Disabilities Education Act (“IDEA”) by not providing an appropriate program and placement for the 2022/23 school year (P-Ex. A). The Parent has requested tuition reimbursement / direct payment for their unilateral placement of the Student at the Private School; special transportation; and related service authorizations for speech, occupational therapy, and a paraprofessional (P-Ex. A).

PROCEDURAL HISTORY

The undersigned was appointed as hearing officer in this matter on August 26, 2022. A prehearing conference was held on September 30, 2022, to discuss the issues in the case. A hearing was scheduled for March 10, 2023, and was completed on that day (See, Transcripts). ^[2] The District presented two witnesses and exhibits. The Parent presented exhibits^[3] and two witnesses. The record closed on April 26, 2023. There were six extensions of the compliance timelines granted by this Hearing Officer, to allow for the District to investigate the matter and then to accommodate witnesses.

FINDINGS OF FACT

The Student is a [Redacted] year old student who attends the Private School during the 2022/23 school year (P-Ex. A). The Student is diagnosed and classified with Autism (P-Ex.E).

The Student was enrolled in the public school from kindergarten until June 2019, her third grade year (P-Ex. V-1). The Student had shown signs of extreme anxiety and stress at the public school, and although the Parent raised concerns and tried to work with the school, they did not see meaningful change (P-Ex. V-1). In September 2019, the Parents unilaterally enrolled the Student at the Private school (P-Ex. V-1). Right away, the Parent noticed behavioral and emotional improvements, her anxiety decreased, and she began looking forward to going to school (P-Ex. V-1).

The Parent attended an IEP meeting for the 2022/23 School Year by telephone on April 6, 2022 (P-Ex. E; V-1). The District’s School Psychologist (“SP”) for the Committee on Special Education (CSE) testified that she participated at the IEP meeting (D-Ex. 3-2). The Purpose of the meeting was for the Student’s three year review and the IEP team reviewed the psychoeducational evaluation (D-Ex. 3-2; P-Ex. E; F; V-1). The SP personally conducted the Psychoeducational Evaluation on January 18, 2022 (D-Ex. 3-2). The SP testified that the IEP team reviewed and considered: the psychoeducational evaluation, teacher progress report, the OT progress report, and the speech language therapy progress report (D-Ex. 3-2).

The evaluation revealed that cognitively, the Student was severely delayed, with a full scale IQ of 41, which showed that the Student is intellectually disabled and needs a lot of academic support (D-Ex. 3-3; P-Ex. F). Academically, the Student’s word reading fell within the 2nd percentile of her peers, her reading comprehension was severely delayed, and she was able to decode words but not answer questions (D-Ex. 3-3). According to the SP, the Student was limited in her abilities in the severely deficient range and nowhere near where she should be at her age, compared to typically developing peers (D-Ex. 3-3). The testing showed that the student required a great deal of support from adults, a multisensory, repetitive approach to learning, and a small class ratio with adult support throughout the school day to make meaningful progress (D-Ex. 3-3). The Student was also given the Vineland to assess her adaptive behavior and socialization and revealed that the Student was on the lower range across all testing domains, had a very low communication score, a very low score for daily living skills and for socialization (D-Ex. 3-3-4). The Vineland was completed by the teacher (P-Ex. F).

The SP testified that part of her evaluation included a clinical interview which could not be completed because the Student was not cooperative, her answers were limited, and she did not give her a lot of details (T. 92). The SP attributed it to the fact that open ended questions were hard for children on the spectrum (T. 92-93). There was a paraprofessional who facilitated and helped the Student during the evaluation (T. 93). When asked about regression, the SP testified that any child would regress when they are out of school for two weeks, especially children on the spectrum (T. 94). According to the Director of the Private School, the SP conducted the evaluation on the Student’s first day back to school after being out for a month, which she was aware of (P-Ex. U-5-7). The SP testified that she was aware that the Student had a speech generating communication device, but she believed it was given to her as a reward and she took it away during the evaluation in order to get her to concentrate and respond to her questions (T. 94-95). The SP testified that the Student is verbal, and it was not necessary (T. 95).

The CSE used the information to develop the PLOP to formulate all of the recommendations in the IEP (D-Ex. 3-4). The SP testified that the IEP team had sufficient information about the student’s disability, issues, needs, challenges, strengths, and abilities to allow the CSE to formulate an IEP that would provide the student a FAPE (D-Ex. 3-2). At the meeting, the Parent requested that the IEP reflect their decision to relax the Student’s summer program and to provide a related-services only program for the summer, however that was not reflected on the IEP (P-Ex. E; V-1). The IEP recommended placement in a 6:1:1 specialized class with related services of occupational therapy, parent training and counseling, and speech-language therapy along with a 1:1 Health Paraprofessional (D-Ex. 3-2; P-Ex. E).

The IEP team believed the 6:1+1 class would benefit the Student and provide her with a small and supportive classroom and allowed for a high degree of individualized attention and intervention (D-Ex. 3-3). The SP testified that the Student’s psychological scores for cognitive and academic achievement, along with the progress reports, showed that the Student needed a 12-month program to avoid significant regression over the summer (D-Ex. 3-3). The team recommended speech language therapy to address the Student’s expressive and receptive language deficits, along with pragmatic language delays (D-Ex. 3-4). The recommended speech generating device would also benefit the student when communicating (D-Ex. 3-4). The team recommended occupational therapy to address the Student’s deficits in fine motor skills, visual perceptual and motor skills, self-care, assisted daily living skills, and coordination (D-Ex. 3-4).

The IEP recommended 12 goals, which were written by the CSE special education teacher (D-Ex. 3-4). According to the SP, the goals were discussed at the IEP meeting and were made in collaboration with the parent and Student’s teacher (D-Ex. 3-4). The goals for the related services of occupational therapy and speech language therapy were written by the Student’s related service providers who serviced the student during the 2021/22 school year and were targeted to the Student’s need to make progress (D-Ex. 3-4-5). The academic goals for English Language Arts, writing, and math were based on the teacher progress report, oral feedback from the Student’s teacher at the IEP meeting, and the parent’s expressed concerns on the student’s strengths and weaknesses (D-Ex. 3-5). The IEP team considered less restrictive and more restrictive special education programs and settings (D-Ex. 3-5). According to the SP, the 6:1:1 program with the supports and management needs recommended in the IEP, is the least restrictive environment for the Student that will provide educational benefit (D-Ex. 3-5).

According to the Parent, the IEP team did not seem to acknowledge the dramatic difference in the Student since she left the public school placement to the present, and the IEP team never asked her to participate in updating the profile presented in the IEP (P-Ex. V-2). Although the Vineland was completed by the teacher, the Parent was not asked to submit information about the Student’s adaptive behavior (P-Ex. V-2). According to the SP, teachers are with students more than parents and can provide sufficient information and it is not necessary to gather information from the Parent, since the Parent participates in the IEP meeting (T. 95-96). The Parent was concerned that her academic goals were not meaningfully changed (P-Ex. V-2). The Student’s need for ABA was apparent, but the IEP team refused to make provisions in the IEP for the Student to be provided with ABA (P-Ex. V-2). Overall, the Parent did not believe the IEP could serve the Student (P-Ex. V-2).

On or about June 13, 2022, the received the Prior Written Notice Package from the District, which included a school location from the same school the Student was removed from (D-Ex. 1; P-Ex. V-2). The Parent asked for another placement and received another school location (D-Ex. 2; P-Ex. K; V-2).

The Special Education Teacher and IEP Coordinator (“SET”) for the District testified regarding the recommended 6:1:1 public school location (T. 53-54). The public school location was described as an offsite school with multiple self-contained classrooms and one inclusion classroom (T. 55-56). There was one inclusion class, one 6:1:1 class, and two 12:1:1 classes (T. 58). A student in those programs would have opportunities with nondisabled peers during lunch, assemblies and other extracurricular activities (T. 58). The recommended public school supports students with autism, intellectual disabilities, and multiple disabilities (T. 60). It also provides students with related services of speech, Occupational Therapy, Physical Therapy, vision services, orientation, mobility and counseling (T. 60). Although, the SET confirmed that Speech and OT shared a large multipurpose room that is sectioned off with partitions, but no sound proofing (T. 60, 64-65). The SET testified that she reviewed the Student’s documents and that the school had a spot available for the 2022/23 school year (T. 62). Based on her review of the Student’s records she believed the recommended school would have been able to implement the IEP and provide toileting supports (T. 62-63).

The Parent was able to visit the program during the summer session and determined that it was not appropriate for many reasons, including that the therapies were offered in an open room without soundproof barriers, the school did not have a toilet training program, and there was no inclusion, children were actively discouraged from interaction in the classroom (P-Ex. V-2). The Parent sent a letter to the District summarizing their concerns, however the Parent never received another placement from the District (P-Ex. V-2).

The Parent unilaterally placed the Student at the Private School for the 10-month 2022/23 school year (P-Ex. V). The Student did receive related services only, at the Private School during the summer of 2022 (P-Ex. V). The Parent has not had to pay tuition this school year due to a pendency agreement and testified that it would be a hardship to pay the tuition up front and wait for reimbursement if they were to prevail (P-Ex. T; V-2).

CONCLUSIONS OF LAW

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

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

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

In Endrew F. v. Douglas County School District, 580 U.S. __, 14 (2017), the Court held that, “[t]o meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances, as a focus on the particular child is at the core of the IDEA. The instruction offered must be “specially designed” to meet a child’s “unique needs” through an “individualized education program.” §§1401(29), (14) (emphasis added), to reflect the fact that a contemplated IEP must be focused on the “particular child that is at the core of the IDEA”. In such case, the school is still required to ensure the student is given an IEP that requires not just academic but also functional progress and, although the goals may differ for students, each child must have an IEP that includes goals and services to enable a child to make both academic and functional progress. The court further stated that an IEP “is not a form document. It is constructed only after careful consideration of the child’s present levels of achievement, disability, and potential for growth” §§1414(d)(1)(A)(i)(I)–(IV), (d)(3)(A)(i)–(iv), and that “a student offered an educational program providing “merely more than de minimis progress” from year to year can hardly be said to have been offered an education at all.”

The Court in Endrew further stated that, “[t]he IDEA demands more. It requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Although the Supreme Court declined to elaborate on the definition of “appropriate progress” from case to case, it stated that, “the adequacy of a given IEP turns on the unique circumstances of the child for whom it was created.” Finally, The Supreme Court in Endrew declined to hold, as it declined to hold in Rowley, that “every handicapped child who is advancing from grade to grade . . . is automatically receiving a [FAPE].” Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty v. Rowley, 458 U. S. 176, 203, n. 25 (1982). A Student’s “IEP need not aim for grade-level advancement. But his educational program must be appropriately ambitious in light of his circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives.” Endrew F. v. Douglas 580 U.S. ___ (2017). “It cannot be the case that the Act typically aims for grade-level advancement for children with disabilities who can be educated in the regular classroom, but is satisfied with barely more than de minimis progress for those who cannot.” Id.

Here, although the District presented a case, it failed to meet its burden in demonstrating that FAPE was provided to the Student for the 2022/23 school year. The District failed to explain how the recommendations in the IEP were appropriate for this Student. Although the SP testified that the recommendations were based on the results of the psychoeducational evaluation, that evaluation appears to have underestimated the Student’s abilities in the classroom and in the school. The evaluation was conducted after a four week absence from school, and the SP admitted that students on the spectrum regress after a two week break (T. 94). The Director had told the SP that it was probably not the best day to test the Student, but it was completed regardless (P-Ex. U-6). The SP also conducted the evaluation without the Student’s AT device, which was a speech generating communication device, mandated on the Student’s IEP for the 2022/23 school year, and the 2021/22 school year (P-Ex. C-12; E-27). The SP believed it was given to the Student as a reward and she took it away during the evaluation in order to get her to concentrate and respond to her questions (T. 94-95). Although the SP testified that the Student was verbal, the reports indicate that she had limited verbal communication and at times was unintelligible (P-Ex. H; I). Based on the possible regression, which is documented, and the Student’s inability to use her communication device to communicate her responses, it is unclear if the results of the evaluation were an accurate representation of the Student’s skills.

In assessing the Student’s adaptive behavior, the SP only gathered information from the teacher and not the Parent (T. 94). The SP testified that teachers are with students more than parents and can provide sufficient information and therefore, it is not necessary to gather information from the Parent, since the Parent participates in the IEP meeting (T. 95-96). The SP admitted that the Student’s behavior could be different in different environments, but did not ask the Parent to complete the Vineland to gather additional information, especially on a Student who had had significant social, emotional, and behavior issues in previous years (T. 96-97).

The IEP did not include the ABA or 1:1 services the Student had been receiving in school and how if at all, the ABA or 1:1 would continue in the public school location. The Parent discussed her concerns regarding the ABA and 1:1 at the IEP meeting but, it was not included in the IEP (P-Ex. E). Although the CSE is not required to proscribe to a particular methodology, here the IEP, and the record, was silent as to any strategies or methodologies that would be used that would address the Student’s diagnosis and her deficits. The IEP failed to document any progress the Student had made. Additionally, the recommended goals for OT the 2022/23 school year were the same as the goals from the year before; and her reading, writing and ADL goals were similar (P-Ex. C-7; E-9)

I also find that the testimony regarding the proposed public school location was generic. The witness did not know the Student and based her opinion that the placement was appropriate, on the flawed IEP. There was no evidence as to how the academic instruction would be provided, what accommodations or modifications would be provided and how; or how they would address her emotional and behavioral needs upon the transition to the public school. Based on all of reasons detailed above, I find that the District did not provide the Student with FAPE for the 2022/23 school year.

PARENT’S BURDEN

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

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

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

“Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child’s individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child’s potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.” (Gagliardo, 489 F.3d at 112, quoting, Frank G., 459 F.3d at 364-65). Finding that the District did not provide FAPE to the student during the 2022/23 school year, the burden now shifts to the Parent to prove the appropriateness of the Private School. After reviewing the testimony and evidence provided, I find that they have met that burden. The Parent’s burden is to demonstrate that the Private School provided educational instruction specially designed to meet the unique needs of the Student, which is supported by such services as are necessary to permit the child to benefit from instruction.

The Director of the Private School testified by affidavit regarding the Student and the Private School (P-Ex. U). The Director testified that her responsibilities at include overseeing the elementary school program and supervising and train school staff (P-Ex. U-2). The Private School was described as a not-for-profit organization that supports special education programs in three schools: a state-approved preschool program, and two private school-aged programs (P-Ex. P; U-2). These schools afford students many opportunities for inclusion with their typically developing peers (P-Ex. P). The goal of the Private School is to foster academic growth and development, teach social and emotional skills, and enhance communication, prevocational and vocational skills (P-Ex. P-2).

The Private School employs head teachers, assistant teachers, school psychologists who are also Board Certified Behavior Analysts/NYS Licensed Behavior Analysts, and administrative staff (P-Ex. U-3). The highly trained, full time, special education teachers provide both group and 1:1 instruction in all curricular areas (P-Ex. P-2). Professional development is offered to staff in full-day or half-day sessions at the school and they have the opportunity to attend conferences (P-Ex. U-13). In-service professional development sessions mandated for the Private School teachers are made available to the related service providers and paraprofessionals as well (P-Ex. U-13). The behaviorist trains staff on ABA and behavior intervention plans (P-Ex. U-13). Individual educational goals and objectives are developed for each student with an emphasis on functional academics, language and communication skills, developing social relationships, activities of daily living, prevocational and vocational skills (P-Ex. P-2). The Private School’s elementary school is for students between the ages of 5 and 14 (P-Ex. U-3). For the 2022/23 school year, there are 37 students enrolled in the program, with six classrooms (P-Ex. U-3). All students have global delays and all classes provide differentiated instruction with modifications and accommodations based on their individualized needs (P-Ex. U-3).

The Student began attending the Private in September 2019 (P-Ex. U-3). The Student is a ten-month student because the Parent opted to give her a break over the summer, but the Student still receives related services at the Private School over the summer (P-Ex. U-3). The Director testified that the relaxed summer program provides time for the Student to decompress from the challenges of school, while still maintaining her routine to and from the building and her skills through therapies (P-Ex. U-3). The Student was described as having significant delays in socialization, academic skills and activities of daily living and requires extensive support within the classroom (P-Ex. Q; U-4). Students are grouped according to their learning style and needs (P-Ex. Q; U-4). Although there are seven students in the class, the instruction is delivered in oneto-one or small group settings (P-Ex. U-4). Typically, there are fewer students in the class at any given time because students are removed from the classroom for their therapies (P-Ex. U-4). The Student works from a class schedule that is modified to account for her various related services and she has a dense schedule of intensive teaching, which focuses on goals through one-on-one direct teaching using ABA strategies (P-Ex. U-4). The teacher keeps a data book, and data is taken consistently throughout the day on each goal (P-Ex. U-4). The Student’s teacher has a master's degree in special education and is a New York State certified teacher in general and special education (P-Ex. U-4).

The Student is a [REDACTED]-year-old girl who enjoys socializing with peers and although she prefers to use spoken language, she is often difficult to understand, and uses an AAC device with her teachers to be better understood (P-Ex. U-5). She requires the assistance of a paraprofessional because she is unaware of danger however, she is able to navigate throughout our building independently (P-Ex. U-5). The Student is taught using ABA, which she requires to learn new skills (P-Ex. U-5). She requires one-on-one attention to engage in learning, and very structured and systematic teaching procedures that are faded over time so that she does not become prompt dependent (P-Ex. U-5). The Student needs the same level of structure for practicing acquired skills (P-Ex. U-5).

The Director reviewed the Student’s IEP for the 2022/23 school year (P-Ex. E; U-5). The Director testified that she found the IEP to be lacking based on a sparse three year evaluation (which was completed on the Student’s first day back to school after being out for a month); academic goals that were essentially unchanged from the goals for the previous years (despite reports that the Student had made excellent progress over the year, accomplished goals, and needed new goals to align with her developing skills); and the goals lacked baseline information about the Student’s skills or ways of measuring progress (P-Ex. C; D; E; U-5-7). According to the Director, it was unclear if the Student used her communication device during the evaluation, which would have underestimated her skills (P-Ex. U-6). It also seemed that the evaluator tried to get the Student to write with her hands instead of with the device, which was not a preferred method of communication for her and set a sour tone for the evaluation (P-Ex. U-6).

The Private School developed it’s own set of goals for the Student that exceeded or supplemented the IEP goals issued by the District, and they designed educational objectives that would impart specific skills for the student (P-Ex. R; U-8). They take data on those skills throughout the course of the day, analyze that data, and we revise the methodology and the objectives as necessary, throughout the course of the school year, based on how the Student performs and what the data indicates (P-Ex. U-8). The academic program used is based on the [Redacted] curriculum, which is the overriding curriculum for the academics in the school (P-Ex. U-8). In reading, the Student is provided 1:1 instruction using the [Redacted] Program (P-Ex. U-8). For language, another direct instruction program is used called [Redacted] (P-Ex. U-8). The direct instruction program uses strategies of ABA, concepts of fluency, and then recycles the material, which is a way to ensure the Student is maintaining the skills she previously mastered (P-Ex. U-8). They also work on the generalization of skills across settings and people (P-Ex. U-9). Data is recorded and analyzed to make sure that skills are being learned, and once the skill has been learned in an intensive way, it is brought into other environments (P-Ex. U-9).The Student is working in a one-to-one setting for most of the time and at times, there may be another student who is working next to her, with the teacher working between them, but the skills are presented individually (P-Ex. U-9). Built into the schedule is a variety of sensory activities and fine motor skills through art activities done typically within the classroom (P-Ex. U-9). Yoga focuses on balance and self­calming strategies, and breathing techniques (P-Ex. U-9). There is also a music therapist who helps the Student express herself and learn through music therapy (P-Ex. U-10). The social skills curriculum was designed primarily for students with autism but can be used for any students who requires specific instruction in socialization and social skills training (P-Ex. U-10). Staff are trained to identify appropriate social goals for students and then how to work on them (P-Ex. U-10). They work on ADL skills, following instructions, request help or items, handwashing, hygiene skills, and social skills with peers (P-Ex. U-10). The Student participates in an integrated lunch program with typically developing peers, they have outings into the community for field trips, and the Private School has a buddy program, where they invite students from other schools in or go to another school to work on art projects, sports or other activities (P-Ex. U-10). The Private School uses the community activities to deliver related services in a variety of settings for generalization, such as the Physical Therapist working with a student on ice skating, the Occupational Therapist working on lacing shoes or tying and untying (P-Ex. U-11). The behaviorist trains the service providers to implement behavioral interventions and plans, such as a token board, and a variety of reinforcers to help maintain attention during lessons (P-Ex. U-11).

The Student receives all of her related services within school through Related Service Authorizations issued by the District (P-Ex. U-11). Parents can choose to have them either in school or outside, with therapists who either come to the home or provide services at a center (P-Ex. U-11). The Student receives her services in school (P-Ex. U-11). The providers work with the teachers to schedule the sessions and to assure they are maximizing classroom time and getting in all of the related services, while maintaining the core academic program for the students (P-Ex. U-12). There is regular communication between the related service providers and the classroom teachers and other staff (P-Ex. U-12). Staff arrive at the school fifty minutes before students arrive to go over the day’s plan; and then again at the end of the day when staff can meet to review information and exchange ideas, to assure that the strategies and techniques carry over from one environment to another (P-Ex. U-12). OT is provided in either the gym with a fine motor area, the sensory area, or the ADL suite (P-Ex. U-12). The Physical Therapists use a combination of the large gym, and a smaller PT gym, where they have balls and balance beams and other equipment (P-Ex. U-12). The speech therapy room has three separate work areas for three separate clinicians to provide services, each area is divided with visual and sound barriers (P-Ex. U-12-13). The Private School also provides parent counseling in a group and individual basis throughout the year (P-Ex. U-13). With respect to the student’s progress at the Private Schools, a finding of progress is not required for a determination that a student's unilateral placement is adequate, but it is a relevant factor to be considered (Gagliardo, 489 F.3d at 115, citing Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21, 26-27 [1st Cir. 2002]). According to the Director, the Student made remarkable progress this school year (P-Ex. U-14). In math, the Student made progress in solving three-digit addition problems, double digit subtraction problems and telling time (P-Ex. U-14). The Student struggled to write answers to math problems but with the accommodations provided, the Student now solves those problems independently (P-Ex. U-14). In reading, the Student made progress in sequencing more complex stories and including more details and reading stories and answering multiple choice questions related to comprehension (P-Ex. U-14). The Student is typing words on her device to practice spelling and to clarify her spoken language (P-Ex. U-14). Socially, the Student enjoys engaging with peers during social and buddy activities (P-Ex. U-15). In 2019, the Student had very high levels of anxiety, would yell, scream and cry throughout the day which would escalate during transitions to and from the classroom, however now, the Student goes to school happily, willingly transitions from activity in the classroom, to and from therapies, and other areas of the school building (P-Ex. U-15).

The Parent believes the Private School program is an appropriate program for the Student (P-Ex. V-2). The Parent has seen the Student become happy, relaxed and able to learn (P-Ex. V-2). She now enjoys getting up in the morning to go to school (P-Ex. V-2). She has become engaged at home and in the community and behaves appropriately when out in public (P-Ex. V-2). Based on all of the above, I find that the Private School is an appropriate placement for the Student for the 2022/23 school year.

EQUITABLE CONSIDERATIONS

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

DECISION

Based on a review of the record and the facts mentioned above, I find that the District failed to provide the Student FAPE during the 2022/23 school year. I further find that the Parent’s unilateral placement at the Private School was appropriate and that the Parent is entitled to reimbursement / direct funding. I further find that the Student is entitled to the continuation of related services through RSA’s provided by the District; as well as use of an Assistive Technology device; and special transportation. I have considered the Parent’s other requests for relief in the Due Process Complaint and they have been denied for lack of evidence in the record.

ORDER

Based upon the Findings of Fact and Conclusions of Law, it is hereby ordered: 1) ORDER THAT, the District shall reimburse the Parent and/or directly pay the Private School for all tuition and fees for the Student’s unilateral placement at the Private School during the 2022/23 school year; 2) ORDER THAT, the District shall provide the Student with RSAs for: a. Occupational therapy 3x30 minutes per week 1:1; b. Speech Language Therapy 4x30 minutes per week 1:1 and 1x30 minutes per week in a group; c. A 1:1 full time paraprofessional; 3) ORDER THAT, the District shall provide the Student with an Assistive Technology, specifically a Speech Generated Device for school and home; and 4) ORDER THAT, the District shall provide the Student with special transportation specifically, from the closest safe curb location to school on an air conditioned bus.

SO ORDERED

DATED: May 10, 2023

Vanessa M. Gronbach

Vanessa M. Gronbach, Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

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

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

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

EXHIBITS

DISTRICT EXHIBITS

1. Prior Written Notice 6/13/2022 4 pages District

2. Prior Written Notice undated 2 pages District

3. Affidavit of School Psychologist undated 5 pages District

PARENT EXHIBITS

A. Impartial Hearing Request 8/24/22 8 pages

B. Findings of Fact and Decision IH # 211765 4/29/22 24 pages

C. Individualized Educational Program 3/18/21 19 pages

D. Individualized Educational Program 8/7/20 28 pages

E. Individualized Educational Program 4/6/22 34 pages

F. Psychoeducational Evaluation 3/20/22 5 pages

G. Occupational Therapy Report 3/28/22 3 pages

H. Teacher Report 3/31/22 3 pages

I. Speech and Language Therapy Report 4/3/22 3 pages

J. Prior Written Notice 6/10/22 6 pages

K. Email to the Committee on Special Education 6/13/22 3 pages

L. School Location Letter 6/14/22 3 pages

M. Resolution Agreement 7/13/22 3 pages

N. Letter to the Committee on Special Education 7/28/22 3 pages

O. Enrollment Contract 9/8/22 6 pages

P. Program Description Undated 3 pages

Q. Classroom Schedule and Profile 22-23 SY 5 pages

R. Goals and Objectives 22-23 SY 8 pages

S. Affidavit of Payment and Attendance 2/1/22 2 pages

T. Tax Return 2021 2 pages

U. Affidavit of School Director 2/27/23 15 pages

V. Affidavit of Parent 2/27/23 3 pages

Footnotes

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

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

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